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As an update to many of you, I have been on the phone with Roger Kohn of EPA
Region 9 a couple of different times today. It turns out that what they really were expecting to see was something more like a formal Biological Assessment (BA) for CS 3 and CS 4, not a biological survey report like we provided. According to the Endangered Species Act (ESA), the lead Federal agency in a Federal Action is responsible for preparing the BA, but a BA is typically only required when the action "may affect" a listed species, which is not the case here. EPA Region 9, and based on our experience across the country, apparently only Region 9, is interpreting their responsibilities under the ESA very strictly and somewhat "oddly." Regardless, the bottom line is that it appears we could argue with them ad nauseum and still end up right back here. So, we have begun working very quickly and diligently to put together a "BA-like" document that, according to Roger, will give them what they need to put in their files to cover themselves for satisfying the ESA. I told him that the USFWS typically (under "normal" circumstances) receives a BA from the lead federal agency and then issues their Biological Opinion (BO). I asked him if they (EPA) were going to still feel like they needed any kind of concurrence from the USFWS. He said that only if we were going to have any findings of "may affect" would they maybe feel the need to get additional concurrence from the USFWS. I told him that you (Larry) already have a verbal concurrence from USFWS that there are no issues, in addition to the fact that our surveys confirmed that. I told him that our "BA-like" document is going to come to the same conclusions that our Survey Report did (i.e., No Effect). He said that he understands, and will likely just receive the document, assure himself that it says what it needs to say, and is formatted in the manner he feels it needs to be formatted, put it in his files, and put out the Public Notice for a 30-day comment period. If this all happens by early next week, we should still have permits by the beginning of November. I will continue to hammer home the importance of that schedule. Some of us will be on a conference call with Roger and one of the EPA attorneys tomorrow to try to "get inside their heads" a little bit better regarding why they are the only Region interpreting their ESA responsibilities so strictly. We will debrief you after the call. Scott Scott J. Patti Senior Project Manager ENSR International 1601 Prospect Parkway Fort Collins, CO 80525 Phone: (970) 493-8878 Fax: (970) 493-0213 Email: spatti@ensr.com -----Original Message----- From: Larry.Campbell@enron.com [mailto:Larry.Campbell@enron.com] Sent: Friday, August 31, 2001 4:18 PM To: Patti, Scott Cc: John.Shafer@enron.com; Hackett, Terry; William.Kendrick@enron.com; Robert.Kilmer@enron.com; Louis.Soldano@enron.com; Alstad, Jon; Richardson, Devyn Subject: RE: Endangered Species Surveys, Red Rock Expansion Scott, thanks for the effort in this. Am looking forward to your reports for sta. 3 and 4 at your earliest convenience .... "Patti, Scott" <SPatti@ensr.com< on 08/31/2001 02:11:17 PM To: "'Larry.Campbell@enron.com'" <Larry.Campbell@enron.com<, John.Shafer@enron.com cc: "Hackett, Terry" <THackett@ENSR.com<, William.Kendrick@enron.com, Robert.Kilmer@enron.com, Louis.Soldano@enron.com, "Alstad, Jon" <JAlstad@ensr.com<, "Richardson, Devyn" <DRichardson@ensr.com< Subject: RE: Endangered Species Surveys, Red Rock Expansion Gentlemen, Our Navajo Nation Permit to conduct T&E species surveys just came across on the fax machine. Again, Jon Alstad will be traveling Tuesday and conducting the surveys on Wednesday. Thanks to Devyn Richardson for expediting receipt of this permit. Scott Scott J. Patti Senior Project Manager ENSR International 1601 Prospect Parkway Fort Collins, CO 80525 Phone: (970) 493-8878 Fax: (970) 493-0213 Email: spatti@ensr.com -----Original Message----- From: Larry.Campbell@enron.com [mailto:Larry.Campbell@enron.com] Sent: Friday, August 31, 2001 1:24 PM To: John.Shafer@enron.com Cc: Hackett, Terry; William.Kendrick@enron.com; Robert.Kilmer@enron.com; Louis.Soldano@enron.com; Patti, Scott Subject: RE: Endangered Species Surveys, Red Rock Expansion John, to my knowledge there are no ciritical habitats at either site. In my previous life as a consultant I did a considerable amount of work with ESA in NM and AZ and on reservation lands. To add to this, the whole disturbance issue of compressor station activities from 1967 (sta. 2) and 1959 (sta.3) would strongly support your supposition that there wont be any surprises. Ive spoken to Region IX EPA and this issue wont delay the processing of the permits for either station. I would think that from the time the reports are completed to clearnace by the Navajo Nation, would be about 30 days. That is the approximate time limit that the SHPO clearances received. Again, weve received verbal clearance from the Navajo Nation at these sites regarding T&Es. The project start point is station 2, so we have some room in the event the survey approvals take longer than 30 days, but I agree with you that we need to move this along. Ill be more than happy to motivate the Navajos and EPA after the reports are submitted.....Scott Patti has promised me he would let me know when the Navajos have said "yes" and he would charge into the field and do the surveys. From: John Shafer/ENRON@enronXgate on 08/28/2001 02:59 PM CDT To: Larry Campbell/ET&S/Enron@ENRON, "Hackett, Terry" <THackett@ENSR.com< @SMTP@enronXgate cc: William Kendrick/ENRON@enronXgate, Robert Kilmer/ENRON@enronXgate, Louis Soldano/ENRON@enronXgate Subject: RE: Endangered Species Surveys, Red Rock Expansion Larry, Please proceed with all haste on this. How long to complete them and submit the findings (can't believe there would be anything turn up). No endangered plants in any of those station yards - I trust? The EPA is reaching here, but they have the big stick and we must work through this to get the air permit. This is a lesson's learned for the upcoming Sun Devil project. John -----Original Message----- From: Campbell, Larry Sent: Monday, August 27, 2001 4:32 PM To: Hackett, Terry Cc: Shafer, John; Kendrick, William Subject: Re: Endangered Species Surveys, Red Rock Expansion The issue arose when the EPA in San Francisco said they would not issue an air permit unless we had addressed all concerns relevant to the endangered species act, even on distsurbed lands at stations 3 and 4. Even though we had received a verbal approval formt he Navajo Nation that endangered species would not be a concern by the Nation, the EPA felt otherwise. This means that they wont give us a permit until we do a survey for plants and animals. Because ENSR was on the list of contractors approved by the Navajo Nation, they were given the opportunity. As you know, I have been working with Scott Patti on this and we have worked it through. All that is left is to get the ENSR renewal permit application approved by the Nation and ENSR is off and running to do the surveys. Terry, I know that you know all this, I just wanted to keep John and Bill in the loop on how things are progressing...... (Embedded image moved to file: pic13261.pcx) "Hackett, Terry" <THackett@ENSR.com< on 08/27/2001 11:18:31 AM To: "Larry Campbell (E-mail)" <Larry.Campbell@ENRON.com< cc: "Patti, Scott" <SPatti@ensr.com< Subject: Endangered Species Surveys, Red Rock Expansion Larry, I understand from Scott Patti that the EPA has thrown a monkey wrench into the air permitting process for stations 3 and 4 and are now requesting endangered species surveys. For simplicity, we will add this as a new task for the Red Rock Expansion project. The FT. Collins folks are proceeding based on your verbal go ahead, but to make our accountants happy, I will have to get something written authorizing the additional work. Scott is estimating the task to cost approximately $7,000. Since I am listed as the project manager on paper, I will put together a brief letter and get it to you this week. However, please continue to directly coordinate with Scott and he will keep me apprised of the status. Thanks, Terry. Terry L. Hackett Senior Project Manager ENSR International 7041 Old Wake Forest Road, Suite 103 Raleigh, NC 27616-3013 (919) 872-6600 phone (919) 872-7996 fax ********************************************************************** The information contained in this communication is confidential and privileged proprietary information intended only for the individual or entity to whom it is addressed. Any unauthorized use, distribution, copying or disclosure of this communication is prohibited. If you have received this communication in error, please contact the sender immediately. It is our policy that e-mails are intended for and should be used for business purposes only. This footnote also confirms that this email message has been swept by MIMEsweeper for the presence of computer viruses. 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