State of California et al v. Trump et al
Filing
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MOTION for Partial Summary Judgment Re Section 2808 and NEPA filed by Commonwealth of Virginia, State of California, State of Colorado, State of Hawaii, State of Maryland, State of New Mexico, State of New York, State of Oregon, State of Wisconsin. Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 10/25/2019. Replies due by 11/1/2019. (Attachments: # 1 Appendix of Declarations re: Environmental Harms, # 2 Declaration of Colonel William Green, # 3 Declaration of Alison Lynn Reaser, # 4 Declaration of Heather Leslie, # 5 Request for Judicial Notice ISO Mot for Partial Summary Judgment Re Section 2808 and NEPA, # 6 Proposed Order Granting Motion for Partial Summary Judgment, # 7 Certificate/Proof of Service)(Leslie, Heather) (Filed on 10/11/2019)
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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
NOAH M. GOLDEN-KRASNER
SPARSH S. KHANDESHI
HEATHER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II
LEE I. SHERMAN (SBN 272271)
Deputy Attorneys General
300 S. Spring St., Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6404
Fax: (213) 897-7605
E-mail: Lee.Sherman@doj.ca.gov
Attorneys for Plaintiff State of California
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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STATE OF CALIFORNIA et al.;
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Plaintiffs, APPENDIX OF DECLARATIONS
REGARDING ENVIRONMENTAL
v.
HARMS IN SUPPORT OF PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT REGARDING SECTION
DONALD J. TRUMP, in his official
2808 AND NEPA
capacity as President of the United States of
America et al.;
Date:
November 20, 2019
Time:
10:00 am
Defendants. Judge:
Honorable Haywood S. Gilliam,
Jr.
Trial Date:
None Set
Action Filed: February 18, 2019
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Case No. 4:19-cv-00872-HSG
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Appendix of Declarations Re: Environmental Harms ISO Motion for Partial Summ. J. (4:19-cv-00872-HSG)
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DECLARATIONS CONCERNING ENVIRONMENTAL HARMS
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Exhibit Number
Declarant
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Kevin B. Clark (San Diego Natural History Museum)
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Dr. Kai Dunn (California Regional Water Quality Control Board,
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Colorado River Basin Region)
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David Gibson (California Regional Water Quality Control Board, San
Diego Region)
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Christopher D. Nagano (Center for Biological Diversity)
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Myles B. Traphagen (Wildlands Network)
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Sula Elizabeth Vanderplank (San Diego Zoo Global)
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Appendix of Declarations Re: Environmental Harms ISO Motion for Partial Summ. J. (4:19-cv-00872-HSG)
EXHIBIT 1
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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
SPARSH S. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
HEATHER C. LESLIE (SBN 305095)
Deputy Attorneys General
1300 I. St., Suite 125
P.O. Box 944255
Sacramento, CA 94244
Telephone: (916) 210-7832
Fax: (916) 327-2319
E-mail: Heather.Leslie@doj.ca.gov
Attorneys for Plaintiff State of California
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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STATE OF CALIFORNIA; STATE OF
COLORADO; STATE OF
CONNECTICUT; STATE OF
DELAWARE; STATE OF HAWAII;
STATE OF ILLINOIS; STATE OF
MAINE; STATE OF MARYLAND;
COMMONWEALTH OF
MASSACHUSETTS; ATTORNEY
GENERAL DANA NESSEL ON BEHALF
OF THE PEOPLE OF MICHIGAN;
STATE OF MINNESOTA; STATE OF
NEVADA; STATE OF NEW JERSEY;
STATE OF NEW MEXICO; STATE OF
NEW YORK; STATE OF OREGON;
STATE OF RHODE ISLAND; STATE OF
VERMONT; COMMONWEALTH OF
VIRGINIA; and STATE OF WISCONSIN;
4:19-cv-00872-HSG
DECLARATION OF KEVIN B. CLARK
IN SUPPORT OF PARTIAL MOTION
FOR SUMMARY JUDGMENT
REGARDING SECTION 2808
PROJECTS
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Plaintiffs,
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
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v.
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DONALD J. TRUMP, in his official capacity
as President of the United States of America;
UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF DEFENSE; PATRICK
M. SHANAHAN, in his official capacity as
Acting Secretary of Defense; MARK T.
ESPER, in his official capacity as Secretary of
the Army; RICHARD V. SPENCER, in his
official capacity as Secretary of the Navy;
HEATHER WILSON, in her official capacity
as Secretary of the Air Force; U.S.
DEPARTMENT OF THE TREASURY;
STEVEN T. MNUCHIN, in his official
capacity as Secretary of the Treasury; U.S.
DEPARTMENT OF THE INTERIOR;
DAVID BERNHARDT, in his official capacity
as Acting Secretary of the Interior; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KIRSTJEN M. NIELSEN, in
her official capacity as Secretary of Homeland
Security;
Defendants.
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
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I, Kevin B. Clark, declare as follows:
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I have personal knowledge of the facts set forth in this declaration. If called as a
witness, I could and would testify competently to the matters set forth below.
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I am the Director of BioServices for the San Diego Natural History Museum, a
position I have held since 2014.
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I have over twenty-five years of biological experience, including conducting surveys
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for a wide range of endangered species. I hold permits with the state and federal governments to
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nest search, monitor, and band rare and endangered passerines, shorebirds, and seabirds. I hold
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federal and state permits to survey and nest monitor endangered species such as the Southwestern
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Willow Flycatcher, Least Bell’s Vireo, Western Yellow-billed Cuckoo, and California
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Gnatcatcher. I am also permitted to mist-net, handle, and band migratory birds.
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I have conducted biological surveys throughout the U.S., Mexico, and Costa Rica,
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from bird banding in bottomland hardwood forests of Louisiana to mammal, bird, and reptile
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studies in the Sierra Nevada of California. I co-authored a book on the extinction of the Imperial
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Woodpecker that took me throughout tropical and montane habitats of northwestern Mexico. I
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have a Bachelor of Science degree from the University of California, Berkeley, and a Master of
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Science Degree in Ecology from Arizona State University. My thesis research involved the
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effects of habitat fragmentation on birds, mammals, and reptiles. My research analyzed
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landscape influences on biological communities and trophic level relationships of extirpated and
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persisting species. This research found that smaller habitat fragments supported fewer species of
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animals, and even common species in pre-fragmented landscapes could be extirpated once
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fragmentation occurred. In 2011, this research was published in the Journal of the Arizona-
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Nevada Academy of Sciences.
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From 2000-2006, I was a Fish and Wildlife Biologist with the U.S. Fish and
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Wildlife Service (USFWS), based in Carlsbad, California. In this capacity, I worked on the
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recovery of endangered species, including the California Gnatcatcher and California Least Tern,
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and was the regional recovery coordinator for the threatened Western Snowy Plover. I was the
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primary author of the 2003 designation of critical habitat for the California Gnatcatcher, which
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
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included a proposed rulemaking reclassifying the species as a Distinct Population Segment under
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the Endangered Species Act (68 Fed. Reg. 20228). As part of this analysis, I thoroughly
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reviewed all the pertinent literature and survey information for the species, conducted field
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surveys for the bird and its habitat requirements, and analyzed and finalized maps describing the
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range of the species and its essential habitat locations. In my capacity as a Fish and Wildlife
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Biologist I also participated in consultations required under Section 7 of the Endangered Species
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Act, which are required whenever a federal project may impact threatened or endangered species.
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Subsequent to my employment at the U.S. FWS, I founded my own company,
Clark Biological Services, to conduct focused surveys and conservation-based research on
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endangered species in Southern California. I possess authorized take permits from both federal
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and state wildlife agencies to conduct surveys and monitoring of the California Gnatcatcher. I
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authored numerous reports on the results of California Gnatcatcher surveys and monitoring,
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generally for large landowners in southern California such as the Department of Defense. After I
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founded my own conservation firm, I joined the San Diego Natural History Museum as the
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Director of BioServices, and in this capacity I coordinate the contracting within the science
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departments with various clients requiring applied ecological research, typically for large
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agencies and institutions. I also currently serve on the recovery teams of the endangered Masked
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Bobwhite Quail (Colinus virginianus ridgwayi) and the Sonoran pronghorn (Antilocapra
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americana sonoriensis), both convened by the U.S. FWS.
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I have analyzed the proposed border-infrastructure projects including San Diego
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Project 4, Yuma Project 6, and San Diego Project 11, as outlined in the table attached as Exhibit 1
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to the Declaration of Heather Leslie (“2808 Project Table”), and as described in the “List of
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Military Construction Projects” that Defendants filed in this matter on September 3, 2019, [ECF
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Doc. No. 206-2] (“2808 Project List”). These projects involve the construction of primary and
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secondary pedestrian fencing that will be 18 to 30 feet tall, based on the bollard-style pedestrian
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fencing used for other recent border-barrier projects that Defendants have undertaken. San Diego
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Project 4, Yuma Project 6, and San Diego Project 11 would also include the construction of roads
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and installation of lighting.
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
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8.
The Department of Homeland Security (“DHS”) has not provided detailed
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information regarding these projects. It is presumed that the projects will be similar to recently
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completed border wall projects in other portions of the California border, and will include a new
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bollard wall from 18 to 30 feet high, construction of a 20-foot wide all-weather road, and assorted
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temporary roads for access to the work sites. As with any construction project of this scale, it is
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assumed that extensive areas for equipment staging and materials storage will also be required in
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the vicinity of the project area at the border.
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I have considerable experience in evaluating the impacts caused by similar border
infrastructure projects. From 2011-2012, my company was hired to perform biological
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monitoring of the construction along the primary and secondary border fences from Bunker Hill
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(about a mile east of the Pacific Ocean) to the coast. My observations of the amount of area
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needed for staging equipment and materials, constructing roads for access to construction areas,
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and cut and fill activities during construction are directly relevant to the current proposal.
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In this declaration, I provide several examples specific to the San Diego 4, San
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Diego 11, and Yuma project sites, and to the border region more generally, to illustrate how these
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projects will cause irreparable harm to wildlife.
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Multiple peer-reviewed scientific studies have found that a variety of wildlife,
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ranging from mountain lions (Puma concolor) to bighorn sheep (Ovis canadensis) as well as
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ground dwelling non-migratory birds, are negatively affected by border fences disrupting their
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movement patterns. In disrupting movement, these barriers can reduce or restrict events such as
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juvenile and adult dispersal, as well as genetic interchange between populations.
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The American Society of Mammalogists, a professional, scientific, and
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educational society consisting of nearly 3,000 members, passed a resolution in June 2017
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opposing the construction of border infrastructure due to its well-documented negative effects on
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a variety of mammal species, many of them declining or endangered. The resolution calls upon
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the Federal Government to ensure that all boundary infrastructure, both existing and proposed,
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include features and modifications to maintain landscape permeability for mammalian
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populations to permit demographic and genetic exchange necessary for well-distributed, viable
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
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populations and the long-term persistence of species and mammalian community structure.
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According to the resolution, the actions of DHS on the US-Mexico border must receive regular
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environmental review to identify, monitor, and mitigate significant threats to the persistence of
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mammalian populations under the National Environmental Policy Act (“NEPA”) and the U.S.
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Endangered Species Act. In addition, the Southwestern Association of Naturalists (“SWAN”)
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passed a similar resolution in July 2017 opposing the construction of a border wall. SWAN is an
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international association of scientists, educators, and students founded in 1953 to promote the
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field study of plants and animals in the southwestern United States, Mexico, and Central America.
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Their resolution states, “. . . wall construction will irreparably harm many species and some of the
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Southwest’s most significant lands . . .THEREFORE BE IT RESOLVED that the Southwestern
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Association of Naturalists (SWAN) calls upon the Governors of all the border states (those of the
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U.S. and of Mexico), the U.S. Secretary of the Interior, the Secretaria de Medio Ambiente y
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Recursos Naturales (SEMARNAT) of Mexico, the Director of the U.S. Fish and Wildlife Service,
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and the Secretary for Homeland Security to immediately stop all plans for construction of the
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proposed border wall based on the potential negative impacts of the wall to native plants and
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wildlife and to mitigate the current negative impacts of the existing fence.”
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Effects of the Proposed San Diego Project 4
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San Diego Project 4 proposes the construction of 1.5 miles of new primary
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pedestrian fencing and 2 miles of new secondary fencing starting 3.6 miles east of the Otay Mesa
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Port of Entry and extending to the east. Extensive trenching, construction of roads, and staging of
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materials would also presumably be necessary to construct the proposed border fence in this
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location. The proposed construction area would cut through designated critical habitat for the
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endangered Quino Checkerspot Butterfly, as well as the federally designated Otay Mountain
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Wilderness Area.
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I conducted a site visit to the proposed construction area on October 2, 2019.
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During this visit I evaluated the habitat conditions of the work area, and observed access roads
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and staging areas.
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The endangered Quino Checkerspot Butterfly (Euphydryas editha quino) has been
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
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documented to occur within the project area. This butterfly is restricted to a few locations in
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Riverside and San Diego Counties and is found in open scrub and grassland areas that support its
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primary host plant, dwarf plantain (Plantago erecta). Dwarf plantain is a small annual herb found
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in open patches of bare ground. Adult Quino Checkerspot Butterflies seek out patches of dwarf
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plantain to lay their eggs, as the caterpillars are restricted to feeding on this host plant. After
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hatching, the caterpillars grow rapidly while feeding in patches of plantain, but if dry conditions
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occur, these caterpillars have the ability to “diapause” or enter biological stasis, where they bury
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themselves in the leaf litter, sometimes for years, until suitable conditions arrive again. The
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Quino Checkerspot Butterfly uses this strategy to persist in habitats that are prone to extended
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droughts. Quino can therefore persist in some areas where it has not been seen in years, but when
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suitable rains arrive and the dwarf plantain is in abundance, caterpillars in large numbers can
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emerge in short periods of time to take advantage of the conditions, resulting in brief population
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spikes. This is important because a lack of sightings in any given year does not necessarily mean
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that the species is not present.
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According to the California Natural Diversity Database, Quino Checkerspot
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Butterflies have been documented immediately adjacent to the border fence and on the
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surrounding slopes to the north, well within the proposed project area.
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The western third of the project area cuts through Quino Checkerspot Butterfly
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designated critical habitat. The presence of critical habitat and past occurrences of the species in
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the area indicates that the species is present, and the proposed work, including resurfacing of the
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roadways where the butterfly and its host plant have been found, will crush and bury diapausing
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larvae and host plant seed bank in the area. These activities will cause irreparable harm to the
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Quino Checkerspot Butterfly population and its critical habitat on Otay Mesa.
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The Coastal California Gnatcatcher (Polioptila californica californica; California
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Gnatcatcher) is a federally threatened species restricted to coastal southern California in areas of
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open coastal sage scrub vegetation. California gnatcatchers are obligate insectivores (meaning
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that they can only eat insects) that forage by “foliage gleaning”, a method of visually finding
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insects while actively searching through vegetation. These birds utilize shrub species found
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
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within coastal sage scrub vegetation for foraging. One prominent species utilized by the
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California gnatcatcher for foraging is coastal sagebrush (Artemisia californica) which commonly
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occurs in coastal sage scrub adjacent to the proposed border wall. This shrub is considered a
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primary constituent element within California gnatcatcher critical habitat. California Gnatcatcher
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territories average approximately 9 acres, and expand in the winter to take in a larger foraging
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area, often by as much as 80%.
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The California Natural Diversity Database documents California Gnatcatchers as
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occurring within the project area. During a site visit October 2, 2019, I detected a California
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Gnatcatcher approximately two miles northwest of the project, but numerous pairs have been
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detected much closer. Habitat on the slopes adjacent to the proposed work and staging areas is
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suitable for this species, consisting of coastal sage scrub dominated by shrubs such as California
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sagebrush, and it is expected that this species is currently found in the work area.
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The construction of a border wall fence and related road network will destroy
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essential habitat for numerous gnatcatcher pairs due to vegetation clearance activities that will be
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required to construct both the primary and secondary fences. Additionally, the steep topography
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of this area will require new road networks for access to the work areas, and significant cut and
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fill operations will be undertaken, as was needed in previous border fence construction projects in
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and around Otay Mountain. These destructive construction activities will result in significant
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displacement of California gnatcatchers into already diminished and limited habitat areas. As
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these habitats are already occupied by adjacent pairs, the affected gnatcatchers will either be
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required to move or challenge adjacent pairs for their occupied territories. The result will be a
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substantial reduction of the population in the area, and irreparable harm to the species and its
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habitat.
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The Western Burrowing Owl (Athene cunicularia hypugaea, Burrowing Owl) is a
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burrow-inhabiting small owl restricted to the western U.S. and northern Mexico, where it occurs
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in declining numbers in open grasslands and agricultural areas. Diurnal (daytime) activities of
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owls are often restricted to within 250 meters of the nest burrow. However, nocturnal foraging
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activities extend out much farther and average home range sizes are determined by the extent and
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
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quality of foraging habitat. A study in San Diego County found that burrowing owl home ranges
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averaged 20 acres. A study of two urban sites in northern California determined that home ranges
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averaged 22 acres.
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The Burrowing Owl is considered a Bird of Conservation Concern by the U.S.
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Fish and Wildlife Service, as well as a Species of Special Concern by the California Department
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of Fish and Wildlife. The 1988 amendment to the Fish and Wildlife Conservation Act mandates
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the USFWS to “identify species, subspecies, and populations of all migratory nongame birds that,
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without additional conservation actions, are likely to become candidates for listing under the
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Endangered Species Act (ESA) of 1973.” Birds identified as such are deemed priorities for
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conservation actions, and the lists are consulted for actions taken on Federal lands in accordance
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with Executive Order 13186, “Responsibilities of Federal agencies to protect migratory birds”.
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BCC species also receive priority attention in the USFWS when allocating research, monitoring,
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and management funding. California Species of Special Concern are defined as species or
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subspecies that are experiencing population declines or range retractions that, if continued, could
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qualify them for state threatened or endangered status. According to a California Department of
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Fish and Wildlife Report, in California, threat factors affecting Burrowing Owl populations
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include “habitat loss, degradation and modification, and eradication of ground squirrels resulting
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in a loss of suitable burrows required by burrowing owls for nesting, protection from predators,
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and shelter.”
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As stated in the draft Burrowing Owl Conservation and Management Plan for San
Diego County:
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In southern California, the western burrowing owl . . . has experienced declining
populations for decades. This species was once widespread and abundant in San Diego
County during the breeding season. The San Diego Bird Atlas provides a detailed account
of declines in the County population since the 1920s, when the owl was common along an
elevational gradient extending from coast to foothills. The number of occupied sites had
declined by the 1970s, although breeding owls could still be found in coastal locations . . .
as well as several inland sites that are no longer occupied by BUOW [Burrowing Owls].
Nearly all coastal populations were extirpated [meaning a local population extinction] by
1997 due to intensive urban development and habitat fragmentation. Extensive field
surveys conducted in the years 1997-2002 for the San Diego Bird Atlas documented five
locations of breeding pairs. In the 15 years since those surveys, the number of breeding
pairs has dropped to the point that breeding pairs are now only detected in scattered sites
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
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on Otay Mesa.
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A Memorandum dated September 25, 2017, that I have reviewed and was written
by U.S. Customs and Border Protection staff, states that during a one-day survey in August 2017,
immediately west of the proposed construction area, contract biologists found 37 active
Burrowing Owl burrows and 19 individual owls. See Memorandum by Border Patrol staff, dated
Sept. 25, 2017, and attached as Exhibit A to this declaration. On another property further to the
west of this project, also along the border fence, nine Burrowing Owl pairs utilizing 165 acres of
habitat were found. This area of eastern Otay Mesa is the last stronghold for the species in the
County, and further loss of both occupied burrows and foraging habitat will only hasten its
decline.
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The proposed construction activities, while still undefined and poorly documented,
include disturbance to foraging habitat and occupied burrows through the extensive road work,
and vegetation clearing and trenching along the primary and secondary border fences. Burrowing
Owls are especially sensitive to construction disturbance due to their unique behavior. During
daylight hours, they stand guard over their burrow, which may include eggs and young, and are
easily flushed by adjacent human disturbance or activities. Repeated flushing during periods of
incubation or while feeding chicks has extremely negative effects, including cooling of eggs,
reduced feeding of chicks, or increased exposure to predators, reducing the percentage of chicks
surviving to adulthood.
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Besides direct flushing, the extensive clearing of vegetation, as would be necessary
for the construction of staging areas for materials and road access to the site, would remove
foraging habitat from this owl population. Due to the high density of owls in such a relatively
restricted area, with nineteen individual owls observed during a one-day survey, loss of foraging
habitat would necessarily cause additional competition for resources among the owls, leading to
the displacement of some younger or less aggressive birds. Displaced birds are subject to
increased mortality rates as they search the area for suitable unoccupied habitat. These activities
would therefore hasten the decline of this last breeding population in coastal southern California.
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
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27.
In southern California, vernal pools are shallow depressions overlying
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impermeable substrates, typically clay hardpans, which fill with winter rainfall and retain ponded
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water through the spring. These unique seasonal wetlands are too short-lived to harbor fish, and
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therefore support specialized species that cannot survive fish predation, but can reproduce quickly
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in the rapidly drying pools. Species such as fairy shrimp, spadefoot toads, and specialized plants
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with both aquatic and terrestrial components of their life cycle can only be found in vernal pools.
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In Southern California, due to the massive destruction of vernal pools on flat coastal mesas
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(upwards of 90% have been destroyed), several of these species have now been protected as
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Endangered Species under the Federal Endangered Species Act.
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Fairy shrimp reproduce by means of hardened “cysts”, analogous to hard-shelled
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plant seeds, which are released by the female after mating. These cysts remain in the soil for
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extended periods, potentially years, until the right combination of soil moisture and temperature
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returns to stimulate hatching. Only a percentage of cysts hatch during any particular period with
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suitable conditions, therefore, “cyst banks” analogous to seed banks, develop in the soil
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consisting of viable but unhatched cysts from numerous previous generations in a state of
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diapause, or biological stasis, awaiting future suitable hatching conditions.
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29.
Two federally endangered species of fairy shrimp inhabit the border zone in Otay
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Mesa. The San Diego Fairy Shrimp (Branchinecta sandiegonensis) is restricted to vernal pools
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and other temporary aquatic environments in San Diego, Orange, and Riverside Counties. It can
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survive in shallow, short-lived pools that fill for only a few weeks. Its short life cycle allows it to
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persist in pools that have been damaged or disturbed, and in some cases it can survive in pools on,
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or adjacent to, dirt roads bisecting vernal pool landscapes. Despite this tolerance for some
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disturbance, the majority of vernal pools in southern California that would have supported this
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species have now been irreparably lost, and it only survives in scattered parks and preserves that
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are managed for vernal pool species.
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The second endangered fairy shrimp inhabiting the border zone in Otay Mesa is
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the Riverside Fairy Shrimp (Streptocephalus woottoni). In contrast to the wider variety and
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distribution of pools inhabited by the San Diego Fairy Shrimp, the Riverside Fairy Shrimp can
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
1
only occur in deeper pools holding water for extended periods of time. Upon listing as an
2
endangered species in 1993, Riverside fairy shrimp were known to inhabit 9 vernal pool
3
complexes within Riverside, Orange, and San Diego counties, and Baja California, Mexico.
4
Extensive survey work since its listing as an Endangered Species have now documented 45
5
known occupied vernal pool complexes, but it is still restricted to the same geographic
6
distribution in southern California.
7
31.
Past border-barrier construction activities to the west of where San Diego Project 4
8
is being constructed included improvements to access roads to facilitate project construction. For
9
example, in order to construct the wall prototypes access roads were repaired and improved to
10
support the movement of heavy trucks and equipment to the prototype construction area from the
11
nearest paved roads to the west. That road work consisted of clearing vegetation, filling potholes,
12
leveling and grading, and stabilizing the road with aggregate or other stabilized road surface
13
course. See Memorandum by Border Patrol staff, dated Sept. 25, 2017, and attached as Exhibit A
14
to this declaration. It is clear from the site visit conducted on October 2, 2019, as well as analysis
15
of aerial imagery, that the only feasible access to the western portion of the San Diego Project 4
16
construction area is on unimproved dirt roads that lead from the prototype area to the west. It is
17
expected that the current proposal for San Diego Project 4 would conduct similar road grading
18
activities through this area as it is the primary means of accessing the construction zone. The
19
landscape in the immediate vicinity of the prototype area and along the dirt roads to the east and
20
north, leading to San Diego 4, supports numerous vernal pools. Several of these pools occur
21
within and adjacent to dirt roads that will be utilized by heavy equipment, and where additional
22
grading, vegetation clearing and filling may occur. This roadwork would damage vernal pools
23
and cause irreparable harm to the fairy shrimp and other vernal pool species.
24
32.
Adjacent to the border wall zone on Otay Mesa, several recent biological surveys
25
on private properties have found that the entire road network within, and adjacent to, the work
26
area contains vernal pools and numerous rare and endangered species associated with them. For
27
example, the access roads to the west of the project area, which are the main conduits for the
28
heavy equipment and materials being brought onto the site, support rare and endangered species
10
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
1
such as Riverside Fairy Shrimp, San Diego fairy Shrimp, Quino Checkerspot Butterfly, Western
2
Spadefoot Toad, and San Diego Button Celery. Surveys on private parcels to the immediate north
3
and west of the construction area depict numerous vernal pools occupied by both fairy shrimp
4
species. Surveys for the Otay Business Park development, immediately north of the border fence,
5
found San Diego Fairy Shrimp at ten sites, including nine pools along the road network
6
immediately north of the secondary fence, to the west of the construction area. This area is also
7
designated as critical habitat for the species. Riverside Fairy shrimp were also found in three
8
pools, all of which occur along the main east-west dirt road that would be used for access to the
9
construction area. Also found within these same pools are other federally endangered species,
10
such as San Diego Button Celery (Eryngium aristulatum var. parishii) and Spreading Navarretia
11
(Navarretia fossalis).
12
33.
These species are persisting in and adjacent to the disturbed dirt roadways due to
13
their brief reproduction period when the pools are full, and when vehicles avoid these pools in
14
order to avoid getting stuck in the deep-clay mud. However, once road modifications of grading,
15
“pothole filling”, and repaving with aggregate occur, these pools will cease to refill with water,
16
and the cysts and seeds embedded in the soil will be crushed and buried, preventing their hatching
17
in future rain events. These actions will cause irreparable harm to these vernal pool species, and
18
reduce the potential for recovery of the species, as mandated under the Federal Endangered
19
Species Act.
20
Effects of the Proposed San Diego Project 11
21
34.
San Diego Project 11 proposes the construction of three miles of new secondary
22
pedestrian fencing starting two miles west of the Tecate Port Of Entry and extending 1.5 miles
23
east of the port. The project footprint here is characterized by natural habitats with minimal
24
disturbance, and the proposed fencing here will harm multiple species of lizards, birds and
25
mammals. The Quino Checkerspot Butterfly, discussed above, has been reported from this area.
26
In addition to the to the butterfly, numerous rare species occur in the project area and would be
27
harmed or killed by the extensive trenching, construction of roads, and staging of materials
28
necessary to construct the proposed border fence. These include:
11
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
1
Baja California coachwhip (CA State Species of Special Concern)
2
Coast patch-nosed snake (CA State Species of Special Concern)
3
4
Red-diamond rattlesnake (CA State Species of Special Concern)
Cope’s leopard lizard (CA State Species of Special Concern)
5
Coast horned lizard (CA State Species of Special Concern)
6
7
8
9
San Diego banded gecko (CA State Species of Special Concern)
Coastal whiptail (CA State Species of Special Concern)
Gray Vireo (CA State Species of Special Concern)
10
Townsend’s big-eared bat (CA State Species of Special Concern)
11
Pallid bat (CA State Species of Special Concern)
12
California Leaf-nosed bat (CA State Species of Special Concern)
13
14
Western Yellow bat (CA State Species of Special Concern)
Western mastiff bat (CA State Species of Special Concern)
15
Pocketed free-tailed bat (CA State Species of Special Concern)
16
17
18
Big free-tailed bat (CA State Species of Special Concern)
San Diego black-tailed jackrabbit (CA State Species of Special Concern)
19
Dulzura pocket mouse (CA State Species of Special Concern)
20
Northwestern San Diego pocket mouse (CA State Species of Special Concern)
21
Jacumba pocket mouse (CA State Species of Special Concern)
22
San Diego desert woodrat (CA State Species of Special Concern)
23
24
Southern grasshopper mouse (CA State Species of Special Concern)
American badger (CA State Species of Special Concern)
25
26
27
28
In my experience, if Defendants had conducted environmental review under NEPA for San
Diego Project 11, the USFWS would have considered and addressed potential impacts to these
listed species as part of its review of the project during the NEPA process.
12
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
1
2
3
Effects of proposed Yuma Project 6
35.
Yuma Project 6 proposes the construction of approximately 1.5 miles of a new
4
primary and secondary pedestrian fence system starting at Andrade Port Of Entry and extending
5
to the west into the Algodones sand dunes. Additional proposed fencing would also occur east of
6
the Colorado River and continue south for approximately one mile.
7
36.
The proposed primary and secondary fence in the Yuma area would affect
8
numerous rare and endangered species along the Colorado River and adjacent desert uplands that
9
would be harmed or killed by the extensive trenching, construction of roads, and staging of
10
materials necessary to construct the proposed border fence. These include:
11
12
Flat-tailed Horned Lizard (CA State Species of Special Concern)
13
Colorado Desert Fringe-toed Lizard (CA State Species of Special Concern)
14
Sonoran mud turtle (CA State Species of Special Concern)
15
Loggerhead shrike (CA State Species of Special Concern)
16
LeConte’s Thrasher (CA State Species of Special Concern)
17
Yuma Ridgway’s Rail (Federally endangered)
18
Arizona Bell’s Vireo (CA State Species of Special Concern)
19
Gila Woodpecker (CA State Species of Special Concern)
20
Southwestern Willow Flycatcher (Federally endangered)
21
Western Yellow-billed Cuckoo (Federally endangered)
22
Townsend’s big-eared bat (CA State Species of Special Concern)
23
Pallid bat (CA State Species of Special Concern)
24
California Leaf-nosed bat (CA State Species of Special Concern)
25
Western Yellow bat (CA State Species of Special Concern)
26
Western mastiff bat (CA State Species of Special Concern)
27
Pocketed free-tailed bat (CA State Species of Special Concern)
28
Big free-tailed bat (CA State Species of Special Concern)
13
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
1
2
In my experience, if Defendants had conducted environmental review under NEPA for
3
Yuma Project 6, the USFWS would have considered and addressed potential impacts to these
4
listed species as part of its review of the project during the NEPA process.
5
37.
The flat-tailed horned lizard (Phrynosoma mcallii) is found in a restricted area of
6
low desert habitat in southeastern California, southwestern Arizona, and adjacent Mexico. This
7
lizard was proposed by the U.S. Fish and Wildlife Service for listing as a threatened species under
8
the Endangered Species Act. On March 15, 2011, this proposal was withdrawn by the Service,
9
which determined that the species did not need the protection of the Act, in part due to ongoing
10
conservation efforts such as the establishment of a Rangewide Management Strategy, an excerpt
11
of which is attached as Exhibit 6 to Plaintiffs’ Request for Judicial Notice, that was filed on June
12
12, 2019 [ECF Doc. No. 176-3]. The lizard is currently considered a California Species of
13
Special Concern. It is typically found in sandy flats and dunes that often support sparse desert
14
vegetation. Though this species is typically found in areas of fine windblown sand, it occasionally
15
is found in badlands, saltbush flats, and gravelly soils. This lizard is a specialized predator of
16
ants, and has declined throughout its range due to habitat fragmentation and degradation from
17
agricultural development, urbanization, and off-road vehicle use. For much of the year it stays
18
concealed in underground burrows, emerging during warmer months to forage for prey.
19
38.
The flat-tailed horned lizard is currently known to occur along the border zone
20
within the proposed construction area. The extensive trenching, construction of roads, and
21
staging of materials proposed in this area would harm or kill lizards that were either active or in
22
underground burrows in the area.
23
39.
The Yuma Ridgway’s Rail (Rallus obsoletus yumanensis) is a federally
24
endangered bird restricted to marsh and riparian habitats within the watershed of the lower
25
Colorado River and adjacent desert marshes. This secretive species stays well hidden in dense
26
vegetation located in shallow water. The Yuma Ridgway’s Rail is known to occur along the
27
Colorado River in the vicinity of the border. As this rail is secretive and easily disturbed by
28
human activities, the proposed one mile of construction activity immediately in and adjacent to
14
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
1
the river will destroy nesting habitat and disturb nesting rails along a significant stretch of the
2
river.
3
4
5
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on October 8, 2019, at San Diego, California.
6
7
8
__
9
____________
Kevin B. Clark
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)
EXHIBIT A
Case 3:17-cv-01215-GPC-WVG Document 18-2 Filed 10/06/17 PageID.423 Page 217 of 239
MEMORANDUM FOR:
Loren Flossman
Director
Border Patrol and Air and Marine
Program Management Office
FROM:
Paul Enriquez
Real Estate and Environmental Branch Chief
Real Estate, Environmental, and Leasing Division
Border Patrol and Air and Marine
Program Management Office
SUBJECT:
Construction and Evaluation of Border Wall Prototypes, U.S.
Border Patrol, San Diego Sector, California
Purpose:
On August 2, 2017 the Secretary of the Department of Homeland Security (OHS) issued a
waiver pursuant to Section 102(c) of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) (the Waiver). Among the projects covered by the Waiver is the
construction and evaluation of border wall prototypes (Project) in San Diego County, California.
This memorandum provides a description of Project activities, summarizes the results ofrecent
natural and cultural resource surveys performed within areas to be affected by the Project, and
analyzes the potential effects of the Project on the resources present within the Project Area
(hereinafter defined). Furthermore, the memorandum provides best management practices
(BMPs) to be implemented during the Project to minimize or avoid potential Project impacts.
Background and History:
The United States Border Patrol (USBP) San Diego Sector (SDC) in southern California is one
of the busiest USBP sectors in the Nation. Although the construction of border infrastructure
and other operational improvements over the last two decades has improved border security in
the sector, SDC remains an area of high illegal entry.
On August 2, 2017, the Secretary ofDHS, pursuant to his authority under Section I02(c) of
IIRIRA of 1996, issued the Waiver, which sets aside certain laws, regulations, and other legal
requirements in order to ensure the expeditious construction of barriers and roads in the vicinity
of the international land border of the United States in SDC, including the Project. Although the
Secretary' s waiver means that U.S. Customs and Border Protection (CBP) no longer has any
specific legal obligations under the laws that are included in the waiver, CBP remains committed
DHS0216
Case 3:17-cv-01215-GPC-WVG Document 18-2 Filed 10/06/17 PageID.424 Page 218 of 239
Construction of SDC Border Wall Prototype
2
to the protection of valuable natural and cultural resources through responsible environmental
stewardship.
Proiect Description:
CBP will construct and evaluate border wall prototypes in an approximately 120' by 1,000'
corridor on the U.S./Mexico border in the alignment of the secondary border fence between the
Otay Mesa Land Port of Entry (LPOE) and the western base of Otay Mountain in San Diego
County, California (the Construction Corridor). The Construction Corridor is situated within an
area that currently serves as a border enforcement zone with primary and secondary border
fences, border roads, border lighting, and surveillance technology. CBP will build eight different
border wall prototypes side by side in the Construction Corridor. The construction design,
materials, methods, and equipment will vary by prototype. In general, construction activities
will consist of excavating for the prototype foundations, forming concrete, and assembling and
installing the 30' by 30' prototypes. A mockup of each prototype will be further evaluated at the
USBP SDC Support Facility on Pogo Row.
Access to the prototype construction area will be along the secondary border road from the west
and via two north-south roads near the LPOE; these access roads will be repaired or improved to
support the movement of heavy trucks and equipment to the prototype construction area. Access
road repair and improvement will consist of clearing vegetation, filling potholes, leveling and
grading, and stabilizing the road with aggregate or other stabilized road surface course. A gate
will be installed on the existing secondary fence to allow the movement of construction traffic
from the entrance road through the fence and onto the border road. Construction laydown and
staging will be done immediately south of the prototype construction area. The laydown and
staging area will include concrete washout stations, sanitary stations, and equipment refueling
stations. A remote video surveillance system (RVSS) will also be installed in the laydown and
staging area.
The Construction Corridor, access roads, laydown and staging areas and RVSS placement area is
referred to collectively as the Project Area. The total Project ,Area is estimated at approximately
52 acres, of which approximately 8 acres will be temporary disturbance and approximately, 2
acres will be new permanent disturbance.
Existing Environment:
The Project Area is located in San Diego County, California. It is situated along the
U.S./Mexico border between the western base of Otay Mountain and the Otay Mesa Land Port of
Entry (LPOE) within Section 36 of Township 18 South, Range 1 West, and Sections 31 and 32,
Township 18 South, Range 1 East (map reference: Otay Mesa, California, USGS 7.5'
topographic quadrangles). Additional evaluation of prototype mockups will occur at the USBP
SDC Support Facility on Pogo Row. See Figure l for a Project location map.
The Project Area, including the Construction Corridor, is located on Federal government
property. The Construction Corridor, laydown and staging areas, and RVSS placement area are
managed by CBP for purposes of border security. The access road to be used as an entrance to
the Construction Corridor is a two track road located on Federal government property managed
DHS0217
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Construction of SDC Border Wall Prototype
3
by the General Services Administration (GSA). The access road to be used as an exit from the
prototype construction area is a graded dirt road located on an easement held by CBP. The
laydown, staging, and RVSS placement area is heavily disturbed and currently serves as a border
enforcement zone with primary and secondary border fences, all-weather road, and border
lighting and surveillance technology. The USBP SDC Support Facility is a fully developed
facility located on Federal government property managed by CBP.
Field ~urveys for natural and cultural resources were conducted on August 23, 2017 by Gulf
South Research Corporation (GSRC) on behalf of CBP. The surveys covered the entire Project
Area but not the mockup evaluation location, which is completely paved and devoid of
vegetation. The survey area included the prototype construction area, all potential access roads,
and the laydown, staging, and RVSS placement area. See Figure 2 for a Project Area overview
map.
The Construction Corridor is heavily disturbed and bound by disturbed nonnative grassland to
the north and the U.S./Mexico Border to the south. A majority of this portion of the Project Area
is devoid of vegetation. A small strip of heavily disturbed and frequently mowed non-native forb
grassland runs along the southern edge of the Project Area adjacent to the border. The entrance
road is bound by industrial buildings to the north and east, and by heavy-truck transport
infrastructure to the west and south. This area shows evidence of heavy prior disturbances in the
form of grading and frequent mowing. The vegetation community is non-native grassland with
mixed forbs dominated by brome grass (Bromus spp.), Russian thistle (Salsola sp.), prickly
lettuce (Lactuca serriola), and Australian saltbush (Atriplex semibaccata). The exit road is an
unpaved heavily disturbed area running south of Via de La Amistad to the secondary border
fence. This area is bound by industrial buildings to the west, disturbed non-native grassland to
the east, and the border enforcement zone to the south. The vegetation community in the
immediate vicinity can best be described as non-native grassland with mixed forbs and shrubs.
This portion of the Project Area is completely disturbed and is nearly devoid of vegetation. The
laydown, staging, and RVSS placement area is heavily disturbed from frequent mowing of
vegetation and vehicular traffic. The vegetation community in the immediate vicinity can best
be described as non-native grassland with mixed non-native forbs dominated by brome grass,
Russian thistle, prickly lettuce, and Australian saltbush.
The burrowing owl (Athene cunicularia; [BUOW]) is a small owl distributed throughout western
North America that has been designated as a Species of Special Concern in the State of
California and is protected under the Migratory Bird Treaty Act. Common habitat includes open
areas containing mammal burrows within sparsely vegetated arid and semi-arid environments.
BUOWs require small mammal burrows for rearing and fledging young and for refuge. BUOWs
generally stay close to their burrows during the day and forage further .from the nest or refuge
burrow between dusk and dawn. The current breeding range ofBUOW includes much of the
state of California, including most of San Diego County along the border with Mexico.
During the survey, multiple BUOWs and 37 active BUOW burrows were observed in the
laydown, staging, and RVSS placement area. GSRC biologists reported 19 BUOWs, 12 of
which were observed at burrow sites. Additionally, several small mammal burrows were
. observed within the entrance road portion of the Project Area, primarily along the western edge
of the GSA managed property. However, there was no evidence of occupation or use of these
DHS0218
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Construction of SDC Border Wall Prototype
4
burrows by BUOW and no BUOWs were observed in this portion of the survey area. There was
no evidence of any active bird breeding or nesting behaviors observed in the Construction
Corridor or the exit road portions of the Project Area.
The Project Area is located within one mile of designated Critical Habitat for the coastal
California gnatcatcher (Polioptila californica; [CAGN]). The CAGN is Federally listed as
threatened. The CAGN is the northenunost species of California gnatcatcher. It is a small, nonmigratory songbird occurring along the Pacific coasts of southern California and northern Baja
California, Mexico. The CAGN is associated with coastal scrub plant communities, including
coastal sage scrub and coastal succulent scrub. There was no evidence of suitable habitat or
occupation of the Project Area by CAGN.
The eastern portion of the Project Area extends into designated Critical Habitat for the Quino
checkerspot butterfly (Euphydryas editha quino; [QCB]). The QCB is Federally listed as
endangered. The QCB is found in several plant communities, from scrub on coastal bluffs,
coastal sage, chaparral, and oak woodlands to desert pinyon-juniper woodlands. However, it is
only found in openings within these plant communities having a sufficient cover of larval food
plants and annual forbs that provide nectar for adults. There was no evidence of suitable habitat
or occupation of the Project Area by QCB.
The Project Area extends into designated Critical Habitat for San Diego Fairy Shrimp
(Branchinecta sandiegonensis; [SDFS]). The SDFS is a small aquatic crustacean that is
generally restricted to vernal pools in southern California and northwestern Baja California. The
SDFS is Federally listed as endangered. There was no evidence of suitable habitat or occupation
of the Project Area by SDFS.
Critical habitat for Riverside Fairy Shrimp (Streptocephalus woottoni; [RSFS]) occurs within 1.0
mile of the Project Area. The RSFS is a small aquatic crustacean that is generally restricted to
vernal pools greater than 12 inches in depth in Riverside, Orange, and San Diego Counties in
California. The RSFS is Federally listed as endangered. There was no evidence of suitable
habitat or occupation of the Project Area by RSFS.
Vernal pools are a type of temporary wetland that consist of depressions in areas where a hard
underground layer prevents rainwater from draining downward into the subsoils. Rainwater
typically fills the pools in winter and spring and gradually evaporates from late spring to
summer. Vernal pools are some of the most ecologically important and distinct habitats in
California, supporting a diversity of flora and fauna, including species found only in these
habitats such as SDFS and RFS. As wetlands, vernal pools are protected by state and Federal
laws. Vernal pools are known to occur north of the Project Area. However, no vernal pools,
wetlands, or other surface waters were observed within the Project Area. A shallow ditch within
the border enforcement zone to the east of the entrance road and outside of the Project Area was
observed to display vegetation and hydrology consistent with wetlands and is a potential wetland
habitat.
No other rare, threatened, or endangered species were observed within the survey area and other
than the BUOWs, no other nesting or breeding bird behavior was observed.
DHS0219
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Construction of SDC Border Wall Prototype
5
No archaeological sites or historic properties were identified during the pedestrian archaeological
survey. Several manmade features were observed within the Project Area, such as a drainage
channel and storm drain. The drainage channel is believed to be modem in nature and origin
(i.e., within the last 10 to 20 years). A fragment of a ceramic roof tile was also noted within the
GSA-managed property near the entrance road, but appears to be displaced, along with refuse,
and is likely modem. In addition, two possible pieces of lithic debitage were also noted within
the laydown, staging, and RVSS placement area. However, both.items are located between the
primary fence and the all-weather road to the north, and within an area that has been subject to
significant earth-moving activities (e.g., blading, grading, leveling). It is likely that the items
were created through pressure of heavy equipment (e.g., bulldozer or grader) traveling over the
ground surface.
The Project Area is located within San Diego County, California within the San Diego Air
Pollution Control District. San Diego County is a Federal and State nonattainment area for 8hour ozone and a State nonattainment area for I-hour ozone and particulate matter (PMlO and
PM2.5). San Diego County is in attainment or unclassified status for all other criteria air
pollutants.
Environmental Analysis:
Based on the results of the field surveys and knowledge of the Project Area, CBP identified
sensitive species, surface water, cultural and historical resources, and air quality as the
environmental resource categories with the greatest potential to be impacted by the Project. A
review was conducted to ensure that the impacts from the Project will not adversely affect these
resources. Other environmental impacts are not expected to result from the Project.
(a) Sensitive Species
In August 2017, biologists conducted a pedestrian survey of the Project Area to identify sensitive
species, candidate species, and/or critical habitat present; consider project revisions to avoid or
minimize effects; and provide options for reasonable mitigation of unavoidable effects.
During the survey, multiple BUOWs and 37 active BUOW burrows were observed in the
laydown, staging, and RVSS placement area. GSRC biologists reported 19 BUOWs, 12 of
which were observed at burrow sites. The California Department of Fish and Wildlife
recommends a 50-meter buffer around active BUOW burrows during the non-breeding season
(September 1 through January 31 ). A 50-meter buffer around all but the two easternmost
observed burrows will be enforced by CBP for Project activities. The two easternmost observed
burrows will be directly affected by site grading and are within 50 meters of the area to be
affected by the RVSS placement. CBP will install one-way exclusionary doors on these two
easternmost BUOW burrows to be affected as the result ofRVSS placement and wait until the
burrows are vacated before collapsing them to ensure no direct mortality to BUOW individuals
occurs. Because BUOW burrows and suitable habitat are relatively common throughout San
Diego County along the border with Mexico, overall impacts to BUOW from a loss of two
burrows are considered minor.
DHS0220
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Construction of SDC Border Wall Prototype
6
The Project Area is located within designated Critical Habitat for QCB and SDFS and in the
vicinity of designated Critical Habitat for CAGN and RSFS. However, no evidence of suitable
habitat or occupation of the Project Area was observed. Due to the absence of suitable habitat
for these species within the Project Area, the Project will have no impact on CAGN, QCB,
SDFS, or RSFS or their designated Critical Habitat. Furthermore, the Project will have no ·
impact on any other state or Federal sensitive or protected species.
(b) Cultural and Historical Resources
In August 2017, an archaeologist conducted a pedestrian survey of the Project Area to identify
cultural and historical resources; consider project revisions to avoid or minimize effects; and
provide options for reasonable mitigation of unavoidable effects. No archaeological sites or
historic properties were identified during the pedestrian archaeological survey. Due to the
absence of cultural resources sites in the Project Area, the Project is not likely to have any impact
on cultural and historical resources.
(c) Air Quality
San Diego County is within a Federal and State nonattairunent area for 8-hour ozone and a State
nonattainment area for I-hour ozone, PMlO, and PM2.5. A conformity determination would be
required for each pollutant where the total of direct and indirect emissions in a non-attairunent or
maintenance area caused by the Federal action will equal or exceed specified emissions rates.
Temporary and minor increases in air pollution will occur from the use of construction
equipment (combustion emissions) and the disturbance of soils (fugitive dust) during
construction. Several sources of air pollutants will contribute to the overall air impacts of the
Project, including: combustion engines of construction equipment; construction workers
commuting to and from work; supply trucks delivering materials to the construction site; and
fugitive dust from job-site ground disturbances. Fugitive dust emissions for the Project were
calculated based on assumptions about equipment to be used, size of the Project Area, and
construction duration. The total air quality emissions from the construction activities were
estimated and compared to the de minimis thresholds of the General Conformity Rule.
Total Air Emissions (tons/year) from the Project versus the de minimis Threshold Levels
for San Die o Coun
Pollutant
Total (tons! ear de minimis Thresholds (tons! ear
co
<3
100
Volatile Organic Compounds (VOC) < 1
50
Nitrous Oxides (NOx)
<2
100
PM-10
<2
100
PM-2.5
<2
100
<1
S02
100
CO2 and CO2 e uivalents
< 1,200
27,557
The construction and evaluation activities associated with the Project do not exceed Federal de
minimis thresholds for air pollution emissions. As there are no violations of air quality standards
DHS0221
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Construction ofSDC Border Wall Prototype
7
and no conflicts with the state implementation plans, the Project will not have a major impact on
air quality.
(d) Surface Water
The Project will not result in impacts on any vernal pools, wetlands, or other surface waters, as
no vernal pools, wetlands, or other surface waters are located within the Project Area. A shallow
ditch within the border enforcement zone to the east of the entrance road and outside of the
Project Area displayed vegetation and hydrology consistent with wetlands and is a potential
wetland. However, all impacts from the Project will be contained within the Project Area
through the implementation of a Storm Water Pollution Prevention Plan (SWPPP), and no
impacts to the potential wetland will occur. The SWPPP measures will be monitored during
construction. The Project will not have a major impact on surface water quality.
Best Management Practices:
GENERAL
CBP will clearly demarcate project construction area perimeters. No disturbance outside that
perimeter will be authorized without prior coordination and approval.
Within the designated disturbance area, CBP will minimize the area to be disturbed by limiting
deliveries of materials and equipment to only those needed for effective project implementation.
CBP will provide an environmental briefing to all construction crew members working on the
Project, informing them of sensitive resources present within the Project Area and BMPs to be
implemented.
VEGETATION
·CBP will minimize habitat disturbance by restricting vegetation removal to the smallest possible
project footprint. Native seeds or plants, which are compatible with the enhancement of habitat
for sensitive species, will be used to the greatest extent practicable, to rehabilitate staging areas
and other temporarily disturbed areas.
Construction equipment will be cleaned at temporary staging areas, in accordance with BMPs,
prior to entering and departing the Project Area to minimize the spread and establishment of nonnative invasive plant species.
WILDLIFE RESOURCES
If construction activities are scheduled during nesting season (February 15 through September
1), monitors will perform surveys in advance of construction activity to identify active nests. If
the monitor observes a nest with eggs or chicks, he will work with the construction crew to do
one of the following: 1) avoid the nest, so long as it does not impact the scope of work for road
improvement activities; 2) if appropriate, take it to a rehabilitation center; or 3) if neither 1 nor 2
is practicable, document the loss and include that information in the monitoring report.
DHS0222
Case 3:17-cv-01215-GPC-WVG Document 18-2 Filed 10/06/17 PageID.430 Page 224 of 239
Construction of SDC Border Wall Prototype
8
CBP will not, for any length of time, permit any pets inside the Project Area or adjacent native
habitats. This BMP does not pertain to law enforcement animals.
PROTECTED SPECIES
.A 50-meter buffer around observed BUOW burrows will be enforced by CBP for Project
activities. Where observing a 50-meter buffer is not compatible with Project needs, CBP will
install one-way exclusionary doors on BUOW burrows and wait until the burrows are vacated
before collapsing them to ensure no direct mortality to BUOW individuals occurs.
WATER RESOURCES
Standard construction procedures will be implemented to minimize the potential for erosion and
sedimentation during construction. All work will cease during heavy rains and will not resume
until conditions are suitable for the movement of equipment and material. No refueling or
storage will take place within 100 feet of drainages. CBP will avoid contaminating natural
aquatic systems with runoff by limiting all equipqient maintenance, staging, laydown, and
dispensing of fuel, oil, etc., to designated upland areas.
CBP will avoid contamination of ground and surface waters by storing any water that has been
contaminated with construction materials, oils, equipment residue, etc., in closed containers on
site until removed for disposal. Storage tanks must have proper air space (to avoid rainfallinduced overtopping), be on-ground containers, and be located in upland areas instead of washes.
.
.
In the event that CBP contaminates soil or water resources as a result of the Project, the
contaminated soil or water will be remediated.
A SWPPP will be prepared, implemented, and monitored.
CULTURAL RESOURCES
If any archaeological artifacts are found during Project activities, all project activity in the
immediate area will immediately cease until an evaluation of the discovery is made to determine
appropriate actions to prevent the loss of significant cultural or scientific value.
In the event that human remains or indications that human remains may be present, such as
headstones, are observed or encountered, all project activity in the immediate area will
immediately cease and the site will be secured. Securing the site requires that the discovery not
be disturbed and that others are prevented from disturbing it. The CBP project manager will be
immediately notified of the observations or discoveries. A map showing the location will be
provided if possible. No photographs of human remains will be taken.
AIR QUALITY
In order to minimize the amount of project-related dust emissions, construction crews will
implement the following practices: minimizing land disturbance; ensuring saturation of exposed
DHS0223
Case 3:17-cv-01215-GPC-WVG Document 18-2 Filed 10/06/17 PageID.431 Page 225 of 239
Construction of SDC Border Wall Prototype
9
areas; and controlling fugitive dust caused by hauling activities and vehicular travel on unpaved
road surfaces.
All construction equipment shall be maintained and operated in a manner that produces the least
amount of emissions. All construction equipment and vehicles must be maintained in good
operating condition, free from leaks.
NOISE
AU applicable Occupational Safety and Health Administration regulations and requirements will
be followed.
On-site activities will be restricted to daylight hours, to the greatest extent practicable.
All equipment will possess properly working mufflers and will be kept properly tuned to reduce
backfires.
HAZARDOUS MATERIALS
To minimize potential impacts from hazardous and regulated materials, all fuels, waste oils, and
solvents will be collected and stored in tanks or drums within a secondary containment system
that consists of an impervious floor and bermed sidewalls capable of containing the volume of
the largest container stored therein. The refueling of machinery will be completed in accordance
with accepted industry and regulatory guidelines, and all vehicles will have drip pans during
storage to contain minor spills and drips. Although it is unlikely that a major spill will occur,
any spill of reportable quantities will be contained immediately within an earthen dike, and the
application of an absorbent (e.g., granular, pillow, sock) will be used to absorb and contain the
spill.
CBP will contain non-hazardous waste materials and other discarded materials, such as
construction waste, until removed from the construction and maintenance sites. This will assist
in keeping the Project Area and surroundings free of litter and reduce the amount of disturbed
area needed for waste storage.
CBP will minimize site disturbance and avoid attracting predators by promptly removing waste
materials, wrappers, and debris from the site. Any waste that must remain more than 12 hours
should be properly stored until disposal.
All waste oil and solvents will be recycled. All non-recyclable hazardous and regulated wastes
will be collected, charact~rized, labeled, stored, transported, and disposed of in accordance with
all applicable Federal, state, and local regulations, including proper waste manifesting
procedures.
Solid waste receptacles will be maintained at the construction staging area. Non-hazardous solid
waste (trash and waste construction materials) will be collected and deposited in on-site
receptacles. Solid waste will be collected and disposed ofby a local waste disposal contractor.
DHS0224
Case 3:17-cv-01215-GPC-WVG Document 18-2 Filed 10/06/17 PageID.432 Page 226 of 239
Construction of SDC Border Wall Prototype
10
Conclusion:
Based on a review of the information provided for the Project, the results of natural and cultural
resources surveys, and an analysis of potential effects from the Project, no major impacts to the
environment are likely to result from the Project. Therefore, no further environmental
investigation or analysis, such as preparing an Environmental Stewardship Plan, is required.
Date:~fr=/-1-
A~~
Modify: _ _ _ _ _ _ _ _ _ _ __
Disapprove:
- - - - - - -- - -
Needs More Discussion:- - - - - - -
DHS0225
EXHIBIT 2
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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
SPARSH S. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
HEATHER C. LESLIE (SBN 305095)
Deputy Attorney General
State Bar No. 305095
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 210-7832
Fax: (916) 327-2319
E-mail: Heather.Leslie@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
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STATE OF CALIFORNIA; STATE OF
COLORADO; STATE OF
CONNECTICUT; STATE OF
DELAWARE; STATE OF HAWAII;
STATE OF ILLINOIS; STATE OF
MAINE; STATE OF MARYLAND;
COMMONWEALTH OF
MASSACHUSETTS; ATTORNEY
GENERAL DANA NESSEL ON BEHALF
OF THE PEOPLE OF MICHIGAN;
STATE OF MINNESOTA; STATE OF
NEVADA; STATE OF NEW JERSEY;
STATE OF NEW MEXICO; STATE OF
NEW YORK; STATE OF OREGON;
STATE OF RHODE ISLAND; STATE OF
VERMONT; COMMONWEALTH OF
VIRGINIA; and STATE OF WISCONSIN;
4:19-cv-00872-HSG
DECLARATION OF DR. KAI DUNN IN
SUPPORT OF MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING
SECTION 2808 PROJECTS
Plaintiffs,
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
v.
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DONALD J. TRUMP, in his official capacity
as President of the United States of America;
UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF DEFENSE; PATRICK
M. SHANAHAN, in his official capacity as
Acting Secretary of Defense; MARK T.
ESPER, in his official capacity as Secretary of
the Army; RICHARD V. SPENCER, in his
official capacity as Secretary of the Navy;
HEATHER WILSON, in her official capacity
as Secretary of the Air Force; U.S.
DEPARTMENT OF THE TREASURY;
STEVEN T. MNUCHIN, in his official
capacity as Secretary of the Treasury; U.S.
DEPARTMENT OF THE INTERIOR;
DAVID BERNHARDT, in his official capacity
as Acting Secretary of the Interior; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KIRSTJEN M. NIELSEN, in
her official capacity as Secretary of Homeland
Security;
Defendants.
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Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
I, Dr. Kai Dunn, declare as follows:
2
1.
3
4
I have personal knowledge of each fact stated in this declaration, and if called as
witness could competently testify thereto.
2.
I am a Senior Water Resources Control Engineer and Chief of the “NPDES /
5
Stormwater / 401 Water Quality Certification Unit” for the California Regional Water Quality
6
Control Board, Colorado River Basin Region (Colorado River Basin Water Board). I have served
7
as the Chief of this unit since 2014 and been employed by the Colorado River Basin Water Board
8
as a senior engineer since 2007.
9
3.
As the Chief of the NPDES / Stormwater / 401 Water Quality Certification Unit, I am
10
responsible for drafting National Pollutant Discharge Elimination System (NPDES) permits for
11
wastewater and storm water discharges to surface waters within the Colorado River Basin Region
12
that are issued by the Colorado River Basin Water Board, as well as water quality certifications
13
under Section 401 of the Clean Water Act. I am a California registered civil engineer and hold a
14
doctorate degree in environmental engineering from the University of Southern California.
15
4.
The Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.) (commonly
16
referred to as the “Clean Water Act”) and the California Porter-Cologne Water Quality Control
17
Act (Cal. Wat. Code § 13000 et seq.) authorize the California State Water Resources Control
18
Board (State Water Board) and the nine California Regional Water Quality Control Boards
19
(Regional Water Boards) (collectively, Water Boards) to regulate and protect water quality in
20
California. The Water Boards’ mission is to preserve, enhance, and restore the quality of
21
California’s water resources and drinking water for the protection of the environment, public
22
health, and all beneficial uses for the benefit of present and future generations.
23
5.
Each Regional Water Board—including the Colorado River Basin Water Board—is
24
required to prepare a water quality control plan (also referred to as a “basin plan”) setting forth
25
the water quality standards for all surface waters and groundwaters within the region, as well as
26
programs of implementation. See Cal. Water Code §§ 13050(j), 13240-13248. Water quality
27
standards consist of the beneficial uses of a water body and the water quality objectives (or
28
“criteria” under Clean Water Act terminology) designated to protect those beneficial uses. 40
1
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
C.F.R. §§ 131.2, 131.10-131.15; Cal. Wat. Code §§ 13050(f), (h), 13241. “Beneficial uses” of
2
water refers to the resources, services, and qualities they support or could support, e.g., drinking,
3
recreation, critical habitat, etc. Cal. Wat. Code § 13050(f); 40 C.F.R. § 131.10. “Water quality
4
objectives” are limits on levels of pollutants in a water body designed to ensure that the water
5
quality is adequate to support the designated beneficial uses for that water body. Cal. Wat. Code
6
§§ 13050(h), 13241; 40 C.F.R. § 131.11.
7
6.
The Water Quality Control Plan for the Colorado River Basin Region (Basin Plan),
8
adopted by the Colorado River Basin Water Board, contains water quality standards and
9
programs of implementation and serves as the legal, technical, and programmatic basis of water
10
quality regulation in the Board’s region. Cal. Wat. Code § 13240; 33 U.S.C. § 1313; 40 C.F.R. §
11
131.4. The Basin Plan is designed to preserve and enhance water quality in the region and to
12
protect the beneficial uses of all regional waters. A copy of the current Basin Plan is available on
13
the Colorado River Basin Water Board’s website at
14
https://www.waterboards.ca.gov/coloradoriver/water_issues/programs/basin_planning/. The
15
Basin Plan has been approved by the State Water Board and has the full force and effect of
16
regulation. Cal. Code Regs., tit. 23, § 3960 et seq; Cal. Gov Code § 11353.
17
7.
The Colorado River Basin Water Board protects the water quality of water bodies
18
within the Colorado River Basin Region, including the Salton Sea, Colorado River, New River,
19
Alamo River, All-American Canal, Alamo Canal, Imperial Valley agricultural drains, and washes
20
and ephemeral streams that drain into and serve as to tributaries to these water bodies, all of
21
which are located near California’s border with Mexico. These surface waters generally
22
constitute jurisdictional waters of the United States under the Clean Water Act and are also waters
23
of the state under the California Porter-Cologne Water Quality Control Act. 33 U.S.C. § 1362;
24
Cal. Wat. Code § 13050(e).
25
8.
The Colorado River Basin Water Board implements the water quality objectives
26
contained in the Basin Plan through the issuance of several different types of permits and other
27
orders and certifications to protect water quality. See, e.g., Cal. Wat. Code § 13263 (waste
28
discharge requirements “shall implement any relevant water quality control plans that have been
2
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
adopted, shall take into consideration the beneficial uses to be protected, the water quality
2
objectives reasonably required for that purpose…”; 33 U.S.C. § 1342 (federal Clean Water Act
3
permits must conform to state water quality standards). In addition to the traditional NPDES
4
permits for domestic, municipal, and industrial wastewater discharges to surface waters (under
5
Clean Water Act Section 402), the Water Boards issue NPDES permits to address storm water
6
runoff from construction activities that may result in discharges into the jurisdictional waters of
7
the United States. Pursuant to section 313 of the Clean Water Act (33 U.S.C. § 1323), federal
8
agencies and departments are required to comply with the requirements of California’s NPDES
9
permitting program.
10
9.
The Colorado River Basin Water Board also issues water quality certifications under
11
Section 401 of the Clean Water Act for projects that involve the discharge of dredged or fill
12
material into waters of the United States, including rivers and streams and wetlands. Under
13
Section 401, every applicant for a federal permit or license for any activity that may result in a
14
discharge to jurisdictional waters must obtain a water quality certification from the appropriate
15
Water Board demonstrating that the proposed activity will comply with state water quality
16
standards and with any other appropriate requirements of state law. The federal permit, such as a
17
permit issued by the United States Army Corps of Engineers under Clean Water Act Section 404,
18
allowing a party to dredge and fill within or near a water body, cannot be issued unless the state
19
grants or waives certification. 33 U.S.C. §§ 1341, 1344; Cal. Wat. Code §§ 13260, 13376.
20
10.
A Section 401 water quality certification ensures that the project complies with water
21
quality objectives for waters impacted by the project, and that the project will not harm or impair
22
the waters’ beneficial uses designated in the Colorado River Basin Water Board’s Basin Plan.
23
Water quality certifications typically include requirements for implementing best management
24
practices (BMPs) that the project proponent must follow in order to minimize the project’s
25
impacts on water quality. BMPs are scheduling of activities, prohibitions of practices,
26
maintenance procedures, and other management practices to prevent or reduce the discharge of
27
pollutants to waters of the United States. BMPs also include treatment requirements, operating
28
procedures, and practices to control site runoff, spillage or leaks, sludge or waste disposal, or
3
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
drainage from raw material storage. Water quality certifications can also require compensatory
2
mitigation to offset loss of aquatic resource functions from unavoidable project impacts to waters
3
of the United States. See Cal. Wat. Code § 13263; 40 C.F.R. § 230.93.
4
11.
The Colorado River Basin Water Board’s NPDES / Stormwater / Section 401 Water
5
Quality Certification Unit has reviewed and processed several applications for Section 401 water
6
quality certifications submitted to the Board by federal agencies for projects within the Colorado
7
River Basin Region. These have included applications submitted by the United States Bureau of
8
Reclamation, the United States Army Corps of Engineers, and United States Customs and Border
9
Protection.
10
12.
Exhibit 3 to Plaintiffs’ Request for Judicial Notice, filed on June 12, 2019, [ECF Doc
11
No. 176-3], is a Water Quality Certification Order issued in response to United States Customs
12
and Border Protection’s (CBP) 2013 application for a Section 401 water quality certification. I
13
have reviewed the Water Quality Certification Order and CBP’s application for certification.
14
CBP sought to construct a 1.6 mile road, known as the West Desert All-Weather Road project,
15
along the United States-Mexico border in an area west of the Calexico Port of Entry. The order
16
reflects that CBP needed a Section 401 water quality certification and federal permits from the
17
Army Corps of Engineers because the project would involve dredge and fill activities within or
18
next to the Pinto Wash, an ephemeral stream that drains into the New River. (RJN Ex. 3, p. 7.)
19
13.
The Colorado River Basin Water Board’s Section 401 Water Quality Certification
20
Order, which granted CBP certification subject to specified conditions, also noted that the West
21
Desert All-Weather Road project would traverse six ephemeral washes that are waters of the
22
United States through use of concrete low-water crossings, reinforce concrete pipes, or box
23
culverts. (See RJN Ex. 3, page 7.) In documents attached to CBP’s application for certification,
24
CBP acknowledged that the six unnamed ephemeral washes constitute waters of the United
25
States. The order also specified the exact location of the West Desert All-Weather Road project
26
using GPS coordinates. (See RJN Ex. 3, page 7.)
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14.
I have reviewed a list of additional border-barrier projects that the federal
government plans to construct in Imperial County, California, as outlined in the table attached as
4
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
Exhibit 1 to the Declaration of Heather Leslie. (2808 Project Table). I received the 2808 Project
2
Table from counsel of record for the State of California. I also reviewed the projects described in
3
the “List of Military Construction Projects” that Defendants filed in this matter on September 3,
4
2019, [ECF Doc. No. 206-2] (2808 Project List). The 2808 Project Table and 2808 Project List
5
include three border-barrier projects to be constructed, at least in part, in areas under the
6
jurisdiction of the Colorado River Basin Water Board. The three projects include El Centro
7
Projects 5 and 9, and Yuma Project 6.
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9
15.
The 2808 Project List states that El Centro Project 5 includes one mile of new
secondary pedestrian fencing near the Calexico Point of Entry, and that El Centro Project 9
10
involves construction of approximately twelve miles of a new secondary fence system, starting
11
1.5 miles west of monument marker 223 and ending at monument marker 221, and resuming one
12
mile east of the Calexico West Port of Entry and extending east for three miles. The California
13
portion of Yuma Project 6 includes construction of approximately one mile of new primary
14
pedestrian fencing starting at the Andrade Port of Entry and going east towards the Colorado
15
River, and also construction of around 1.6 miles of new secondary pedestrian fencing in
16
California, starting a half mile east of monument marker 208 and extending east towards the
17
Colorado River. (ECF Doc. No. 206-2). I also used Google Earth to plot the coordinates provided
18
for the projects in the 2808 Project Table to confirm the locations of El Centro Projects 5 and 9,
19
and Yuma Project 6.
20
16.
I am generally familiar with the steel bollard style fencing that has been constructed
21
by CBP over the past year near the Calexico Port of Entry and understand that the construction of
22
similar fencing is proposed for El Centro Projects 5 and 9 and Yuma 6. The construction of these
23
types of barriers necessarily involves the use of heavy equipment, excavation and digging.
24
Similarly, the construction of roadways near the border barriers necessarily require grading and
25
significant soil disturbances.
26
17.
El Centro Project 5 is being constructed near the New River, which CBP has
27
previously recognized is a jurisdictional water of the United States under the Clean Water Act.
28
(RJN Ex. 3, p. 7). Possible impacts to the New River from this project include sediment being
5
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
discharged into the River, and also potential harm to riparian areas including a 14-foot-wide
2
riparian zone on the west bank of the New River, and a 9-foot riparian zone on its east bank.
3
Riparian areas act as a buffer to protect and enhance aquatic resource functions from adjacent
4
land uses. Compensatory mitigation could be required for loss of riparian areas due to El Centro
5
5, in order to sustain aquatic resource functions within the watershed. The protection and
6
maintenance of terrestrial resources, such as riparian areas and uplands, is required when they
7
contribute to or improve the overall ecological functioning of aquatic resources in the watershed.
8
El Centro Project 5 could normally not proceed without a Section 404 dredge and fill permit
9
issued by the United States Army Corps of Engineers, which would in turn compel a Section 401
10
11
water quality certification for the project by the unit that I manage.
18.
The same is true for El Centro Project 9. That project will also impact jurisdictional
12
waters including the All-American Canal by discharging sediment, which is a physical pollutant
13
that increases turbidity, and also further impairs water quality by transporting other pollutants
14
such as nutrients, metals, pesticides, and oils and grease into the water body. El Centro Project 9
15
could normally not proceed without a Section 404 dredge and fill permit issued by the United
16
States Army Corps of Engineers, which would in turn compel a Section 401 water quality
17
certification by the unit that I manage.
18
19. Yuma Project 6 will also likely result in water-quality impacts to jurisdictional waters
19
including the All-American Canal, the Alamo Canal and the Colorado River. This project will
20
result in sediment impacts to these waters, and also potentially harm a 30-foot-wide riparian zone
21
on the west bank of the Alamo Canal. Compensatory mitigation might be required depending on
22
the extent of impacts to the riparian area. This project also could normally not proceed without a
23
Section 404 dredge and fill permit issued by the United States Army Corps of Engineers, which
24
would in turn compel a Section 401 water quality certification by the unit that I manage.
25
26
20. Due to their nature and location of construction, El Centro Projects 5 and 9, and Yuma
Project 6 normally would also require enrollment in the State Water Board’s statewide NPDES
27
28
6
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
7
EXHIBIT 3
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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
SPARSH S. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
HEATHER C. LESLIE (SBN 305095)
Deputy Attorney General
State Bar No. 305095
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 210-7832
Fax: (916) 327-2319
E-mail: Heather.Leslie@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
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22
23
24
25
26
27
28
STATE OF CALIFORNIA; STATE OF
COLORADO; STATE OF
CONNECTICUT; STATE OF
DELAWARE; STATE OF HAWAII;
STATE OF ILLINOIS; STATE OF
MAINE; STATE OF MARYLAND;
COMMONWEALTH OF
MASSACHUSETTS; ATTORNEY
GENERAL DANA NESSEL ON BEHALF
OF THE PEOPLE OF MICHIGAN;
STATE OF MINNESOTA; STATE OF
NEVADA; STATE OF NEW JERSEY;
STATE OF NEW MEXICO; STATE OF
NEW YORK; STATE OF OREGON;
STATE OF RHODE ISLAND; STATE OF
VERMONT; COMMONWEALTH OF
VIRGINIA; and STATE OF WISCONSIN;
4:19-cv-00872-HSG
DECLARATION OF DAVID GIBSON IN
SUPPORT OF MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING
SECTION 2808 PROJECTS
Plaintiffs,
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
v.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
DONALD J. TRUMP, in his official capacity
as President of the United States of America;
UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF DEFENSE; PATRICK
M. SHANAHAN, in his official capacity as
Acting Secretary of Defense; MARK T.
ESPER, in his official capacity as Secretary of
the Army; RICHARD V. SPENCER, in his
official capacity as Secretary of the Navy;
HEATHER WILSON, in her official capacity
as Secretary of the Air Force; U.S.
DEPARTMENT OF THE TREASURY;
STEVEN T. MNUCHIN, in his official
capacity as Secretary of the Treasury; U.S.
DEPARTMENT OF THE INTERIOR;
DAVID BERNHARDT, in his official capacity
as Acting Secretary of the Interior; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KIRSTJEN M. NIELSEN, in
her official capacity as Secretary of Homeland
Security;
Defendants.
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17
18
19
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25
26
27
28
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
I, David Gibson, declare as follows:
2
1.
Except as to statements made on information and belief, I have personal knowledge
3
of each fact stated in this declaration, and if called as witness, I would and could testify
4
competently to those facts. As relevant to statements made on information and belief, I am
5
informed and believe that those statements are true.
6
2.
I am employed by the California Regional Water Quality Control Board, San Diego
7
Region (San Diego Water Board) as its Executive Officer and have served in that capacity since
8
November 18, 2009. Before that, I was an environmental scientist in the Watershed Protection,
9
Storm Water, Clean Water Act section 401 Water Quality Certifications, Grants and Loans, and
10
Total Maximum Daily Loads programs. Prior to my employment with the San Diego Water
11
Board, I was employed by the City of San Diego Water Department where I worked on vector
12
control, watershed, and reservoir monitoring programs. I hold a Bachelor of Science Degree in
13
Biology from San Diego State University (1989).
14
3.
I have been trained in wetlands delineation and have worked extensively preparing
15
proposals for dredging and fill activities in wetlands and preparing Federal Clean Water Act
16
(CWA) section 401 Water Quality Certifications (401 Certifications). In my staff work at the
17
City of San Diego and the San Diego Water Board, I have acquired extensive knowledge of the
18
Tijuana River Watershed and its several transboundary drainages. As Executive Officer, I have
19
led the Tijuana River Valley Recovery Team and worked with over 30 agencies and organizations
20
on projects related to the transboundary flows of wastes, and on the impacts of those flows on
21
receiving waters, habitats, and communities in the lower Tijuana River Valley. Those efforts
22
have included extensive engagement with agents, staff, and contractors of the Department of
23
Homeland Security and U.S. Customs and Border Protection (CBP). I am also familiar with
24
CBP’s efforts to develop or expand border fence and ancillary infrastructure in the San Diego
25
Region.
26
4.
As Executive Officer, I am responsible for reviewing staff work on National Pollutant
27
Discharge Elimination System (NPDES) permits for wastewater and storm water discharges to
28
surface waters within the San Diego Region that are issued by the San Diego Water Board, as
1
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
well as water quality certifications under Section 401 of the Clean Water Act. I have reviewed
2
and acted upon staff recommendations to approve or deny 401 Water Quality Certifications for
3
projects in the Tijuana River and Otay River watersheds.
4
5.
The Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.) (commonly
5
referred to as the “Clean Water Act”) and the California Porter-Cologne Water Quality Control
6
Act (Cal. Wat. Code § 13000 et seq.) authorize the California State Water Resources Control
7
Board (State Water Board) and the nine California Regional Water Quality Control Boards
8
(Regional Water Boards) (collectively, Water Boards) to regulate and protect water quality in
9
California. The Water Boards’ mission is to preserve, enhance, and restore the quality of
10
California’s water resources and drinking water for the protection of the environment, public
11
health, and all beneficial uses for the benefit of present and future generations.
12
6.
Each Regional Water Board—including the San Diego Water Board—is required to
13
prepare a water quality control plan (also referred to as a “basin plan”) setting forth the water
14
quality standards for all surface waters and groundwaters within the region, as well as programs
15
of implementation. See Cal. Water Code §§ 13050(j), 13240-13248. Water quality standards
16
consist of the beneficial uses of a water body and the water quality objectives (or “criteria” under
17
Clean Water Act terminology) designated to protect those beneficial uses. 40 C.F.R. §§ 131.2,
18
131.10-131.15; Cal. Wat. Code §§ 13050(f), (h), 13241. “Beneficial uses” of water refers to the
19
resources, services, and qualities they support or could support, e.g., drinking, recreation, critical
20
habitat, etc. Cal. Wat. Code § 13050(f); 40 C.F.R. § 131.10. “Water quality objectives” are
21
limits on levels of pollutants in a water body designed to ensure that the water quality is adequate
22
to support the designated beneficial uses for that water body. Cal. Wat. Code §§ 13050(h),
23
13241; 40 C.F.R. § 131.11.
24
7.
The Water Quality Control Plan for the San Diego Region (Basin Plan), adopted by
25
the San Diego Water Board, contains water quality standards and programs of implementation
26
and serves as the legal, technical, and programmatic basis of water quality regulation in the
27
Board’s region. Cal. Wat. Code § 13240; 33 U.S.C. § 1313; 40 C.F.R. § 131.4. The Basin Plan
28
is designed to preserve and enhance water quality in the region and to protect the beneficial uses
2
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
of all regional waters. A copy of the current Basin Plan is available on the San Diego Water
2
Board’s website at https://www.waterboards.ca.gov/sandiego/water_issues/programs/basin_plan/
3
4
5
The Basin Plan has been approved by the State Water Board and has the full force and
effect of regulation. Cal. Code Regs., tit. 23, § 3960 et seq; Cal. Gov Code § 11353.
8.
The San Diego Water Board protects the water quality of water bodies within the San
6
Diego Region, including Tijuana River and Otay River, and washes and ephemeral streams that
7
drain into and serve as to tributaries to these water bodies, all of which are located near
8
California’s border with Mexico. These surface waters generally constitute jurisdictional waters
9
of the United States under the Clean Water Act and are also waters of the state under the
10
California Porter-Cologne Water Quality Control Act. 33 U.S.C. § 1362; Cal. Wat. Code §
11
13050(e).
12
9.
The San Diego Water Board implements the water quality objectives contained in the
13
Basin Plan through the issuance of several different types of permits and other orders and
14
certifications to protect water quality. See, e.g., Cal. Wat. Code § 13263 (waste discharge
15
requirements “shall implement any relevant water quality control plans that have been adopted,
16
shall take into consideration the beneficial uses to be protected, the water quality objectives
17
reasonably required for that purpose…”); 33 U.S.C. § 1342 (federal Clean Water Act permits
18
must conform to state water quality standards). In addition to the traditional NPDES permits for
19
domestic, municipal, and industrial wastewater discharges to surface waters (under Clean Water
20
Act Section 402), the Water Boards issue NPDES permits to address storm water runoff from
21
construction activities that may result in discharges into the jurisdictional waters of the United
22
States. Pursuant to section 313 of the Clean Water Act (33 U.S.C. § 1323), federal agencies and
23
departments are required to comply with the requirements of California’s NPDES permitting
24
program.
25
10.
The San Diego Water Board also issues water quality certifications under Section 401
26
of the Clean Water Act for projects that involve the discharge of dredged or fill material into
27
waters of the United States, including rivers and streams and wetlands. Under Section 401, every
28
applicant for a federal permit or license for any activity that may result in a discharge to
3
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
jurisdictional waters must obtain a water quality certification from the appropriate Water Board
2
demonstrating that the proposed activity will comply with state water quality standards and with
3
any other appropriate requirements of state law. The federal permit, such as a permit issued by
4
the United States Army Corps of Engineers under Clean Water Act Section 404, allowing a party
5
to dredge and fill within or near a water body, cannot be issued unless the state grants or waives
6
certification. 33 U.S.C. §§ 1341, 1344; Cal. Wat. Code §§ 13260, 13376.
7
11.
A Section 401 water quality certification ensures that the project complies with water
8
quality objectives for waters impacted by the project, and that the project will not harm or impair
9
the waters’ beneficial uses designated in the San Diego Water Board’s Basin Plan. Water quality
10
certifications typically include requirements for implementing best management practices (BMPs)
11
that the project proponent must follow in order to minimize the project’s impacts on water
12
quality. BMPs are scheduling of activities, prohibitions of practices, maintenance procedures,
13
and other management practices to prevent or reduce the discharge of pollutants to waters of the
14
United States. BMPs also include treatment requirements, operating procedures, and practices to
15
control site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material
16
storage. Water quality certifications can also require compensatory mitigation to offset loss of
17
aquatic resource functions from unavoidable project impacts to waters of the United States. See
18
Cal. Wat. Code § 13263; 40 C.F.R. § 230.93.
19
12.
The San Diego Water Board has reviewed and processed several applications for
20
Section 401 water quality certifications submitted to the Board by federal agencies for projects
21
within the San Diego Region. These have included applications submitted by the United States
22
Army Corps of Engineers, and I am aware of a pending application by CBP.
23
13.
I have reviewed a list of additional border-barrier projects that the federal
24
government plans to construct in San Diego County, California, as outlined in the table attached
25
as Exhibit 1 to the Declaration of Heather Leslie. (2808 Project Table). I received the 2808
26
Project Table from counsel of record for the State of California. I also reviewed the projects
27
described in the “List of Military Construction Projects” that Defendants filed on September 3,
28
2019, [ECF Doc. No. 206-2] (2808 Project List). The 2808 Project Table and 2808 Project List
4
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
include two border-barrier projects, San Diego 4 and San Diego 11, that will be constructed in
2
areas under the jurisdiction of the San Diego Water Board.
3
14.
The 2808 Project List states that San Diego 4 includes construction of 1.5 miles of
4
new primary pedestrian fencing starting 3.6 miles east of the Otay Mesa Port of Entry and
5
extending east, and also construction of 2 miles of new secondary pedestrian fencing for this
6
same stretch of the border. San Diego 11 involves construction of approximately 3 miles of new
7
secondary pedestrian fencing starting 2 miles west of the Tecate Port of Entry and extending to
8
1.5 miles east of the Tecate Port of Entry. I also reviewed the coordinates in the 2808 Project
9
Table to confirm the locations of San Diego Project 4 and San Diego Project 11.
10
15.
I am generally familiar with the steel bollard style pedestrian fencing that has been
11
constructed by CBP over the past year in California, and understand that the construction of
12
similar fencing is proposed for San Diego Projects 4 and 11. The construction of these types of
13
barriers necessarily involves the use of heavy equipment, excavation and digging. Similarly, the
14
construction of roadways near the border barriers necessarily requires grading and significant soil
15
disturbances.
16
16.
San Diego Project 4 is being constructed near the Tijuana River, and within and near
17
washes and ephemeral streams that drain into the Tijuana River. Possible impacts to the Tijuana
18
River from this project include sediment being discharged into the River, along with other
19
pollutants like metals and pesticides that are contained in the sediment. Vernal pools near the
20
project site may also be impacted during project construction, as the roads providing site access
21
go through vernal pool areas. Transporting heavy construction equipment on these roads, and any
22
road improvements needed for project construction, could damage vernal pools. In Southern
23
California, vernal pools are shallow depressions overlying impermeable substrates, typically clay
24
hardpans, which fill with winter rainfall and retain ponded water through the spring. These
25
seasonal wetlands are habitat for numerous protected species such as the San Diego Fairy Shrimp
26
and the Riverside Fairy Shrimp, both of which are endangered under the federal Endangered
27
Species Act. Because much of the vernal pool habitat in Southern California has been destroyed,
28
preserving the remaining vernal pool habitat is critical for these species’ recovery. San Diego
5
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
1
Project 4 could normally not proceed without a Section 404 dredge and fill permit issued by the
2
United States Army Corps of Engineers, which would in turn compel a Section 401 water quality
3
certification for the project issued by the San Diego Water Board.
4
17.
The same is true for San Diego Project 11. That project will also impact
5
jurisdictional waters including the Tijuana River, and washes and ephemeral streams that drain
6
into the Tijuana River, by discharging sediment which is a physical pollutant that increases
7
turbidity, and also further impairs water quality by transporting other pollutants such as nutrients,
8
metals, pesticides, and oils and grease into the water body. San Diego Project 11 could normally
9
not proceed without a Section 404 dredge and fill permit issued by the United States Army Corps
10
of Engineers, which would in turn compel a Section 401 water quality certification issued by the
11
San Diego Water Board.
12
18. Due to their nature and location of construction, San Diego Projects 4 and 11 normally
13
would also require enrollment in the State Water Board’s statewide NPDES Construction General
14
Permit,1 which is enforced by the San Diego Water Board in the region. The proposed
15
construction for these two projects poses a high risk for storm water run-off impacting water
16
quality during the construction phase and post-construction maintenance. The Construction
17
General Permit requires the preparation and implementation of a Storm Water Pollution
18
Prevention Plan (SWPPP) to ensure construction and post-construction activities do not adversely
19
impact water quality. The permit requires a risk assessment of pollutants being discharged to
20
surface waters, and that the SWPPP include a description of: (a) the specific project activities that
21
threaten water quality (i.e., characterization of potential sources of storm water pollution and their
22
pollutants); and (b) specific best management practices and other measures that will be
23
implemented by the project proponent for project-specific activities during construction to
24
prevent and minimize adverse water quality impacts.
25
26
27
28
19.
The authority of the State and Regional Water Boards under the NPDES permitting
program and the Section 401 water quality certification program are necessary to ensure that
1
National Pollutant Discharge Elimination System (NPDES) General Permit for Storm
Water Discharges Associated with Construction and Land Disturbance Activities, State Water
Board Order No. 2009-0009-DWQ, NPDES No. CAS000002 (as amended).
6
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects
(4:19-cv-00872-HSG)
EXHIBIT 4
1
Plaintiffs,
2
v.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
DONALD J. TRUMP, in his official capacity
as President of the United States of America;
UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF DEFENSE; PATRICK
M. SHANAHAN, in his official capacity as
Acting Secretary of Defense; MARKT.
ESPER, in his official capacity as Secretary of
the Anny; RICHARD V. SPENCER, in his
official capacity as Secretary of the Navy;
HEATHER WILSON, in her official capacity
as Secretary of the Air Force; U.S .
DEPARTMENT OF THE TREASURY;
STEVEN T. MNUCHIN, in his official
capacity as Secretary of the Treasury; U.S.
DEPARTMENT OF THE INTERIOR;
DAVID BERNHARDT, in his official capacity
as Acting Secretary of the Interior; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KIRST JEN M. NIELSEN, in
her official capacity as Secretary of Homeland
Security;
Defendants.
17
18
19
20
21
22
23
24
25
26
27
28
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4:19-cv-00872-HSG)
1
I, Christopher D. Nagano, declare as follows:
2
1.
I have personal knowledge of the facts set forth in this declaration. If called as a
3
witness, I could and would testify competently to the matters set forth below. As to those matters
4
which reflect an opinion, they reflect my personal opinion and judgment on the matter.
5
2.
I reside in Washougal, Washington.
6
3.
I am a staff member of the Center for Biological Diversity, where I have served as
7
a senior scientist in the Center' s Endangered Species Program since 2017. At the Center, I work
8
to protect imperiled species, particularly reptiles and invertebrates such as butterflies, lady
9
beetles, and tiger beetles. I work in conjunction with campaigners, lawyers, policy experts and
10
11
other scientists to achieve this goal.
4.
Prior to coming to the Center, I worked for 27 years, from 1989 to 2016, as an
12
endangered species entomologisUecologist, endangered species biologist, Endangered Species
13
Division Chief, and Deputy Assistant Field Supervisor with the U.S. Fish and Wildlife Service
14
("FWS" or " Service") based in Carlsbad and Sacramento, California, and Albuquerque, New
15
Mexico. At the FWS, I worked on nearly all aspects of the Endangered Species Act, including
16
section 7, habitat conservation plans, listing, recovery, and law enforcement.
17
5.
I was the Chief of the Endangered Species Division at the New Mexico Ecological
18
Services Office for 1 Yi. years. I was responsible for the protection, conservation, and recovery of
19
listed species throughout the Land of Enchantment, including at the US/Mexico border area. I
20
also completed endangered species-related details in five other states.
21
6.
Prior to going to the Service, I worked for several years in the mid-late 1980s as a
22
research associate in the Entomology Section at the Natural History Museum of Los Angeles
23
County. While at the Natural History Museum, I worked on "soft money' funded projects
24
investigating the western migration of the Monarch butterfly, and comprehensive surveys of the
25
terrestrial invertebrate fauna of two coastal southern California wetlands.
26
7.
I have a Master of Environmental Studies degree from the Yale School of Forestry
27
and Environmental Studies; for my graduate work I investigated the international trade in
28
butterflies. Dming this period, I was an intern working on endangered species issues at the
1
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4: 19-cv-00872-HSG)
1
Environmental Defense Fund in Washington, D.C. for Michael J. Bean, now retired Deputy
2
Assistant Secretary for Fish, Wildlife and Parks at the Depa.rhnent of Interior. In sum, I have
3
dedicated my career to the scientific research and protection of endangered and threatened
4
species.
5
8.
As a scientist at the Center focused on the conservation and eventual recovery of
6
imperiled animals, especially reptiles and invertebrates, I have a profound professional interest in
7
researching and finding whether certain animal species warrant new or continued federal
8
protection under the Endangered Species Act ("ESA" or "Act") and ensuring that the Act's
9
procedural and substantive protections are enforced. As a veteran of the FWS, I understand the
10
critical role that non-governmental organizations, like the Center, play in ensuring that these
11
procedural and substantive protections are adhered to and cruTied out, particularly the requirement
12
for interagency consultation pursuant to section 7 of the ESA. I am committed to playing this
13
outside monitoring role to ensure that the government is carrying out its statutory duties toward a
14
listed species' continued survival and ultimate recovery in the wild.
15
9.
I have an extensive working knowledge of section 7 of the ESA. During my 27-
16
year career with the FWS, I conducted literally hundreds of informal consultations and many
17
dozens of formal consultations with many Federal agencies ranging from the Bureau of
18
Reclamation to the National Park Service. This involved providing guidance to Federal agencies
19
in the process of complying with the section 7 process, including instruction and assistance in
20
making their effects determinations as to whether their projects were "no effect," "may affect, not
21
likely to adversely affect,' or "may affect, likely to adversely affect" listed species and critical
22
habitat. I also reviewed their projects to ascertain if their project description was accurate, and
23
whether the FWS concuned with their effects determination; and if the action was likely to
24
adversely affect the survival and recovery in the wild of listed species, as well as whether the
25
action was likely to adversely modify or destroy designated critical habitat. If the project was not
26
likely to jeopardize a listed species and/or adversely modify or destroy critical habitat, I made the
27
recommendation for or authorized the anticipated amount of incidental take, and the appropriate
28
reasonable and prudent measures for the project. I am familiar with the new regulations for
2
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4 : 19-cv-00872-HSG)
1
section 7 of the ESA that were issued by the Trump Administration on August 27, 2019 (Federal
2
Register 84(166): 44976-45018) and the changes from the previous section 7 regulations.
3
10.
During my career with the FWS, I routinely reviewed projects proposed by
4
federal, state and local agencies, and non-governmental parties for their potential effects on non-
5
listed wildlife, plants, and their habitats pursuant to the National Enviromnental Policy Act
6
("NEPA"). I also reviewed projects to ensure compliance with the Fish and Wildlife
7
Coordination Act, Migratory Bird Treaty Act, and the FWS Mitigation Policy of 1956. My
8
efforts involved assessments of project impacts on non-listed wildlife and plants, and their
9
habitats, as well as review of the proposed mitigations and development of additional measures, if
10
11
appropriate.
11.
While at the U.S. Fish and Wildlife Service, one of the issues that I focused on,
12
analyzed, and encouraged other agencies and non-governmental parties to first avoid, and if not
13
possible, to mitigate, was the effect of barriers, such as highways and roadways, on the long-tenn
14
movement oflisted animals and wildlife. The ability of many animals to move to new areas or
15
between portions of their home range is critical for ensuring they do not become extinct or
16
extirpated.
17
12.
Another issue that I focused on at the FWS was the indirect adverse effects of a
18
project, or as they are now called in the new section 7 regulations, consequences, on listed
19
animals and wildlife. 50 CPR § 402.02 defines "effects of the action" as " .. . all consequences to
20
listed species or critical habitat that are caused by the proposed action, including the
21
consequences of other actions that are caused by the proposed action. A consequence is caused
22
by the proposed action if it would not occur but for the proposed action and it is reasonably
23
certain to occur. Effects of the action may occur later in time and may include consequences
24
occurring outside the immediate area involved in the action." Some consequences, fonnerly
25
known more accurately as indirect effects, can have adverse impacts on listed species that are
26
greater and much longer lasting than the direct effects (also now considered to be consequences)
27
of a project. An example of such a consequence (indirect effect) is silt from the construction of a
28
3
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4:19-cv-00872-HSG)
road washing into a pond inhabited by the tadpoles of a listed frog after project construction has
2
3
been completed, and results in the animals dying because their gills become coated with di1t.
13.
I am gravely concerned by the failure of the Department of Defense ("DOD"),
4
Department of Homeland Security ("DHS") and Customs Border Patrol ("CBP") to comply with
5
the ESA for segments El Paso 2 and El Paso 8 of their proposed border wall in New Mexico. As
6
they are required, these agencies failed to consult with FWS on the effects of the proposed border
7
wall on the endangered jaguar (Panthera onca) and its designated critical habitat, threatened
8
Chiricahua leopard frog (Rana chiricahuensis), and endangered and Experimental Nonessential
9
Populations of the Mexican wolf (Canis lupus baileyi) and the Aplomado falcon (Falcofemoralis
10
11
septentrionalis).
14.
Based on my background in the ecology and biology of the jaguar and its critical
12
habitat, and the Chiricahua leopard frog, Mexican wolf, and Aplomado falcon, and my experience
13
with them while I was stationed at the FWS New Mexico Ecological Services Office, as well as
14
my professional experience and knowledge dealing with the effects (=consequences) of human
15
and natural effects on threatened and endangered plants and anin1als, I recognize and understand
16
the credible threat that the border wall construction poses to these four listed animals and critical
17
habitat for the jaguar.
18
15.
El Paso 2 and El Paso 8 are located in the "Bootheel" of New Mexico, a region of
19
the United States and northern Mexico where six distinct biological provinces overlap with a
20
concomitant extremely high diversity of plant and animal species (World Wildlife Fund and Sky
21
Island Alliance.2003. Natural heritage of the Peloncillo Mountain region. Tucson, Arizona).
22
Much of the Bootheel is uninhabited by humans, and still has extensive amounts of natural
23
habitats. These factors make the area among the most diverse biological regions in North
24
America. There are at least 879 species of plants, 89 species of reptiles and amphibians (72% of
25
the 123 species recorded in New Mexico), 91 mammal species (more than all of the mammal
26
species in the entire State of Pennsylvania), and 318 species of birds including 23 species listed as
27
threatened or endangered by the State of New Mexico.
28
4
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4: 19-cv-00872-HSG)
1
16.
In May 2019, I visited the Animas Valley of the "bootheel" region of Hidalgo
2
County, New Mexico, to specifically observe the habitats of the jaguar and its critical habitat, the
3
Chiricahua leopard frog, Mexican wolf, Gila monster and other wildlife, and current land uses in
4
the area.
5
17.
The endangered jaguar was historically found throughout the southwestern Unite
J-
:,.
SIG HATCHEThlOUNTAI
,-
~
~-------1
Unit 6 of Jaguar
Crit ica l Habitat San Lu is
-
El Paso 2 Primary (2808 Funds)
-
El Paso 8 Primary & Secondary (2808 Funds)
-
Only Migration Corridor for the
Wh ite-sided Jackrabbit t o the United States .
All models and records verify that th is
is only known crossing point from
Mexico t o US in proposed El Paso 8
Tucson 3 (284 Funds)
White-sided jackrabbit migration corridor
-
White-sided jackrabbit migration corridor model 2014
Lepus callotis Best Fit Corridor
o
D
White-sided Jackrabbit- All known populations
\
\
\
Jaguar Critical Habitat Units 5 & 6
•
•
0
2019 Jaguar Records
Jaguar occurrences
0
Jaguar Connectivity Model USFWS
0
$0.823531
$6.258838
$21.00005
- - Ch iricahua Leopard Frog Crit ical Habitat
Animas Foundation Conservation Easements
r+
Border Monuments 64 and 63
10
US_Mexico_Border_Crossings
0
0
Map by Myles B. Traphagen
Sources: Esri, USGS, NOAA, Sources: Esri, Garrn i
EXHIBIT B
>
(/l
<:
r
This is only possible connected corridor
for the hare since this is a low gap in the
Continental Divide and high mountains exist
to the south and north .
.,
Antelope
Wel ls
0
El Paso
Unit 6 of Jaguar
Critical Habitat-San Luis
2
Hares migrate up through Playas Valley
on east side of Continental Divide
,
Janos Biosphere Reserve
El Paso 2 Primary (2808 Funds)
El Paso 8 Primary & Secondary (2808 Funds)
White-sided jackrabbit migration corridor
Lepus callotis Best Fit Corridor
o
White-sided Jackrabbit- All known population
N
Jaguar Critica l Habitat Units 5 & 6
0
A
2019 Jaguar Records
Jaguar occurrences
Chiricahua Leopard Frog Critica l Habitat
Animas Foundation Conservation Easements
C
-i+
US_Mexico_Border_Crossings
Border Monuments 64 and 63
0
2.5
5
10 Miles
I
Map by Myles B. Traphagen
Sources: Esri, USGS, NOAA, Sources: Esri, Garmin, USGS, NPS
EXHIBIT C
Wildfire and Drought Effects on White-Sided Jackrabbit Movements and Migration
2005 A
With a significant increase in wildfire frequency
since 1987, hares are forced to move more
to find suitable habitat when their homelands
burn. In fire years they may need to move back
and forth across the border more frequently in
order to find good forage and safe habitat for
them and their young
),...
-
·;.,;t
8
0
~u
z
0
N
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1994 A
1994'
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19896
B
996A
0
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1994Q
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2005C
Walnut
r-
1994 F
Walnut
1992
r-
2001 A.
1992 B
0
2001 B
0
1994 P
Black
Point Batta l,on
Fie
Fire
1994 M
Eicks Draw-Lynch
2000 D
Center Peak
199H
HILO-PE
'li<
1998 B
Bonus Fire
Deer Creek
Are
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1994 H
2000A
CI011erdale 2
..:. , US_Mexko llorder Crossings
r.1 Paso 8 Primar}' & Scco ,nlary (2808 Fund,)
f.l Paso 2 P,•im.~ ry (2So8 r,1iul~)
DI I •84 Border Wall- Tuc;;on J
O While•sidcd jac~r.1bbit - All known populations
2019 Jagu..i r Records
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1994 K
2001 D
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