UNITED STATES DEPARTMENT OF THE INTERIOR

Office of the Secretary

OFFICE OF ENVIRONMENTAL POLICY AND COMPLIANCE Pacific Southwest Region 1111 Jackson Street, Suite 520 Oakland, California 94607

IN REPLY REFER TO:

ER# 08/24

Filed Electronically

Mar 12,2008

San Diego Sector Tactical Infrastructure EIS c/o e2M, 2751 Prosperity Avenue

Suite 200, Fairfax, Virginia 22031 SDcomments@BorderFenceNEPA.com

Subject:

Review of the Draft Environmental Impact Statement (EIS) for Construction, Operation, and Maintenance of Tactical Infrastructure, U.S. Border Patrol, San Diego Sector, San Diego County, California

Dear Sir/Madam:

The Department of the Interior has received and reviewed draft Environmental Impact Statement (EIS) for the above-referenced project, dated December 28,2007. We recognize the importance ofthisproject, and are committed to providing assistance as quickly and efficiently as possible. We have identified potential effects of this project on trust resources and provide comments based on information provided in the EIS, knowledge of sensitive and declining species and their habitats, and participation in regional conservation planning efforts.

We have concerns regarding (1) adequacy of analysis of direct, indirect, and cumulative effects on sensitive resources including listed species, (2) analysis of project's consistency with local and regional planning efforts, (3) sufficiency of proposed mitigation measures, and (4) concerns about the effects on the Otay Mountain Wilderness Area.

Our comments are focused on improving the content of the Draft EIS to support a more comprehensive analysis of potential impacts of Proposed Action and a comparison with its alternative. To assist the Department's Bureau of Land Management and Fish and Wildlife Service in carrying out our responsibilities for managing public lands and resources, we would like to emphasize the importance of incorporating best management practices as an integral part of the proposed project.

The proposed project is to construct, maintain and operate approximately lOA miles of tactical infrastructure, including two sections offence, patrol roads, access roads, light tracks, and staging areas along U.S.-Mexico border in the Otay Mountain area between Tecate and Otay Mesa in San Diego County, California.

The project would impact privately-owned land and public lands, including Otay Mountain Wilderness Area (OMW A) managed by Bureau of Land Management. Proposed fence segments would be installed mostly within

Page I of23

Roosevelt Reservation with an approximately 60-foot wide impact corridor, with about half the road impacts occurring outside the reservation on Federal (OMWA), other public and private land.

Per theEIS, a total of210.1 acres would be impacted, including, 57.1 acres of southern mixed chaparral, 12.7 acres of mafic southern.mixed chaparral, 43.8 acres ofDiegan coastal sage scrub, 0.8 acres of mule fat scrub, 4.3 acres of southern coast live oak riparian forest, 0.2 acres of whitehorn chaparral, 1.4 acres of non-native grassland, 1.6 acres of chamise chaparral, 1.6 acres of southern cotton wood willow riparian, 0.4 acre of southern interior cypress forest, 0.3 acre of disturbed/landscaped/developed, 72.2 acres of undifferentiated native vegetation, and 7.8 acres of undifferentiated exotic vegetation.

The project has potential to impact the following federally listed species: least Bell's vireo (Vireo belliipusillus), coastal California gnatcatcher (Polioptila californica californica), southwestern willow flycatcher tEmpidonax traillii extimus), Quino checkerspot butterfly (Euphydryas editha quino), arroyo toad (Bufo californicus), Otay tarplant [Deinandra (=Hemizonia) conjugens], Encinitas baccharis tBaccharis vanessae), San Diego fairy shrimp ( Branchinecta sandiegonensis), San Diego ambrosia (Ambrosia pumila),San Diego button-celery (Eryngium aristulatum parishii), Otay Mesa mint (Pogogyne nudiuscula), spreading navarretia (Navarretiafossalis), Mexican flannelbush (Femontodendron mexicanum), and California Orcutt grass (Orcuttia californica).

The EIS is lacking some information necessary to assess effects of the proposal on species mentioned above. Because focused surveys for these species were either not conducted or were conducted at an inappropriate time of year, the document's conclusions regarding environmental effects of the proposal are not substantiated. Without appropriate biological surveys, habitats containing elements suitable for occupation' of sensitive species (e.g., appropriate vegetation, soils, topography) should be considered occupied.

Effects of the action should be analyzed accordingly, arid appropriate mitigation/design strategies should be discussed. As written, the EISlacks important biological information and does not adequately assess adverse effects of the proposal or mitigation measures needed to reduce impacts to federally listed species. Furthermore, the document contains no analysis of impacts to the Multiple Species Conservation Program (MSCP) planning process or the species covered by the plan. Analyses of indirect and cumulative effects are not provided for most resources that would be impacted by this project.

General Comments

1. Direct, indirect, and cumulative impacts to listed/sensitive species are not fully analyzed in the EIS (see additional comments below) anda clear, comprehensive mitigation proposal is not provided. Without additional information and analyses,potential project impacts cannot be substantiated. Fish and Wildlife Service (the Service) encourages DHS to continue more comprehensive discussions with our Ecological Services Program ·to avoid, minimize and compensate for effects of construction and operation of the proposed fence to federally-listed species.

2. The EIS should include a discussion of how implementation of proposed project would influence regional planning efforts, particularly the San Diego County Subarea Plan of the Multiple Species Conservation Program (MSCP). Discussion should include potential impacts to and mitigation for sensitive vegetation and both listed and non-listed species covered by the plan. It is important that both the project and its mitigation be consistent with requirements of the plan, as inconsistency could alter the County's ability to achieve its regional conservation and development goals. A lack of consistency would be unfair to private and public entities by placing additional burden on the other interests responsible for achieving the stated goals and objectives of the plan.

3. The proposed A-I section would occur within the portion of San Diego County covered by the approved Multiple Species Conservation Program. The A-2 section would occur within the planning area of the East San Diego County MSCP, currently in preparation. Direct impacts to vegetation communities in both sections should be mitigated consistent with the ratios set forth inthe MSCP and applicable ordinances. Mitigation for habitat losses within the approved MSCP area is necessary to ensure achievement of conservation objectives in that plan.

4. The Otay Mountain Wilderness Area was incorporated into the Multiple Species Conservation Program

2

(MSCP) preserve system to be protected in perpetuity. We are concerned with the proposed construction activities in a wilderness area because construction of permanent roads and other structures are generally prohibited in a wilderness area. We recognize the significance of constructing a border fence and support facilities for purposes of border security. Therefore, we recommend a meeting among DRS and Interior to find a way to address Interior's concern.

5. The project description does not provide sufficient information regarding impacts to listed species and sensitive habitats. Project-area aerial photographs with clearly identified habitat/vegetation communities and potential habitat for listed species should be provided to assist in development of effects analysis. In addition, the EIS should clearly describe project-related impacts (temporary and permanent) to each vegetation community and species habitat for all aspects of the project, including road widening, staging/lay down areas, new fence construction, and new road construction.

6. The EIS contains an insufficient alternatives analysis. Project alternatives, including options besides fencing, should be analyzed. Technology and/or alternative patrol methods (e.g., horseback) may be available in lieu of or in addition to fencing that would result in reduced direct impacts to natural resources, Such project alternatives should be clearly stated and analyzed in the EIS. Project alternatives that require less alteration of topography and hydrology (less cut and fill) should also be considered.

7. The EIS repeatedly states that design criteria would be used to minimize adverse impacts to threatened or endangered species and their critical habitat. Please clarify where this has or will occur. If avoidance measures cannot be included in the design criteria, mitigation measures should be included to offset impacts to levels that are less than significant.

8. To accurately assess impacts of the proposed project, the Fish and Wildlife Service (the Service) recommends that wetland delineation for the project be verified by the U.S. Army Corps of Engineers and that natural resource agencies are provided with a mitigation plan for any unavoidable impacts to wetlands and waters of the U.S. for review and comment prior to a final decision. The mitigation plan should include a complete restoration plan for temporary impacts, as well as mitigation for all permanent direct and indirect impacts to jurisdictional areas.

9. Statements used throughout the document that the fence will have beneficial effects to wetland/riparian areas, vegetation, wildlife, and federally listed species (by reducing human activity and trash) are not supported. Considering ,the significant impacts from constructing the project, perpetual impacts from operational activity (e.g., patrols, apprehensions) and ongoing impacts from maintenance activities, adverse impacts to federally-listed species and other sensitive resources will likely occur for the lifetime of the project. Regardless, decision documents should include a thorough analysis of all direct, indirect, and cumulative impacts that is based on best available scientific information. The EIS should provide an analysis of how the fence is likely to alter CBP operations and illegal traffic to help determine potential indirect environmental benefits of the fence. If environmental benefits would occur, but oflesser magnitude than negative environmental impacts, additional mitigation should be identified to offset negative impacts to below a level of significance.

10. The EIS should provide the reader with current information on existing barrier fence segments along the.

International Border in San Diego County so that assessment of cumulative effects is possible, including effects to unlisted species.

11. Analysis of how the proposed project across Otay Mountain will affect watershed of the Tijuana River and sub-watersheds (Copper Canyon, Buttewig Canyon, Mine Canyon) should be conducted. The significant cut-and-fill slopes along the south face ofOtay Mountain would destabilize the watershed, potentially causing significant soil erosion in riparian habitats. In addition, operating and maintaining a personnel-vehicle fence and roads across the slopes Otay Mountain will compound those adverse affects.

Specific Comments

2.0 Proposed Action and Alternatives, pg. 2-1:

3

• "This section provides detailed information on USBP's proposal to construct, maintain, and operate tactical infrastructure ... " While description of the proposed action includes construction, maintenance, and operation of the fence and associated roads, the EIS does not include analysis of potential environmental impacts associated with maintenance and operation activities. Without analysis of probable maintenance and operational activities, the effects analysis is incomplete.

• The EIS is unclear regarding what roads will remain for USBP's use after completion of the project. It is understood that the fence will be placed on top of a newly-constructed road along fence alignment and that Pak Trail would be improved to accommodate construction vehicles and USBP vehicles. Once fence construction is completed, it is unclear how the road which the fence is placed upon will be utilized. Also, it is unclear if Pak Trail will remain the width necessary for construction vehicles once the fence is constructed or narrowed to a width more reasonably accommodating USBP patrol vehicles.

• The EIS does not describe environmental impacts associated with construction and use of "trails" (roads for light-tracked vehicles) that would be used to access sections of the fence where the road is not directly adjacent. The footprint of these "trails" and analysis of associated impacts from construction, operation and maintenance should be included.

2.2.5 Other Alternatives Evaluated but Eliminated From Consideration, pg. 2-4

• While the EIS considers several alternatives in addition to proposed action (i.e., Secure Fence Act Alignment; additional agents in lieu of tactical infrastructure (TI); vehicle barriers in lieu offence; fence only; technology in lieu ofTI), an alternative incorporating use ofa combination of methods is not discussed. For example, potential use ofTI in combination with additional agents and use of technology should be considered. Such an alternative could include construction of new fence along existing roads. In areas where existing road is somewhat north of the international border, use of alternative technologies and operational requirements should be analyzed. Use of multiple methods of detection may significantly reduce environmental impacts of the proposed action, particularly in sensitive areas that would be significantly impacted.

2.2.7 Tactical Infrastructure Following Natural Topography Alternative, pg. 2-5:

• The reasoning for dismissing consideration of this alternative for section A-I seems arbitrary. Remaining within 1,000 ft. of the border is not one of the screening criteria for alternatives. In fact, the proposed action in section A-I contains a portion offence that would be greater than 1,000 ft. north of the international border line. This criterion was not used uniformly among the design alternatives. We urge DHS to consider the Natural Topography Alternative as it would reduce impacts to sensitive resources, topography, and hydrology, by consolidating the project footprint.

Staging Areas:

• While the EIS maps depict locations of eight (8) staging areas, there is no site-specific discussion of the vegetation of each of these staging areas and subsequently no discussion of potential impacts. Also, the maj ority of these staging areas are being proposed in undisturbed habitat. Relocation of staging areas to previously disturbed lands would reduce impacts to sensitive species (i.e., habitat loss, fragmentation, and/or establishment of invasive species). In addition, we recommend reduction of staging areas be considered, as this may accommodate project-related needs by using phasing or other logical sequences.

3.9 And 4.9 Vegetative Habitat:

• Since all native vegetation classes and non-native grassland are considered sensitive or rare plant communities under local (MSCP) and State regulations, impacts to native vegetation and non-native grassland would be considered significant. Impacts should be mitigated consistent with the vegetation mitigation ratios set forth in the San Diego County MSCP and applicable ordinances.

• The EIS states 72.2 acres of undifferentiated native vegetation will be impacted by the proposed project.

All plant communities need to be identified and properly mitigated for, given their established sensitivity under MSCP.

• Although not federally-listed, Tecate cypress is an extremely sensitive species. Tecate cypress are an obligate larval host plant for the highly sensitive Thorne's hairstreak butterfly. Impacts to these species should be avoided, minimized, and/or mitigated to a level of insignificance. It is especially important to avoid impacts to mature Tecate cypress due to their current scarcity resulting from numerous recent wildfires.

• The EIS should provide maps delineating the plant communities and habitats oflisted species that would be

4

impacted by the project.

• Aerial maps delineating project impact area should be provided for section A-2. Maps similar to those in Figure 2-3 would be sufficient.

3.10 And 4.10 Wildlife and Aquatic Resources:

• Potential impacts to wildlife and aquatic resources should be discussed in terms of life history and/or habitat requirements ofthe species that occur in and adjacent to project corridor. For example, there is no discussion of potential impacts to wildlife from erecting barriers between habitats on either side of the international border. Besidesdirect impacts of removing habitat, these gaps/barriers could prohibit movement, thereby reducing gene flow. Also, absence of vegetation in these large gaps could result in increased predation.

• TheEIS should include a specific discussion of mitigation measures that would be implemented to ensure consistency with the Migratory Bird Treaty Act.

• Direct and indirect impacts that occur in the Tijuana River watershed should be mitigated on-site or within close proximity to the impact.

• Unmitigated adverse impacts from other CBPIDHS projects (e.g., the previously authorized 14-mile fence) to the Tijuana River watershed should be implemented to address cumulative effects of various CBP projects.

• The EIS should include measures to avoid or minimize impacts to State-listed species and species covered by the San Diego County MSCP Subarea Plan. Where impacts cannot be avoided, mitigation should be provided in accordance with the MSCP Subarea Plan.

3.11 And 4.11 Threatened and Endangered Species:

• Because biological surveys were conducted at an inappropriate time of year and were not consistent with applicable species surveys, analysis of potential impacts should be reconsidered for the following species in Section A-I: San Diego fairy shrimp, San Diego ambrosia, San Diego button-celery, Otay tarplant, Otay Mesa mint, spreading navarretia, Mexican flannelbush, California Orcutt grass, and Encinitas Baccharis. Excluding these species from consideration is biologically unsupportable without proper surveys.

Historical survey data may not include observations within project area because very few surveys have been conducted there, not because the species are actually absent. The project area is remote and understudied. If appropriate surveys cannot be done, analysis of potential impacts to these species should be based on plant communities, geology, or other indicators of habitat suitability. Some species may occur

in disturbed native habitats. •

• Reasoning for excluding analysis of potential impacts to listed species in section A-2 is based on incorrect biological rationale. Apparently biological surveys and reconnaissance surveys were conducted outside of the appropriate season. Potential impacts to listed species in this section need to be analyzed. Where listed species do not occur because of recent fire, habitat potential for past and future occupancy should be addressed. Lack of historical observations in a database for such a remote, understudied area should not be grounds for dismissal of analysis of potential impacts. The EIS. should provide maps delineating species habitat that would be impacted by the project and aerial maps delineating the project impact area.

• To fully analyze project impacts to listed species, the EIS should include maps of the project site that depict biological information within and adjacent to the project area and occurrence data and potential habitat for protected species.

• While the EIS acknowledges that indirect adverse impacts to potentially suitable habitat for protected species could result from illegal immigrants shifting their activities to the end of newly-constructed fence segments to avoid apprehension, it does not include a thorough analysis of additional potential impacts to protected species and their habitats in these areas.

• The EIS should include detailed discussion of potential impacts of constructing low water crossings or similar drainage structures to riparian habitat and protected species that may occur within these areas.(e.g., least Bell's vireo, southwestern willow flycatcher, and arroyo toad). Given that the footprint of these structures is expected to extend approximately 25 to 40 feet on either side of the crossing to allow placement of rip-rap (see page 2-4), installation and use of these structures could have significant impacts to riparian habitat and associated species.

• Potential impacts to threatened and endangered species should be discussed in terms of life history and/or habitat requirements of the species that occur in and adjacent to the project corridor. For example, there is no discussion of potential impacts of erecting movement barriers or increasing the gap between habitats on either side of the international border. Besides direct impacts of removing habitat, these gaps could

5

prohibit movement thereby reducing gene flow or increasing predation.

• Least Bell's vireo and southwestern willow flycatcher: Although the EIS states that impacts to riparian habitat would occur, effects analysis does not analyze potential for habitat loss or potential loss/failure of nests due to habitat removal or potential noise/lighting effects on nesting birds. These impacts would be . likely to occur given probable coincidence of the project and breeding season. Mitigation should be provided to offset riparian habitat loss. Vegetation clearing should occur outside breeding season. If vegetation clearing must occur during breeding season, we recommend that nest surveys be conducted just prior to grading/grubbing. Disturbance within 300 foot of active nests should be avoided.

• Arroyo toad: Analysis of effects to arroyo toad is unsupported because no surveys were done within potential habitat in the project area. Analysis should not rely entirely on historical observations because the project area is remote and understudied. If focused surveys are not possible due to time constraints, the effects analysis should be based on availability of potential habitats including both potential breeding and aestivation habitat. The Service has previously identified areas along the Tijuana River, Mine Canyon, and Cottonwood Creek where arroyo toad habitat Occurs. At a minimum, this information should be included in the final EIS .. However, arroyo toad aestivation habitat generally includes terrestrial habitat upslope of the floodplain. Aestivation habitat should be identified and delineated in figures in the final EIS.

• Coastal California gnatcatcher: The EIS only analyzes impacts to coastal sage scrub (CSS) habitat. While the coastal California gnatcatcher is primarily associated with CSS during the breeding season, the species also occurs in non-CSS habitat (e.g., chaparral, non-native grassland, riparian), which it uses for foraging and dispersing. The analysis of impacts to this species should include impacts to non-CSS habitat. Also, since wildfire is a natural component of the CSS/chaparral ecosystems, impacts associated with fire are considered temporary. Therefore, the acreage of burned areas within project sites should be included in the estimate of gnatcatcher habitat that would be temporarily and permanently impacted by the project. We do not agree with the determination that impacts to 75 acres ofCSS would be a minor impact to the local population. Impacts to 75 acres ofCSS habitat alone could impact upwards of 10 gnatcatcher pairs. Impacts to CSS and other habitats with potential to support gnatcatcher should be mitigated for according to the MSCP. Vegetation clearing should occur outside breeding season. If vegetation clearing must occur during breeding season, we recommend that nest surveys be conducted just prior to grading/grubbing. Disturbance within 300 foot of active nests should be avoided.

• Quino checkerspot butterfly and critical habitat: The project should implement all the mitigation measures proposed in the EIS. Additionally, mitigation for impacts to Quino should include compensation for all habitat with potential to support Quino, not just areas designated as critical habitat.

5.0 Mitigation and CEQA findings

• Mitigation measures provided in this section do not offset impacts associated with this project to below a level of significance. We encourage DHS to continue to work with us to develop feasible designs, practices, and habitat restoration and acquisition options that would be reduce or mitigate impacts to a level of insignificance.

We recognize the important nature of this project and offer to work expeditiously so that the environmental review can be completed in a timely manner. The Department of the Interior (001) recommends that Department of Homeland Security (DHS) work closely with us in an attempt to design the project in a way that avoids and minimizes adverse effects to federally- listed species. Unless more complete information is provided on project design and mitigation measures, it appears that initiation of formal consultation will be needed.

If you have questions or comments regarding the contents of this letter, please contact Kurt Roblek or Pete Sorensen, Fish and Wildlife, at (760) 431-9440 or Janaye Byergo Bureau of Land Management at 858-451-1767.

Thank you for the opportunity to review this project.

Sincerely,

6

Patricia Sanderson Port Regional Environmental Officer

cc:

Director, OEPC FWS, Region VIII BLM

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