LEGISLATIVE SUMMARY SHEET Tracking No. DATE: October 22,2012 TITLE OF RESOLUTION: RELATING TO RESOURCES AND DEVELOPMENT: NAABIK' fy ATI' COMMITTEE: RELATING TO RESOURCES AND . DEVELOPMENT; NAABIK'fy ATI' COMMITTEE: GRANTING FINAL APPROVAL TO THE ENERGY DEVELOPMENT AGREEMENT BETWEEN THE NAVAlO NATION AND NABEEHO' POWER, L.L.C. PURPOSE: GRANTING FINAL APPRO VAL TO THE ENERGY DEVELOPMENT AGREEMENT BETWEEN THE NA V AlO NATION AND NABEEHO' POWER, L.L.C. This written summary is provided in accord with Navajo Nation Council Rules of Order, Rule II(A), or Standing Committee Rules of Order, Rule 12, on the resolution as drafted by the Office of Legislative Counsel. This written summary does not address recommended amendments as may be provided by the standing committees. The Office of Legislative Counsel requests each Council Delegate to review each proposed resolution in detail. 12-750-1
Transcript
LEGISLATIVE SUMMARY SHEET
Tracking No. ~
DATE: October 22,2012
TITLE OF RESOLUTION: RELATING TO RESOURCES AND DEVELOPMENT: NAABIK' fyATI' COMMITTEE: RELATING TO RESOURCES AND . DEVELOPMENT; NAABIK'fyATI' COMMITTEE: GRANTING FINAL APPROVAL TO THE ENERGY DEVELOPMENT AGREEMENT BETWEEN THE NAVAlO NATION AND NABEEHO' POWER, L.L.C.
PURPOSE: GRANTING FINAL APPROVAL TO THE ENERGY DEVELOPMENT AGREEMENT BETWEEN THE NAVAlO NATION AND NABEEHO' POWER, L.L.C.
This written summary is provided in accord with Navajo Nation Council Rules of Order, Rule II(A), or Standing Committee Rules of Order, Rule 12, on the resolution as drafted by the Office of Legislative Counsel. This written summary does not address recommended amendments as may be provided by the standing committees. The Office of Legislative Counsel requests each Council Delegate to review each proposed resolution in detail.
12-750-1
,
; esources &Devefopme Cammitta
mlttee NO22' NAVAJO NATION COUNCIL Second Year, 2012
INTRODUCED BY Navajo Nation uncil -I
5
6 (Prime Sponsor) ((J1.ltdes Darr1tJYI 1I) 7
8 TRACKING NO. ~
9 AN ACTION
10 RELATING TO RESOURCES AND DEVELOPMENT; NAABIK'IYATI'
II COMMITTEE: GRANTING FINAL APPROVAL TO THE ENERGY
[2 DEVELOPMENT AGREEMENT BETWEEN THE NAVAJO NATlON AND
13 NABEEHO' POWER, L.L.e.
14
15 BE IT ENACTED:
16
17 I. The Navajo Nation Council having received the proposed Energy Development
18 Agreement (Agreement) between the Navajo Nation and Nabeeho' Power, L.L.e.
19 (Exhibit No.1) and the accompanying Navajo Nation divisional and departmental
20 assessments also in Exhibit No. I; and
21 2. The Navajo Nation Council having received, pursuant to 2 N.N.e. §501(B)(4)(a),
the Resources and Development Committee report regarding that Committee's
review and recommendations regarding the attached Energy Development
24 Agreement, (Exhibit No.2);
25 3. The Navajo Nation hereby approves the Energy Development Agreement
26 between the Navajo Nation and Nabeeho' Power, L.L.e. as attached at Exhibit
27 No. I.
28 4. The President of the Navajo Nation is hereby authorized to execute this
29 Agreement and all such document necessary to effect the intent of this legislation.
30
12-750-1
EXHIBIT
'-'/Vol ~
ENERGY
DEVELOPMENT AGREEMENT
BETWEEN
THE NAVAJO NATION
AND
, NABEEHO POWER, L.L.C.
This Energy Development Agreement (the "Agreement") is entered into this __ day of August
by and between the Navajo Nation C'Nation") and Nabeeh6 Power. L.L.c.. a Navajo Limited Liability Company ("Nabeeh6 Power").
WITNESSETH
WHEREAS, the Property has a potential solar index of 40 megawatts or better and contains transmission and distribution lines that are available for use in solar energy distribution and transmission.
WHEREAS. the Advisory Committee of the Navajo Nation pursuant to Resolution ACF-68-71 has withdrawn the land as an Industrial Park.
WHEREAS. the Project has undergone tests, surveys and investigations, including soil tests,
environmental studies and engineering feasibility studies to determine feasibility of the Project and all environmental reviews have been completed.
WHEREAS, the parties desire to set forth their understandings and agreement with respect to the responsibilities each will undertake in the development of the Project, the manner in which the costs of
development will be funded, and other matters with respect to the Project as set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth herein and other good
and valuable consideration. the receipt and sufficiency of which is hereby acknowledged by each Party,
the Parties hereby agree as follows:
ARTICLE 1
1.1 Pu rpose of Agreement. The primary purpose of this Agreement is to set forth the respective
rights, duties, and responsibilities of each Party with respect to development of the potential development
of a solar array with solar power system equipment and other infrastructure related to the capture,
distribution and transmission of solar energy on the Property which consists of approximately 307.434 acres of land (the" Project").
ARTICLE 2
2.1 Key Terms for the Business Site Lease. The parties wil I commence negotiations on a definitive Lease that will include the following key lease terms:
(a) Development Period: The Lease will have an initial thirty (36) month development period, which will commence upon the execution of the Lease.
rb) Leuse Rental: Shall be determined bv a certified appraisal III accordance with the Navajo
Nation Business Leasing Regulations of2005.
(c) Leose Term: The Lease will have an initial twenty five (25) year term. plus two (2) renewal
periods up to (25) years each.
(d) Improvements: Nabeeh6 Power shall develop the Project for a value up to $160,000,000.
(e) Terminotion Clouse: The Lessee shall be granted all leasehold interest and rights to the
Property subject to the execution of a Power Purchase Agreement with an off taker within sixty (60)
months of the date this Lease is executed by the Navajo Nation President or an authorized designee. Ifno
Power Purchase Agreement is subm itted to the Nation, the Lease wi II become null and void.
(j) Sovereign Immunity: The Lease shall not waive the sovereign immunity of the Navajo Nation
and shall be governed by the laws of the Navajo Nation.
2.2. Business Site Lease: The parties will negotiate in the Business Site Lease in good faith, which
Business Site Lease will substantially incorporate the Key Lease Terms contained herein, but it is
understood that the Key Lease Terms represent only the present proposal ofNabeeh6 Power to enter into
the Lease with the Nation, and the Key Lease Terms and this Agreement do not set forth all of the
material terms that Nabeeh6 Power anticipates would be included in the Lease. If the parties are unable to
reach an agreement on the Lease, neither party shall have any further obligation to the other party and no
party shall be entitled to bring any claim against the other party as a result of, arising out of or relating to
the fai lure of the parties to agree upon or to enter into the Lease.
ARTICLE 3
3.1 General Responsibilities:
(a) Financing Nabeeh6 Power shall be fully responsible for seeking financing for the Project
and the Navajo Nation is not expected or being requested to put forth any dollars for the contemplated
project.
(b) Navajo Preference Nabeeh6 Power shall agree to comply with the Navajo Nation
Preference in Employment Act and the Navajo Nation Business Opportunity Act.
(c) Compliance with Laws Nabeeh6 Power agrees to comply at all times with the applicable
tribal, federal, and local governmental or regulatory requirements with respect to the Project, including
the Navajo Nation Ethics and Government Law.
(d) Responsibility of Development Nabeeh6 Power shall be fully responsible for the overall
development of the Project.
3.2 Coordination of Development Activities.
(a) Nabeeh6 Power and the Nation agree to coordinate and cooperate in good faith on all
matters for the development of the solar park.
ARTICLE 4
".1 Development: Upon the execution of the Lease, Nabeeh6 Power shall commence negotiations regarding the Project with public utility companies, including, but not limited to. Arizona Public Service Company, Navajo Tribal Utility Authority and Salt River Project.
".2 Funding: aside from the existing environmental clearances and reviews, any further environmental studies that are needed Nabeeh6 Power is solely responsible for funding. [n addition, Nabeeh6 Power is solely responsible to obtain and provide the necessary monetary support for any interconnection agreement. The design and engineering of the project shall be solely responsible for all aspect including the financing. All proper licenses, permits and other considerations for the project and who pays for it.
".3 Project Information
4.3.1 Solar Park Site Development has been planned and implemented with the beginning site control of 307.43 Acres completely shovel ready for 40 MW of photovoltaic energy with an additional acres (net) in several key areas within the Navajo Nation. These projects will have values to large PPA ready projects from the top renewable energy companies in the world. (See Renderings Below)
".3.2 Company Info and Approach Nabeeh6 Power is a developing industry leader in the Consultation and Development of zero-pollution, renewable energy Ground Based Solar ("GBS") projects. The strategic approach is as follows:
I. The core product that Nabeeh6 Power will provide is an abundant supply of clean electricity and
consulting, brokering, investing and managing of Renewable Energy. 2. Build upon existing, and develop new, critical relationships with local and regional utilities,
government and social organizations. 3. Identify potential PY facility sites -I. Secure contracts with construction and maintenance providers 5. Facilitate Power Purchase Agreements
".3.3. Financing The total site funding and budget is $6,000,000.00. The funding proceeds will be used as follows:
I. $200,000 for marketing. This amount is earmarked for effectively marketing the products as described below in the Marketing Summary section of the Business Plan.
2. $2,000,000.00 for Staffing and Labor. This portion offunding is intended for hiring employees to produce the products and assist marketing and sales efforts.
3. $3,800,000.00 for Service Roads. Developing and Building Park Ground Solar Construction and equipment ahead of major finance and Grants.
The Business has Financial projections forecast a break-even point In less than 5 years after product introduction. Conservative estimates show at least a 20% return on the investment by the end of the financing period.
Once the site is fully developed then the total build out of the entire Solar Park will exceed $160,000,000.00 and require the use of al.1 Government Grants, Investment as well as interim and senior debt financing. The model for the entire project will be a cap rate return of approximately 4% per annum.
EXHIBITS:
,·-----fShush Be Toh __ e-_::~>,:.~,:: .. Church Rock NM
,;..;:- -~~:=..-- .. SObr Malllel P:)11t"Ief3 New MexICO PrQfeC1 Srtes
o o••
a ...:u",....~ ---..
Entitlement Status Est. Completion Date
Conceptual Site plan Completed
Estimate of site MW capacity Completed
25+ year site control In process August2012
Environmental Studies and Clearance Completed
Archeological Studies and Clearance Completed
Rare Species Studies and Clearance Completed
Religious and Spiritual Studies and Clearance Completed
Full and recently staked Boundary Survey Completed
Accurate Legal Description Completed
Soil studies and Tests Completed
Water Shed and Storm Water Requirements Completed
Zoning Approvals Completed
Right of Way Description Completed
Road and Traffic Approvals Completed
Landscaping Approvals Completed
Wetlands Approvals Completed
Identification of Easements Completed
Regulatory Approvals Completed
All Required Governmental Approvals In/Works
Political Support Yes
Local and Community Support and Approvals Petition
Mitigation Requirements Completed
Mineral Rights Report Completed
Security assessment Completed
Local Utility Report Completed
Temporary and Permanent Use Permit In Place
Building Permits/Permissions Completed
Full Due Diligence Package Completed minus lease
Full Entitlement Package Completed
ARTICLE 5
5.1 Warranties. The Nation and Nabeeh6 Power represents, warrants and covenants (i) it has the authority to enter into and perform its obligations under this Energy Development Agreement and (ii) the persons executing this has full power and authority to do so. Nabeeh6 Power warrants there is no litigation pending or, to the best of its knowledge, threatened to which would have a material adverse effect on the financial condition, prospects, or business and its obligations to perform under this Agreement.
5.2 Binding Agreement: The parties hereby specifically acknowledge and agree that this Agreement shall be binding upon the parties.
5.3 Entire Agreement: This Agreement represents the entire agreement of the Parties relating to the subject matter hereof, and incorporated and supersedes all other prior agreements. arrangements and understandings between the Parties with respect hereto.
5.4 Term: This Agreement shall become effective on the date signed by the President of the Navajo Nation or his authorized representative and shall continue in effect until the expiration, termination. or reauthorization.
5.5 Amendments. This Agreement shall not be modified or amended except by written agreement between Nabeeh6 Power and the Navajo Nation.
5.6 Indemnification. Nabeeh6 Power agrees to hold harmless and indemnitY the Nation against any and all/osses, liability or other causes of action of any type whatsoever arising under this Agreementor any of the agreements mentioned herein.
5.7 Disputes and Governing Law. Any dispute arising out of or relating to this contract shall be resolved through negotiation and the laws of the Navajo Nation shall apply.
5.8 No Waiver of Sovereign Immunity. Nothing herein shall be considered as a waiver, express or implied, of the sovereign immunity of the Navajo Nation.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.
THE NAVAJO NAnON NABEEHO POWER:
President Ben Shelly Amber Schillinger
Jan 13 2012 3:37PM HP LASERJET FAXNavajoEPA 9288717996 EXHIBIT
l't/oi'!
BEN SHELLY rR~S!!:.'=!';; REx LEE JIM \,.' iCE J'kES ;Dcl~T
ENVIRONMENTAt PROTECTION AGENCY OFFICE OF ENVIRONME..1\1TAL REVIEW
PO BOX 339 WINDOW ROCK ARIZONA 86515 Office: 928/871-7188 FAX; 928/871.7996 Website: w",,"w.navOIjonationepa.org
TO: G:u.1'ald Benally, EnviIonment.a.l ReVJ.ewer Real Estate Progtam Rw:al Business Development Offi.ce DiI'isioD of Economic Development
SUBJECT: Proposed Shush Be Tab l11C AC Solar Patk Project
The Navajo Nation Environmental Protection Agency Office of EnviJ:omnemal Review (NNEPA OER) rece.lyed the second environmc:.nul assessment :report on ::Jecember 29, 2011. This ptoposed si.t~ at 320 acres was previously approved and designated as Shush Be To lr..duso:.ial Paxk. NNEPA reviewe.d' and recommends conditional approval pursua.nt to Title 4, NNe Cb:l.pte.! 9, Navajo Nation EnVl!onmelltaJ Policy Act, Subchapter 1, ~904. NNEPA bas been mvolvec wich this pIOposed prOject since the: fust J:eview in Nove;mbe:r 2010. NhTE:PA at the time of the firSt xeVJew
recommendec in anairung the Iyanbi.to's Chapter approval si.r:.ce the Gazing Land Officet a?pIoacbed the NNEPA staff during the initial £cld 5ite visit and asked guesrions. The ?roposed site is lo:ated in close proximiY)' of established homesteads therefore a revisit to the Iyanbito Chapter was recommended. After the November 2010 : eV':iew, NNEPA Wuer Quality recomme.nded attai::nng 401, 404- and 402 p6J:mits, befo!f: commencing cO:lstrUction acrivic.es, and a ==O.tlOO:mD dated Maxc:b 1, 2011 from Mr. Gw.rald Bena.lly, Navajo Nation Real Estate Depanme:nt, DivlSion of Economic Deve.10pweDt, also recOIIll':nendd that: wa~ quality permiU: should ·De acguireci bdon: comm=ang CODSttUctiOl1 accivities.
: J.R. Analltl SA Services. An E:wir01lmemai )nvest;"(\(lOl1 Reran Shush Be Ton) L:"C AC Solar Park Project ~ayai(J "ower Inc. December 20 I J.
Jan 13 2012 3:37PH HP LASERJET FAXNavajoEPA 9288717996
page 3
As of December 2Ul1, based 00 £eld site risits, an earthen bridge Wil.~ created to cross me unknowo wash by the business propoO<:l1I, Design Data SoluTIons and/or NlIT"ajo Power uc. ~~'EP_'\ \Xlau:r Qwiliry is investigating md mar iwri.a.r.e an eoforcemem acnon.
In the: roe:anume, NNEPA reCOmDle.D.Qs condirional approlT~ and balting all surface 1s.nd disturbance and ConSTruction a.crivities and complying 'cvith the folloPoring rccomzncndatiDDB fOl the pIOposed Shush Be Toh AC Sow' Pari: Project.
1, N;lvajo l\l~tion CIeJln Waler Act:
a. §401 C::::ci£iCfLUOD: A copy of the m=onmdum will ~t prov1.ded to Ms. LeeAIlD Silv~:mnith., 401 Wat~ Quality Specialis:. She can be contacted at 928/871·7700 or via email Jc~ea.nna.marpne;d)201,"ahoo.cnm.
n. §402 NPDES Individl:.aL If there will b(; :my source of w~teJ: to be Ieleased into any ::lose prolcimlty or known washes, streanlS. creeks, uvcis, etc., 2. 402 NPDES per:r..lt will bt: required.
,: §402 NPDES General ($ronn Water): The proposed business least' lS at :!:32CJ-ilCXf:S
and is gTe.ater than the 1 acre, a copy of the Storm Water Pollution Prevcntlon Plan (SWPPP) and Best Management Pr~ctic:es ;:B!vIPs) ZIlUSt be filed with USEPA Regioo 9 and :l copy to be sent to NNEPA Water Quality to Mr. Patrick Antonio, Program Managa. He CaD be reached at 928/871.7185. A CO?Y of the SWPPP aDd NO] must be kept wi~ me premise for furu.re inspections and visits !rom the NNEPA Wate.I' Quality SraE.
d. §404 Dredge & Fill: If any soil materia.! will be taken from O~ any work will be in any known washes, streams, creeks, rivers, etC., a. 4()4 pennit will be required bcfOl:C; commencing aDy consnucnon activities. Mis. LeeAno Silversmith is the contact for the. 404 Pe:mllttlng OD behaE of the US Army Corp of Engineers.
~ Navajo NadoD Air Pollucion Prevention and Control Act: !1. "?he business is located within an axea designated as Class II which is illldassified for
the National Ambient A1r Quality StaDdaIds (NAAQS)- att:urun=t ot the N.A.A.QA;
b. Visibility iR good to excellent; r Dust must be cono:olled by a?proved water p=n1l: through the Navajo DIvision of
Naturll1 Resoul:ces, Depanment of Watt.r ResOllIces, Water Code. The contact IS
:vir. Jack Utter, 928/729-4003. 3. ]VDva.jO Nation Safe Dn'nking Water Act:
Il.. -:-be NNEP.A - Public Wattr Systems SUpervlSlOr. Pwgrm:o rPWSSP) recomroe.ncis ill proposed drinking water proje.crs (extensions, upgrades, :;It:W wcl.!s~ n~ public water systems, etc.) must also comply WIth the design revlew and :Cll1strUcoon permir of the P\,\/SSP pursillln: the Na"ajo NlltiOD ?o.m.ary Dunking Water Regulations.
b. '?he ne",' ;:Jnsiness owner/operator and w,nc;:r utility compaoy are subJe.ct to $uomit
t.~c: ~::Jropo~ed domestic waste wate.r and public drinlting wa.teY lines to Mr. Delfn:d Gene, Civil Eogmea, NNEPA PWSSP, he car. be contacteD at 928/871-7758 or 'l"isi: the website at 'W'\h7\A·,nn.-vajnpublicu'mer..nl'g.
4 _"'.l:;l'Vajo "",radon's SoJid \f/aste Act:
memo_p:ojecrdeveJo:>rnenr_shush be toh ] solar parK proj eo r'J.g~ 1 of 4 .. /13/12
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a.. Do not allO'Vo' public to take construction waste, cumularitively ?\TN:EP.A gets compkmts and :reports on illega] tt:ash dumpings on :rural areas and mthe watas of the US and Navajo Nario!L
b. NNEPA l:ecommends prape:: disposal -of related waste in app:rop.t:ia.te con.tainers and not released into the property will lessen impaCtS to the public and environment.
c. Any encounter andlOt dUlcov~ of illegal Wasl:e dumping sites (which we:re .highly {risible duri.cg the initiaJ field air.e visit) ~;j)j be business proponent's and the contIa£tor's responsibility ill clean the :ue.a befo.Ie conunenciJlg construction acti:viries.
a. For your infounation, pursuant the Navajo NationComp["ePepsive EnvjronmentlLl Resp0nse, Compensation and Liability Act: app.roved by the NavajO Nation COWlcll, CF-07-08, February 2.6, 2008, tht: NN CERCLti. iDcludes peuoleum (inclu-di.Dg erode oil or any fraction thereof, natural g,ls, MturlU gas hgui.ds, liquefied lJanml gas or synthetic gas usable: for fuel (ox mixnu:es of nana-al ga.s and synthetic gas») unlike the US CERCLA or the· Superfund La.w and marld2.tespettolfum owner, opexator and guarantoI" to Ieport petroleum telease 2: 25 gallons at the site aud/or during transport ~cfu.tely to the Navajo Nation D epart:tnent of Eme.rgt;ncy M:m.agement within the Nanjo Nation Division of Public Safety. .
6. Nllvajo NatiOD Underground Storage Tank (UST) Act: a. No underground storage tanks are e:h'Peeted to be installed at the proposed site. b. Any aboveground stoIage tanks (AST) gtea.teI than 100 gallons mUBt meet the design
and installation spec::mcarions as described in the NNUST Act. c. :Mr. WllIIeJJ Roan, UST Specialist, is the cOnt~et for UST(AST issues. He can be
a. Contact the NNEPA Pesticide Program at 928/871·7815/7810 before applying any pesticides and heJ:bicides to control noxious and invasive plant species to ensuze the product is in compliance and appropriately applied by a cetti£i.ed an.d licensed applicator.
b. Pesticide mff will also m~:y need to be onsite to monitor duriog pesticide/herbicide application.
c. Any type of pesncide to be sold thtougb the converuece st.oj;e will be inspec:ed periodically to ensure the owuer is in compliance U1 distributing, selling accordingly to the FIFRA la.w and reguktioo.
8. Others To Contact Within Navajo Nation: a. Howard Draper, Navajo Nation Project Review Office to ensure proper protocol is
followed to designate the proposed area ior commercial/economic ckvdopment. b. New Mexico DepaJ.'tmt:nt of Transponation, Bureau of Indian Affairs-Division of
Transportation and Navajo Depanm.ent of Transportation to ensure a sate egress/ingtc55 access road.
c. Jack Utter, Division o[ Natural Resources, Department of Wau.r ResolJJ:ces, Water
Code Program for water usage penni!..
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A f~w ~uesoons here reg;u:ding the proposed acnOil: =-:las there been all) ~sue wiili the sunli.gh: reflecuug off the soW- panels: Wha:r 15 the pwbaDiliry of the sucli.ght :reflection from the solar pancls a.£[ecc the public tIlUlsportation system since the ?roposed actioD sire is locaced juSt off the Inter=te 40;' If thert are aDY questions, you may co::nac( Rita \"'VhitehOIse-l..<u:sen aT 928/871-7188. Tha.n.k YOU.
Cc: Alberl Damoo, ExeCllcivc:: Dirc::cwr, Divi5..lon of Economic DevelopmenT C:mununlt'j' Service Cuordimltor. Iyanbiw Chapter,?O Bo~ 498, Fon Wingate, Ne'w MeXJco, 87316 Howard Draper, }.,!N DivlSlon of Natural Resourc~, Laud Depllnmem, Projecr Revlt=W Ofiicf' .lad- Une::, NN DiviSIon of Natural ResoUIces, Departmem Of\X;lllt~.I Resou::cc::~, 'J(/;ner C()d~
ProgtaOl NMDOT via USPS BB Divisioo of Tl:losport2.non \>U USPS. l\'DOT Vill im:r:1a1 N:lvajo Nation nuil. !(NEPA Water Quality - Patrick Antonio; Lee. Ann Martinez; Ail: Quality; PWSSP;
RCRP; Superfund; UST; Pesticide; lUcion; Adminisrrac.oD cnwno Ele
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,f 12/12/2011 15:56 9288717869 FISHANDWILDLIF PAGE 85/85 I I
THE NAVAJO ~TION BEN SHELLY,.·.·E~X~H~'~8'~T-~ REX LEE JIM I "11/0.1"
MEMORANDUM
TO
FROM G=-~:---~--:-rir-'··~:'-'·~.;...:~::::::.m=:.~-"~~ep-;Eo...;...:;·:O::""e=nt.....;,:;'~--I--· -bz~'~ Dep em ofFish and Wildlife U(j DIVI ION OF NAruRAL RESOURCES
DATE Declber 12,2011
SUBJECT: DELJGAnON OF AUTHORITY
I will be on travelkd I am hereby delegating you to act in the capacity of the Director, Department ofFis~, and Wildlife, effective 8:00 a.m. on Monday, December 12,2011. T.his delegation shall enf at 5:00 p.m. on Friday, December 16, 2011.
Your authori ty wi cover the review and signing offof all routine: documents pertaining to the Department ofFi and Wildlife, except for issues that you feel should have the attention ()fthc Director.
BIOLOGICAL RESOURCES COMJ?LIANCE FORM NA AJO NATION DEPARTMENT OF FISH AND WILDLIFE
PO. BOX 1480, WINDow ROCK, ARIZONA 86515~1480 It is the Department's opin on the project described bel .til . . . '. and federa1laws protecting biological . 1 d' OW, WI applicable condltlons, IS In compliance with Tribal Codes. U.S. Endangered S cies M' resourc~ IDC u 109 ~e NavllJ(I E.o.dangered Species and Environmental PoliCy Th' ~ d ' Igratory BIrd Treaty, Eagle Prob:ctlon and Natioflll1 Environmental Poli Acts
IS. orm oes not preclu e or replace consultation with the US F' h d W'ldrk S . . . CY.'species is affected, j .. IS lUI I J ctVlce If a federally-listed
PROJECf NAME & NO.: !hUSh Be Yoh Solar Park (SBTSP) Business Site Lease of326.59± acres
DESC~10~: The Sa:r.1 P is a solar pho~vOltaic project that will t;onvel1 solar energy into electric energy to serve
the Navajo NatIon. Electncl~ W1Jl be transnutted via existing bigh-power tension lines.
LOeAnON: Sections ~ 11 22, T15N, Rl6W, NMPM, Iyanbito Chapter, McKinley County, New Mexico
REPRESENTATIVE: lUll rAmilIa, J.R. ADalia EA Senrices
ACTION AGENCY: Navajp Power, Inc.lNavajo Nation Division ofEconomic Development
B.R. REPORT TITLE / DA E / PREPARER: EAS-II 05IDEC 20 Il/J.R. AnaUa EA Services
SIGNIFICANT BIOLOGIC RESOURCES FOUND: Area 3. [l] Proposed business site lease ofJ26.59± acres is
within a Raptor SensitiveAI' (RSA); (2] ATCU (single bird) observed 00 DEC 2011 survey. The bird was flushed.
from an abandoned prairie d g hole.
POTENTIAL Th1PACTS
NESL SPECIES PO NTlALLY I:MPACTED; [1] Aquila chrysaetos (Goldtm .Eagle), G2, BGEPA, MBTA;
OTHER SIGNIFIC IMPACTS TO BIOLOGICAL RESOURCES; (1) Direct impaC15 on available
foraging for the Golden EagJ ; [2J The reduction in available prey may decrease ra.ptor foraging success (8S\lJting in
nest fai lure; [3] f APE nest fo nd in 2011 and fledged 3 young. Nest is located;> 0.8 km from the project site
boundary.
AVOIDANCE I MITIGATI N MEASURES: [1] The NNDfW concur:; with mitigation measures outlined in Section
IV.D; [2J The NNDFW highl recommends that gra.diJJ.g and consttucri(ln activities are initiated during the non
breeding season for Migrate Birds and may extend into the breeding sl~ason jfneeded as I\-1BTA-protected birds will
typically not establish a nest ite within an active construction lone; or complete all construction activities durin~ the
non-breeding season for Mi Dry Birds. Ift.b.is seasonal avoidance recommendation is followed, the project will not
result in the "take" of birds teeted under the MBTA.
CONDITIONS OF COMPL CE": (1] All grading and construction activities should be timed to avoid the
Migratory Bird breeding seas n of 1 MAR-IS AUG. In the event that gJrading and construction activities cannot avoid C:\old,jlc20JOIMy Doowncnl:>\NNl1J'\6 Cf-.-2011\1 1.1RA£06.doc
Page 1of2 NNDFW -B.R.C-F.: FORM REVISED 1~: NOV ~009
the breeding season, sut"Vey~ must precede those activities. Ifan active: nC:5t i~ discovered within 50 m (165 ft) of the
project area, a nest take Penbit must be obtained trom the U.S. Fish and. Wildlife Service for the removal of the nest,
egg9, and/or nestlings tu be . ed anificially in a federally pennitted migratory bird rehabilitation facility. The nest,
eggs, and/or nestlings must e removed by a federally pennitted migraJiory bird rehabilitator; [21 The project site is
within a Raptor Sensitive ea (RSA). All proposed power lines must be constructed with a raptor-safe power pole
design per Raptor Electrocution Prevention Regulations (R EPR).
FO~ PREPARED 'By / DkTE: Pamela A. KY6cl.Kal12 DEC 2011
COPIES 1'0: (add CiltegOri~ ~ necessary)
0 _ ~ ~...:....L..----f-- _
2 Ie 164 ecom e da ion: Signatu f Date DApproval ()pUf£. . r1z/tfcgjConditionaJ Approval 'thmemo)(:>r; "J'~-_(K/f/I1Ift~ &fl.. . ODisapproval (with m 0) Gloria M. Tom, Director, Navajo Nation Department of FJsh and Wtldlife OCategorical Exclusion with request letter) ONone (with memQ)
*l understand and accept tb condrtions of compliance, and acknowledge that lack of ~i~t\ture:n~Y be grounds for the Department not ree ending the above described project for approval to the Tnbal DecJsJon-maker.
I Date
C\oJd?OlO\M:y Do<"nnm..Il"l"~CF_2011 II I.lR;\£06.doe
I Page 2 of2I NNDfW -6.ltCf.: FORM Rf,VlS.ev IZ NOV Z009
\
12/12/2011 16:56 g2887170&9 FISHANDWILDLIF PAGE 04/05 I
I rJU:SJDENT
JlI!;N SHELLY VIa PRESIDENT REX :tEE ,nM
NAVAJO FISH A D WILDLIFE P.O. BOX 1480 WINDOW ROCK, .AZ. 86515
12 December 2011 I1JRAE06
Jim R. Anall:l. J.R. AnaJh EA Servi €s
Post Office Box 103 Gallup, New Mexic 87305
lvfr. Ana.lla,
The Na'Tajo Nation epartmrnt of Fish and Wildlife (NNDFW) reviewed the proposed Shush Be Toh 1 ILf: AC Sob. P:u:!s; Project located in thc IyanbiLo Chapter, approxitnately 12 miles east of Gallup, New Me.uco The purpose of this letter is to iniaml you that we are granting the pwposed proJect a Conditiona Approv:U. The project is approved with the following conditions;
(1] All grading and lonsttuctlon activities :lhould be timed to avoid the MigAatory Bird breeding season of 1 MAR-~5AUG. In the event that grading and construction activities cmnot ll.void the breeding season, s eys must pJ:ecede those activities. ff 2Jl active nest u di:lcovered within 50 m (165 ft) of the proje area, a nest take permit must be obra.ined from the U.S. Fish llnd Wildlife Service for the rem val of the nest, e:ggs, and/or nestlingli to be raised artificially in a federally permitted migra.rory ird rehabilitation facility. The nest, eggs, -and/or nestlings must be removed by a federally petmitted "gtatory bird IclJabilitator.
r21 The project site s within a fulptor Sensitive Area (RSA). All propo~cd pOWCL lines mw;t oe constrUcted with a ta tor-safe power pole design per Raptor Electrocution Prevention Re~tions
(REPR).
Please cootact mc at 28-871-7065 with any questions that you have concerning the review of this
p.coject. I Sincerely,
E
Gloria rom, Direct r Navaio Nation DeD rtment of Fish and Wildlife
:<;c: CONS-100-11 8lA
A Cultural Resources Inventory Of
Two Tracts in the Shush Be Toh Industrial Park For the
Project Development Department In
Iyanbito, McKinley County, New Mexico (NNAO-07-079) July 10, 2007
A CUltural Resources Inventory ofTwo Tracts in the Shush Be Tob Industrial Park for the PJ-oject
Development Department in lyanbito Chapter, McKinley County, New Mexico
NNAD 07-079'
Prepared by Julia M. Chavez
Submitted by Robert M. Begay, M~A~ Department Manager
Navajo Nation Archaeology Department P.O. Box 689
Window Roc14 Arizon;!! 865] 5
Tribal Permit No. NTC
Submitted to Alan S. Downer, Ph.D•• Department Manager
Navajo Nation Historic Preservation Department P.O. Box 689
Window Rock. Arizona. 86515
Prepared for Sharlene Begay-Platero, Industrial Deve;lopment Representative
Project Development Department P.O. Box 663
Window Rock, Arizona 86515
Submitted July 10, 2007
Abstract
The following report is submitted to the Navajo Nation Historic Preservation Department for review as part of the archaeological compliance process. The report, en.titled A Cultural Resources Inventory ofTwo Tracts in the Shush Be Toh Industrial Parkfor the Project Development Department. in Iyanbito. McKinley County. New Mexico (NNAD 07-079), details the results of the project undertaken at the request of the Navajo Nation Division of Economic Development, Proje:t Development Department. The proposed project includes two tracts of land that will be developed into business site locations. Types of ground disturbance expected to result from constntction of buildings, roads. and utilities will involve blading, trenching. and backfilling with heavy equipment. Surfuce and subsurface disturbance will be both intensive and extensive. The project area is located adjacent to and north of the Atchison Topeka and Santa Fe Railroad right-of-way corridor in lyanbito Chapter, east of Gallup, McKinley County, New Mexico. The legal description for the project area is Township 15 North, Range 16 West, NMPM. The project area can be found on the Church Rock, N. Mex~ 1963 (photorevised 1979), 7.5 minute series USGS map. The total number of acres for this block smvey project is approximately 326 acres (132 hal. In all. 1 archaeological site. 19 isolated occurrences (las), and 1 in-use area (TIJA) were identified during the course of the survey. NM-Q-29-165 is the only identified resource recommended as eligible for nomination to the National Register of HiStoric Places. The site is thought to be Register eligible under criterion d. Provided that the stipUlations for the avoidance of effects at the site are adhered to as detailed in the report, a determination of no historic properties affected is recommended for the proposed. undertaking.
A Culturnl ~esources Inventory of Two Tracts in the Shush Be Toh Industrial Parle May 31-June 7, 2007 for ~e Project Development Department in lyanbIto, McKinley County, New MeXIco
6. REPORT DATE AUTHOR(S): Julia M. Chavez June 29,2007
7. CONSULTANT NAME AND ADDRESS: 8. Permit No. Gen'l Charge: Robert M. Begay. M.A. NTCargo Name: Navajo Nation Archaeology Department Org. Address: P. O. Box 689
10. SPONSOR NAME AND ADDRESS: II. SPONSOR PROJECT NO. Ind. Responsible: Sharlene Begay-Platero N!A arg. Name: Project Development Department argo Address: P.O. Box 663
12. AREA OF EFFECT: 326 acresl132 haWindow Rock.. AZ 865 I5 AREA SURVEYED: 326 acresl132 ha Phone: (505) R63--6400
lJ. LOCATION (MAP A1TACHED): a. Chapters: lyanbito e. Land Status: Tribal Trust b. Agency; Eastern ( UTM Center. See report c. County: McKinley g. Area: TlSN. Rl6W (unplatted sections); NMPM d. Slate: New Merico h. 7.5' Map Name(s): Church Rock. N.Mex.. 1963 (Photorevised 1979)
14. REPORT /XI OR SUMMARY (REPORT ATTACHED)!! a. Description ofUnderlaking: The Project Development Department is proposing to develop business site lots within the Shush
Be Toll Industrial Park. The area of potentia] effi=ct equals approximately 326 acres (132 hal. Ground disturbllllce, both surfuce and subsurfuce. will be extensive.
b. Exillting Data Review: A check ofNavajo Nation Historic Preservation Department and NMCRIS archival records indicated that four archaeological projects have been conducted within a SOO-fuot (152-m) radius of the project area. The records revealed two previously recorded sites. NM-Q-29-81 and LA 2962, located within or near the projcct area.
c. Area Environmental & Cultural Setting; The project is located in lyanbito Chapter. The nearest drainage is an unnamed tributary of South Fork Rio Puerco River. located within the project area. The elevation of the area ranges from 6700 feet (2043 m) to 6ROO fuet (2073 m). Vegetation includes saltbush, rabbil:brosh, snakeweed, Russian thistle. prickly pear cactus. and vanous annuals. TIle cultural setting is rural and includes scattered homes. two-track roads, a portion of the Atchison Topeka and Santa Fe railroad right-of-way. and Interstate 40.
d. Field Methods: The archaeological survey was conducted by four NNAD archaeologists and 11 TCP interview with a local resident was conducted by lulia Chavez. A Class III pedestrian surve~ was conducted by walking paralIcl transects spaced 15 m (50 tt) apart extending across the proposed Tracts [ and 2. The total area surveyed equals approximately 326 acres (132 hal·
IS. CULTURAL RESOURCE FINDINGS: One archaeological site. 19 isolated occurrences (IO). and I in-use area (IVA) were encountered during project NNAD 07-079. Site NM-Q-Z9- J65 is an Anasazi specialized activity area--artifilct clmcentration and sandstone scatter and a 1970s trash scatter. The site is a Register-eligible propeny. The IUA is a I997-present homestead. The lOs and IUA do not meet all of the criteria necessary to be considered Register eligible. and thus they appear not to represent Register-eligible properties.
16. MANAGEMENf SUMMARY (RECOMM-ENDATIONS): Provided that the stipulations for the avoidance of effects at site NM-Q-29-l65 are adhered to as detailed in the report, a detennination oEno histonc properties affected is recommended for the proposed undertaking.
._~..~2A . n , ..', 1 --·-··--····_,··--_····-··-··-·-·-;~:r;,·;;ji!-····
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Figure 2. Vicinity map showing the location of the projeet area and identified cultural resources. Church Rock, N. MCfi., 1963 (PhotorcYi~ed 1979) 'lOd fort Wingilte, N. Mex., 1995; 7.5' series USGS maps; T,15N, R.16W, NMPM (NNAD 07-079).
Cultural Resources Compliance Form NNHPD NO. HPD-07-642
CULTURAL RESOURCES CO;~IlANCE FORM IDSTORIC PRESERVATION DEPARTMENT
PO BOX 495C: WINDOW ROCK, ARIZONA 86515
ROUTING: COPIES TO NNHPD NO. HPD-07-642NM SHPO OTHER PROJECT NO.REAL PROPERTY MGT/330
NNAD NNAD 07-079
PRC?JECT TI'ILE: A Cultural Resources Inventory of Two Tracts in the Shush Be Toh Industrial Park for theProJect Development DeP2rtment in lyanbito, McKinley Coun1y. New Mexico
LEAD AGENCY: BIAINR
SPONSOR: Sharlene Begay-Platero, Project Development Dep~1I1me.nt, PO Box 663, Wmdow Rock., AZ 86515
PR<?JEC! D~C.RJ!TI0!'l:.The proposed undertaking will invc·lve the development of two tracts of land inro busmesS/llldustrial SItes WIthin ~ Shush ~e Toh Industrial Park. Tract 1 measures 16L92-acres, Tract 2 measures 164.67-acres. The ~ of effect 15 approximately 326-acres. GrolIDd disturbance will be intensive and extensive with the use of heavy eqmpment.
LAND STATUS: Tribal Trust CHAPTER: Iyanbito LOCATION: Unplatted & Projected Tl5N, Rl6W; Church Rock Quadrangle McKinley County New Mexico
~M - "
PROJECT ARCHAEOLOGIST: .Julia M. Chavez NAVAJO ANTIQUITIES PERMIT NO.: NTC
DATE INSPECTED: May 31. 2007 to June 07. 2007 DATE OF REPORT: June 29, 2007 TOTAL ACREAGE lNSPECTED: 326.0 ac
METHOD OF INVESTIGATION: Class ill pedestrian invenrory with transects spaced 15 m apart.
uS'!' OF CULTURAL RESOURCES FOUND: (1) Site NM-Q-29-165 (Component 1), (19) Isolated Occurrences (10), (1) In-Use Area (IUA)
LIST OF ELIGffiLE PROPERTIES: (1) Site NM-Q-29-16S (Component 1) UST OF NON-ELIGIBLE PROPERTIES: Site NM-Q-29-165 (Component 2), (19) 10, (1) IUA LIST OF ARCHAEOLOGICAL RESOURCES: (1) Site N]1,f-Q-29-16S (Component 1)
EFFECT/CONDmONS OF COMPLIANCE: No historic propertks will be affected with the fonowing conditions:
Site NM-Q-19-165 (Component 1): 1. Site boundary will be flagged & temporarily fenced by a qualified archaeologist prior to ground disturbing activities. 2. Site will be avoided by all construction 3ctivities by a minimmn of SO-ft from site boundary. Or 1. If site cannot be avoided, a nature an extent testing plan & if necessary a data recovery plan will be implemented in consultation with the Navajo Nation Historic l'reservation Department. The plan must be consistent with the Navajo Nation Polices & Procedures, and be approved by NNHPD. .
In the event of a discovery [Wdiscovery· meaDS any previously unideIJti:fied or incorrectly identified cultural resources including but not limited to archaeological deposits, hmnan remains, or locations reportedly associated wiLh Native A.n:Ierican religious/traditional beliefs orprnctices], all operations in roe iuunecHare vicinity ofthe discovery mustcease, and the Navajo Nation Historic Preservation Department must be nOJ:i:fied at (928) -871-7148.
FORM PREPARED BY: TAMARA BILLIE
FINALIZED: July 26. 2fXJJ
Notification to Proceed Recommended: Conditions: ~:g%:== ~~~~ ~~ervationOfficer
~ ,I ~~~. Navajo Region ArI0vt1\()'I Yes ~ No __ .
t\\'0~\V· Acfjn~egiona1 Director
EXHIBIT -,
I "~. illi~ "'... j
Correspondence Shush Be Toh Solar PV Project Site Church Rock, McKinley County, NM
Navajo Nation Natural Heritage Program Department of Fish and 'Wildlife
07 July 2011
NN Biological Resource Land Clearance Policies and Procedures
- , .... -. -
07July 2011 Fi!c/;!J]fRAE06
jim R. AnaUa ] .R. Analia EA Services r.o. Box 1034
Gallup, NM 87305
SUBJECT: SHUSH BE TOH SOLAR PV PROJECT SITE LEGAL DESCRIPTION SECTIONS 21 &: 22; nSN. Rl6'vV. NMP?v1 CHURCH ROCK, 0.'1cKINLEY COCl'nI'. NM
\U-. Analia
The following information on species of concern! is provided in response co your 20 june 2011 requesr concerning rhe subject project, which consists of the Shush Be Toh I liC 20 MW Solar PV Project consisting of developing a solar park facilir)' to convert naruraI sunlight into pure electriCity to be distributed for use on the Navajo Nation &: surrounding area. I~he legal descriprion of the project site is Sections 21 &: 22: Tl5N, R16W. NMPM. Church Rock \'[cKinler County, NM.
Species of concern knOV\'Il W occur on or near rhe project site(s:, include: 1. Aquila chrysaetos (Golden Eagle); NESL group 3; [\tIBTA; EPA.
Known to occur within three miles of the project site: 1. ~/[ustela nigripes (Black-footed Ferret); i'\ESL group 2; ESA endangered.
Species ofconcem with potential to occur on the 7.5-minute Church Rod<, iWtI! quadrangle(s) containing the project boundaries include the following. Potential is ba~ied primarily on quadrangle-wide coarse habitat characteristics and species range information. Your pmject biologist should determine habitat sUicabilicy at the project site(s). 1. Buceo regaJis (Ferruginous Hawk); NESL group 3; ;vlBTA. 2. Characlrius montanus (Mountain Plover); NESL group 4; e;A proposed threatened; ivlBTA 3. Empidonax aaillii e..'Xdmus (SouthwC5tern Willow flycatche:~):NESLgroup 2; ESA endangered; IvIBTA. 4. Falco peregrinus (Peregrine Falcon); NESL group 4: i\/lBTA
;"Species of concem" include protecred, candidate, and Olher rare or otherwise sensitive species, including certain native species and species of economic or cultural significance. For cach species, rhe following tribal and federal staruses are indicated: Navajo Endangered Species List (NESL). federal Endangered Species Act (ESA). Migratory Bird Treaty Acr (MBTA), and Eagle Protection Acr (EPA). No legal prorection is afforded species wirh only ESA candidate or NESL group 4 status; please be aWilre of these species during survcys and inform the NFWD of observations. Documentation thar these species are more numerous or widespread rhan currenrly known, and addressing these species in project planning and managemenr is important for conservation and may contributc ro ensuring they will not be uplisled in the future. Species without ESA or NESL legal proteclion (e.g., NESL gTOup 4 species) are only included in responses 0'1 a regular basis and may not be included in this response. Please refer to the NESL for a list of sroup <I specie<; conract me if you need a COpy.
2
). ~vluste1a nigripes (Black-footed Ferret); NESL group 2; ESA :ndangered. 6. Strix occidentalis lucida (Mexican Sported Owl); NESL group 3; ESA threatened: ;vIBTA. 7. \fulpes macrotis (Kit Fox); NESL group 4.
S. Erigeron acomanus (Acoma Fleabane); l\FESL group 3. 9. EriQeron rhizomarus (Rhizome Fleabane); NESL group 2; ESA threatened. 10. Erigeron sivinskii (Sivinski's Fleabane); NESL group 4. 11. Lesguere1la navajoensis (Navajo Bladderpod); NESL group 4. 12. Puccinellia parishii (Parish's Alkali Grass); NESL group 4.
AREA 3: LOyV SENSITIVITY WILDUFE RESOURCES
Potencial for the black-footed ferret should be evaluated if prairie-dog towns of sufficient size (per NAND guidelines) occur in the project area.
Potential for Puccinellia parishii should be evaluated ifwetland conditions e.x..ists that contain white alkaline cruSts.
Biological surveys need to be conducted during the appropriate season to ensure they are complete and Kcurate please refer to NN Species Accounts.' Further quest..ion~; penaming to SUDrej'S should be referred co Species Account. SUD/eyers on the Navajo Nation must be permitted by the Director, NFVVD. Contact Jeff Cole at (928) 871-7068 for permitting procedures. Questions pertaining to sUD'eys should be directed co the NFWD Zoologist (Chad Smith) for animals at 871-7070 and Botanist (Andrea Hazelton) for plams at (928)523-3211. Questions regarding biological evaluations should be directed to Pamela Kyselka (Acting Environmental Reviewer) at 871-7065.
Potential impacts to wetlands should also be evaluated. The U.S. Fish &: \Nilcllife Service's National Wellands Inventory (j\,TVVl) maps should be examined to deterrn.i.ne whecher areas classified as werlancls are located close enough to the project site(s) to be impacted. In GlSes where tbe maps are inconclusive (e.g.. due to their small scale), field sUD7eys must be completed. For B.e.ld sUD'eys, wetlands identification and delineation methodology comained in the "Corps of Engineers vVetlands Delineation Manual" (Technical Report Y-87-1) should be used. \iVhen weriands are present, potential impacts must be addressed in an environmental assessment and the Army Corps ofEngineers. Phoeni'\: office. must be contacted. f\.l'vVI maps arc available for t:.."Xaminacion at the NHVD's Natural Heritage Program (NHP) office, or may be purchased through the U.S. Geological SUD/ey (order forms are available through the NHP). The NHP has complete coverage of the Navajo Nat..ion, excluding Utah, ac 1:100,000 scale; and coverage at 1:24,000 scale in the southwestern ponion of the Navajo Nacion.
The information i.n this report was identified by the NFV,-,'D's biologists and computerized database, and is based on data avaiJable at the time of this response. If project planning takes more chan cwo (02) years ITom the date of this response, verification of the information proVided herein is strongly recommended. It should not be regarded as the final statement on the occurrence of any species, nor should it subsrirute for on-site sUD'eys. Also, because the NFVVD's infonnation is continually updated. any given infonnarion response is only wholly appropriate for its resEJecnve request.
For a list ofsensitive species on the Navajo Nacion in addit..ion to th~ species listed on the Navajo Endangered Species list (NESL) please tefer to our website ar v"nNw.nndfw.org.
4Available free of charge on our wcbsilC at http://nnhp.navajofishandwildlife.orgJ
3
An invoice for this inIormation is accached.
If you have anv quesDons ! may be reached at (928) 871,6472.
......-:: ~
(
GIQi'ia Nl. To Director lJ~parrment'-;'fFish &: \iVUdlife
Division of Nacural Resources
xc; filelchrono
Biological Resource Land Clearance Policies and Procedures
INTRODUCTION The Resources Committee of the Navajo Nation Council is the legislative oversight of the Division of Natural Resources
that includes the Navajo Nation Department of Fish & Wildlife (NNDFW). It has the responsibility and authority to adopt policies: procedures and regulations that protectthe biological resources of the Navajo Nation. The Resources Committee, by Resolution No. RCMA-34-03 dated MarCh 13,2003. approved the Biological Resource Land Clearance (BRLC} Policies and Procedures prepared by the NNDFW to assist the Navajo Nation govemment and chapters ensure compliance with federal and Navajo laws which protect fish, wildlife species, both plants and animals, and their habitat, resulting in expedited land use 30provals.
The NNDFW;s established. "to conserve. protect, enhance and restore the Navajo Nation's fish. wildlife, plants and their habitat, through aggressive management programs for the spiritual, cullural and material benefit of present and future generations of the Navajo Nation
a After years of research and study, tile NiNDFW has identified and mapped wildlife habitat •
and sensitive areas that cover the entire Navajo Nation. The maps are attached. hereto, as attachment ."p.:. and are incorporated herein by reference. The BRlC Policies and Procedures identify wHdlife/habilat sensitive areas that will assist the Navajo NaUon govemmant and chaplen;; exp~ite the land clearance prot;ess for land withdrawals, rights-of-ways, leases. subleases. assignments. land use pennits and other similar land uses.
The BRLC Policies and Proc:edures will help direct development to areas where impacts to wildlife andlor their habitat will be less significant This should increase certainty in planning and implementation ofprojecis. while ensUriOj~the perpetuation of wildlife resources for present and future generations. The entire Navajl) Nation has been divided into six types of Wildlife areas. These areas provide the framework for planning specific development projects. but site-specific: planning to address wildlife resources will still be necessary. in most cases. This BRlC Policie:i and Procedures explain what restricbons apply in each area and describes the process for the planning and approval of prcjects with respect to wildlife resources.
The following is a briefsummary of six (51 wildlife areas identifierl in attachment -A-: 1.Highly Sensitive Area - recommended little or no development. 2. Moderately Sensitive Area - moderate restrictions on development 3.Low Sensitive Area -least restrictions on development 4.Community Development-areas in and around towns, and.with onl', a few exceptions. there are no biological resources
that nsed to be taken into consideration in planning. However, this is not meant to keep chapters from taking the initiative to develop areas such as parks or nature trails to enhancl~the quality of life for those communities.
5.Biological Preserve- area is off limits to developmenl except devulopment that is compatible with the purpose of this area.
6.Recro..tion:ol_ area is off limits to development except development that is compatlble with the purpose of this area.
Preparation of a Biological Evaluation (BE) is required for developml~ntin any area. except in Area 3 and 4 for individual homesites and related utilities. The BE:
• Is documentation of impacts that a proposed project may have IJn biological resources. • Must consider direct, indirect, short-teffil,. long-term and cumulative impacts and impacts from actions that are dependent on, or are clearly related to the proposed de'lelopmenL
• Must have Department concurrence that the evaluation of impacts to wildlife resoun;es is accurate. • Contains accurate information about the location of the develol=ment. indudlng but not limited to a legal description, distance to landmark, and a map (7.5' USGS topographic Quadrangle).
For information about the contents of a BE. contact NNDFW. Additionally, the Department possesses additional infonnation on wildlife. including biology, distribution. occurrence records. avoidance measures. management recommendations and wildlife law. Project sponsors. including chapter officials, or those working on behalfofa chapter on land-use planning, are encouraged to contact the Department for this information. . . . .
Federal laws for environmental planning and protection apply to all areas when the Federal government IS Involved In
funding, carrying out, or authorizing, in wIlole or In part, proposed 'development These laws include the National Environmental Policy Act, Endangered SpeciesAcl, Eagle Protection Aetand Migratory Bird Treaty Acl Thewl1dlife areas identified herein do not supersede or replace Federal/aw, but can be an important teol in addressing the requirements orthese laws. Federal actions that may affect federally listed species will require consultation with the U.S. Fish and WIldlife Service.
The following is a more detailed description of the six (6) wildlife :3reas. Identified in attachment -A-. which provides an explanation of the applicable restJietlons on development, and desCfibeos the process forthe planning and approval of projects
1
Biological Resource Land CleCirance Polide:, and Procedures wiih respecl to wildlife resources.
AREA 1: HIGHLY SENSITIVE WILDLIFE RESOURCES I his area coniains the best habitat for endangered and rare plant, animal and game species,
and the highest concentrafion of thQSs species on the Navajo Nation. The purpose of this area is to protect these valuable and sensitive biological resources to the maximum extent pradical.
The general rule for this area is no development. Restricted development is allowable only if the following criteria are met. .~II development requires the praparation of a BE. An acceptable BE must fully consider alternatives to the proposed development, and provide a compelling reason (0 develop in this area.
Criteria for Allowable Develooment A. ResidentiaUbusiness development is allowed within Area 1 ii it is:
1.Not within or close enough to the habitat to cause significant impacts 2. Located on ltle perimeter of the area
a) If not on the perimeter, there must be no reasonable alternatives 3. Located within 1/8 mile of similar development
B. Other types of development are allowed in Area 1 if:
1. It is not within or close enough to habitat to cause significant impacts 2. There are no reasonable alternatives outside the area
Process for planning and aooroval of develooment A. Project Sponsor requests infonnation on rare and endangered species, specific to the proposed development, from
the Navajo Natural Hernage Program B. Project Sponsor meets with ltle Department to explore alternatives for development C. Project Sponsor, or their consultant. prepares a BE for the pro posed development D. Department reviews the BE mdetermine if impacts to wildlife resources are accuratelyaS$essed, Impacts that can
not be avoided are reasonably mitigated, and that no other reclsonable alternatives exist E. Department issues a letter, to the Project Sponsor, either concurring or not concurring with the BE based on the·
review F. The Department letter must be part of any project approval application package
2. AREA2: MODERATELY SENSITIVE WILDLIFE RESOURCES This area has a high concentration of rare. endangered, sensitive and game species occurrences or has a high potential far
lhese speCI= to occur throughout the I"'ndscap... The purpose of this ara!:! is to minimize impacts on these species and iheir habitats within Area 2, and to ensure the habitats in Area 1 do not become fragmenteCl.
The rule for this area is that all development be placed to avoid specie,g and their habitat. Avoidance needs to Include an adequate buffer to address/ong-term and cumulative impacts. The buffer distance wJ1l depend on the species and the situation, and may be up to one mile. All development requires the preparation of:3 BE.
Criteria for allowable develooment A. Must not be wiltlin or crose enough to habitat to cause significant impacts
Process for clann;no and approval of develooment A. Project Sponsor requests information on rare and endangered sp€cies. specific to the proposed development, from
the Navajo Natural Heritage Program 3. Project Sponsor, or their consultant. prepares a BE for the pmposed development C. Department reviews the BE to detennine if impacts to wildlife resources are accurately assessed, impacts thaI can
not be avoided are reasonably mitigated, and that no other re'asonable alternatives exist D. Department issues a letter, to the Project Sponsor, either concurring or not concurrtng with the BE based on the
review E. The Department letter must be part of any project approval application package
3. AREA 3: LOW SENSITIVITY WILDLIFE RESOURCES . This area has a low, fragmented concentration of species of concern. Spedes in this area may be locally abundant on
.-----. 2
.~.
. Biological Resource Land Clearance PoliciHS and Procedures 'Islands' of habitat, but islands are relatIvely small, limited in number and well spaced across the landscaoQ
Smal~cale development to seJVe the private needs of incfrviduals. sw:h as homesiteS and service lin; for utilities can proceed wfthoutthe development ofa BE. However, documentation ofilie deVelopmentshaJl be submitted to the NNDFW for l!stiles.
All other development requires preparation of a BE. Any proposed dev!:lopment in this area does not preclude the need to meet the requirements of Federal/aw, as appJicabla
Process for olanning and approval of develooment A. For individual homesifes and related utifItiBS
1. SUbmit homesite documentation to NNDFW, including: a) Location plotted on a 7.S- USGS lopographic quadr.mu1e map or reasonable facsimile
. b) Brief description of project, inducfmg acreage 8. For all other development .
1. ProjectSponsor requests infonnation on rare and endal1£:ered species, specific to the proposed development, from the Navajo Natural Heritage ProglClm
2. Project Sponsor, or their consultant. prepares a BE for th,~ proposed development 3. Department reviews the BE to determine if impaGts to wih11ife resources are accurately assessed, impacts
that cannot be avoided are reasonably mrtigated, and that no other reasonable alternatives exist 4. Department issues a letfer, to 1ha Project Sponsor. either concuning or not concuning with the BE based
on the review 5. The Department letter must be part of any project appmv,al applIcation package
4. AREA 4: COMMUNITY DEVELOPMENT The Departme.irt: has determined thatareas around cer1ain communities do notsUJJpoft the habitatfor species ofconcern
and1hereforedevelopmentcan proceed wfI:houtfurtherbiological evaluation. This appfleSto aU developmentexceptthat whic:h may have significant impacts outside the community. An example of this is industrial developmentthat may impactairorwater . quality. For certain communities, there are exceptions where one or two species have the pOtential to occur. For these exceptions, the biological evaluation need only address that one or two species, and be submitted to the Department for approval
SmaJl-5caIe development to seNe1he private needs of in<.ividuaIs. stlch as homasJtes and sesvice lines for ublffies. can proceed wilhoutthedevelopmentofa BE. However, documenta1ipn ofthe devek>pmernshaft besubmitted to the NNDFW for its files.
Process for pJanning and aop.roval of develoP!'neJJ1: A. For inolVidual hoinesites and mIated utm:fies
1. Submit homesite doctJmentation to Department, .inc:IIlcfin!1: a) Location plotted on a 7.s USGS topograPhic quadrangle niap or- reasonable fat:Simile b) Brief description of project, induding aaeage
s. For alf other deveJopment 1. Project Sponsor requests infomlation on rare and endangered species. specific to the proposed
development, from 1he Navajo Natural Heritage Program 2. For responses that do not list any wildlife resources the JIfOCeSS is complete 3. For responses that fISt wildflfa resources
a) ProjedSponsor. ortheii consultant, prepares a BE ftl.the proposed devek>pment b} Departmentraviews the BE10 determine ifimpacfs to lvikffife resources ateaccurate!yassessed, impacts
that cannot be avoided are reasonably mitigated. and that no other reasonable alternatiVes exist G) Department issues a Iettef", to tlle Project SponsoI". either COJlCl.IJJing ornot (;Of1cuning with the BE based-
on the mview . d) The Department letter must be part of any project approval appflCafioo package
5. AREA 5: BIOLOGICAL PRESERVE _ l1lese areas contaln exceJIent. 01" potentially excellent, widIife tJabj,lat and are recommended by the ~epartment ror
protection from most I1tJJnaIl-reJat activffies. and in Some cases are Je(;(){lIJJeflded fbi" entmncement- On~a few of.thes: areas have been developed. to date. Future areas will be identified tot- Each chapter on a case-tJy-case basis. A vane1y or
3
Biological Resource Land Clearance Policids and Procedures protection and Emhancement techniques are available, and the Departmen!i is interested in working with.the chapter and landuser io proteetlenhance these habitats by providing technical assistance, i3/.,d possibly malenals and labor. The Department is interested in receiving proposals from chapters and land-useffi for these types of areas. Ultimately, the Departmentmaintains the autllOftty for designating and managing biological preserves. However, the Department may delegate certain management responsibilities to the local level, under Department oversighl Any development within this area must be compalJble with the purpose of. the managemeni plan for the area.
Process for planning and aopmvaJ of develOpment A. Project Sponsor rEquests information from the Department on the purpose ofthe area. and the management plan,
if available 8. Project SponSQr meets with the Department to explore altematives for development C. Project Sponsor. or their consultant, prepares a BE for the proposed development D. Department reviews the BE to determine if the proposed project is compatible with the purpose of the
area, impae1s to wildlife resources are accurately assessed, impacts that cannot be avoided are reasonably mitigated. and that no other reasonable alternatives exist
E. Department issues a letter, to the Project Sponsor, efiher concurring ornot concurring with the BE based on the review
F. The Department letter must be part of any project approval appflCation package
6. AREA 6: RECREATIONAL These areas are used for recreation that involves wiIdll1'e, or have pcftBoliai for develOPment forihis purpose.. Recreation
can involve consumptive and/or non-amsump1ive uses of wtldrlfe re:murces. and is often a part of a broader outdoor experience. Examples indude iishing lakes. camping and picnic areas and hiking trails. Sev~ral areas have been identified as Recreation Areas. Future areas will be identified for each chapter 011 a case-i:ly-case basis. A vanely of manag~ent
techniques are available, and the Department.is inlElrested in working willi the chapterand land-userto develop and/ormanage these areas. The Department is also interested In receiving proposals from chapters and land-users for1hese types of areas. Ultimately. the DepaJtrnent maintalns the authoIity for designating and managing recreational areas that involve wildlife. However, the Department may defegate certain management re5pot1Sl1lilifies to the local revel. under Department ovefSight The Department encourages chaptern to plan development In this area compatible wiIh purpose. for example nature lTails, interpretive displays and picnic areas.
Process jar planning and approval of development A. Project Sponsor requests information from the Department on the pUlpOse of the area, and the
fTJ8nCIg..ment pl:an, if avai/ablG 8. Project Sponsor meets with the Department 10 explore alhmatives for devalOpment . C_ Project Sponsor. or their consultant, prepares a BE for thu proposed development D. Department reviews the BE to determine if the proposed project Iscompatfble with the purpose of the
area, Impacts to wikffife resources are accurately assessed, impacts that can not be avoided are raaSQnaDly mitigated, and that no other reason<ibIe attematives exist
E. Department issues a letter. to the Project Sponsor. either ,:oocurrfng ornot concurring with the BE based on the review
F. The Department letter must be part of any project approval application package
4
Biological Resources Compliance Form NNDF & WL Review No. IlJRAE06
Summary of Compl iance Determinations (i f non-NEPA environmental review process)
I. Historic Preservation
2. Fish and Wildlife
J. Navajo Environmental Protection Agency
Summary of Compliance with Environmental Laws: Supporting documentation for the following determinations are found in An Environmental Investigation Report for the Shush 8e Toh Solar Park - EAS-1105. December 2011 attached to this Environmental Summary. The J26.59-acre± tract is located in Iyanbito Chapter 12 miles east of Gallup, New Mexico.
l. National Historic Preservation: In compliance with National Historic Preservation Act of 1988, as amended, Section 106 consultation and 26 CFR 800.9 (b). The Navajo Nation Archaeology Department (NNAD) conducted an archaeological inventory and cultural resource survey for the Shush Be Toh Industrial Park (SBT!P). Approximately 326acres were inventoried. The inventory was (he subject of the final report A Cultural Resources Inventor v of Two Tracts in the Shush Be Toh Industrial Park [or the Project Development Department in Ivanbito, .\1cKinley Countv, New Mexico rNNrlD-07-()79). A Cultural Resource Compliance Form (HPD-07-6-12) was issued tor this undertaking. An Environmental Investigation Report [or the Shush Be Toh Industrial Park - E.4S-1 W5, August lOll: Section III. Description ot'the Affected Environment, E. Cultural Resources, Historic Preservation (36 CFR Part 800/). Site NM-Q-29-165 needs to be nagged and monitored bv a qualified archaeologist prior to ground disturbing activities*.
'} Floodplain Management: The Navajo Nation has not been included in the National Flood Insurance Program (NFIP) and there are no Iloodplain maps published which identify Special Flood Hazard Areas (SFHA) on the Navajo Nation. The proposed SBTSP site is well above any IDO-veal' flood plains. The SBTSP site is not subject to flooding . .-1n Environmental Investigation Report for the Shush Be Toh Solar Park: Section III. Description o(the .-1f{ected Environment. 8. !Vater Resources. a. Floodplain Alanagement [Er:eclilive Order 119887).
3. Wetlands Protection: Potential impacts to wetlands bv the proposed undertaking have been evaluated in accordance with Etecutive Order 11990. None of the jurisdictional wetlands characteristics as delined by the U. S. Fish and Wildlife Service and the U. S. Armv Corps of Engineers are present at the GEC tract. The soils at the SBTSP are not hvdric soils as defined in .-1 D-.-1 I 7673../, Corps o( Engineers Wetlands Delineation ,l1anual, Jan 87 (,-1n Environmental Investigation Report tOr the Shush Be Toh Solar Park and Centralized Range Residue Recve/in'S Facilitv (CRJF). Section IV Environmental Consequences of the Proposed Action and .\Iitigation Measures, B Water Resources, c. Wetland Protection [Er:ecutive Order 1199011.
~. Endangered Spel:ies Act: The Navajo Nation Natural Heritage Program (NNNHP), Navajo Fish and Wildlik~ Department (NFWD) were l:onsllltcd regarding the dfeet of the development and use of the CR3F tract on federally listed threatened or endangered species: or anv triballv listed spel:ies or other species of l:oncern. It has been determined that, with conditions specitied. the development and lise of the SBTSI' is not expected to affect anv federally listed threatened or endangered species: or any tribally listed species or other species of concern An Environmenral InvesfigalJon Report lor fhe Shush Be Toll Solar Park and Centrali::ed Range Residue Recvcling Pacilitv fCR3Fj' Section III. Descrtption o( the Affected Environment, D Biotic Resources).
5. Air Quality Ambient air quality may be regarded as good to excellent. that is, near pristine. Primarv pollution in the project area is primarily wind blown dust from loose lopsoil common during limes of high winds and dust Irom vehicular traffic along unimproved roads in the area. The SBTSP site is not in a nonattainment area. an area that exceeds EPA air quality standards for pollutants (An Environmental Investigation Report (or the Shush Be Toh Solar Park: Section III. Description oUlte ..Jlfected Environment. C. .-IiI' Resources.
6. Sole Source Aqui ter: There are no designated sole source aquifers within the Navajo Nation. (..In Environmental Investigation Reporf for the Shush Be Toh Solar Park and: Section III. Description or the Affected Environment, B. /Vater Resources, 1. Ground Water, a. Sole Source Aquifers [-If) CPR 1./91.
7. Abandoned Mine Lands: There are no abandoned mines on the SBTSP site: and no Abandoned Mine Lands (AM L) project funding involved in the CR3F undertaking.
8. Navajo Nations Solid Waste Act: A contract with the local solid waste management contractor will be acquired to dispose of solid waste f!enerated by the development and operations of SBTSP, Petroleum product and solvent wastes generated by SBTSP construction equipment wi II be collected and disposed of in conformance wi th applicable federal and Navajo Nation laws and regulations. (.4n Environmental Investigation Report [or the Shush Be Toh Solar Park: Section !II. Description ofthe Affected Environment, G. Resource and Land Use Pal/ems, J Solid Waste a. Solid Waste b Ha::ardo/lS Waste.
I certify that the Environmental Review Process and the Compliance Determination Process in good faith has een complied with:**
DATE: January 18, 2012---\:--'hr--:"""'=-"'-,L----:;;oo_"'Ik:.------Enviro ental Reviewer Division of Economic Deve opment
**In reference to the Navajo Nation Environmental Protection Agency (NNEPA) memo dated January 13,2012, please adhere to NNEPA's recommended 8 mitigation measures stated in the written correspondent regarding the proposed Shush Be Toh 1 LLC AC Solar Park Project.
EGISLt TIVE BRANCH :IOND 8LE /OHNNY NAIZE V V /0 NATION lpeaker, 22 nd Vuvafo Nation Council
October 22, 2012
MEMORANDUM
TO {-{ol/omble Memben lZcsources & Development Committee Naabik'ivati Comrruttce Navajo Nation Council
i
FROM
SUBJECT ASSIGNMENT OF LEGISLATION
Pursuant to 2 N.N.c:. § 164 (1\)(4), this memorandum serves to mform and advise you that r assign the following legislation to the Resources and Development Committee, Naabik'iyati Committee and the Navajo Nation Council;
Legislation No. 0457-12
RELATING TO RESOURCES AND DEVELOPMENT; NAABIKIYATI' COMMITTEE: GRANTING FINAL APPROVAL TO THE ENERGY DEVELOPMENT AGREEMENT BETWEEN THE NAVAJO NATION AND NABEEHO' POWER. L.L.c.
,\s the Committee assigned to consider the legislation, Legislation No. 0457-12 must be placed on rhe Resources and Development Committee, Naabik'iyati Committee, and the Navajo Nation Council's agenda at the next regular meetlng for fInal conSIderation.
;\TfACHMENT: Legislation No. 0457-12
xc: Hon. Ben Shel.ly., President The Navajo Nation
Harrison Tsosle, Attomey General \[ark Grant, Con/roller Honorable Charles Damon, Counci] Delegate (Prime Sponsor)
JFFfCE OF TIfE SPJ::.IKER I V-I" va .V.., nov Lt:GISL I Til E BR.I.\CI/ J j)OST OFFrCE flO.\' ]3'}/); IJo/\DOW ROCK. IRIZOV4 ,y651 •EL PHONE /1)18) 8i1- -fM) F l. ',')181 ,j7l- ~~55
-----
10 r ,. ;:Jl;' I )[lI"I°;#t
MEMORANDUM
TO: Charles Damon, Delegate 22nd Navajo Nation Council
.," ."
- '--' --6 _ " _ I,FROM:
DATE: October 22. 2012
SUBJECT: RELATrNG TO RESOURCES AND DEVELOPMENT; NAAB1K'iYATI' COMMITTEE: GRANTrNG FrNAL APPROVAL TO THE ENERGY DEVELOPMENT AGREEMENT BETWEEN THE NAVAJO NATION AND NABEEHO' POWER, L.L.c.
As requested, I have prepared the attached proposed resolution. Please review the proposed resolution. If this legislation is acceptable to you. please attach the exhibits, sign the proposed resolution under the language "rNTRODUCED BY" and submit it to the Office of Legislative Services where it will be given a tracking number and submitted to the Speaker of the Navajo Nation Council tor his assignment. If the proposed resolution is unacceptable to you, please contact me at the Office of Legislative Counsel and advise me of the changes which you would like made to the proposed resolution. Please contact me at 928.871.7166 if you need further legal advice or legislative assistance in this maner.
Thank you.
OLe # 12-750-1
THE NAVAJO NATION� LEGISLATIVE BRANCH�
INTERNET PUBLIC REVIEW PUBLICATION�
LEGISLATION NO: 0457-12 SPONSOR: Charles Damon
TITLE: An Action Relating to Resources and Development Committee And Naa'bik'iyati' Committee; Granting Final Approval To The Energy Development Agreement Between The Navajo Nation And Nabeejo' Power, L.L.c.
Date posted: October 22,2012 at 5:45pm
Digital comments may be e-mailed tocomments(cvna ajo-nsn.gov
Written comments may be mailed to:
Executive Director� Office of Legislative Services�
P.O. Box 3390� Window Rock, AZ 86515�
(928) 871-7590�
Comments may be made in the form of chapter resolutions, letters, position papers, etc. Please include your name, position title, address for written comments; a valid e-mail address is required. Anonymous comments will not be included in the Legislation packet.
Please note: This digital copy is bein provided for the benefit of the Navajo Nation chapters and public use. Any political use is prohibited. All written comments received become the property of the Navajo Nation and will be forwarded to the assigned Navajo Nation Council standing committee(s) and/or the Navajo Nation Council for review. Any tampering with public records are punishable by Navajo Nation law pursuant to 17 N.N.C. §374 et. seq.
