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City of Pleasanton—Hidden Canyon Residences and Preserve Draft EIR Biological Resources FirstCarbon Solutions 3.3-13 https://adecinnovations.sharepoint.com/sites/PublicationsSite/Shared Documents/Publications/Client (PN-JN)/2148/21480016/EIR/3 - Draft EIR/21480016 Sec03-03 Bio Resources.docx may use the site infrequently or may forage on the site year-round or during migration. American badger may occur on the site more frequently due to the presence of suitable denning and foraging habitat. Although no burrowing owls have been observed on the site and are presumed absence due to the failure to detect them during numerous surveys from 2014 to 2025. Nonetheless, as burrowing owls are volant species, while unlikely, there is the possibility of the burrowing owl colonizing the site prior to construction activities are initiated on-site. 3.3.5 - Regulatory Framework Federal Endangered Species Act The United States Congress passed the Endangered Species Act in 1973 to protect those species that are endangered or threatened with extinction. The Endangered Species Act is intended to operate in conjunction with the National Environmental Policy Act (NEPA) to help protect the ecosystems upon which endangered and threatened species depend. The Endangered Species Act prohibits the “take ” of endangered or threatened wildlife species. Take is defined to include harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting wildlife species or any attempt to engage in such conduct (16 United States Code [USC] § 1531 et seq.). “Harm” is further defined to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing behavioral patterns (50 Code of Federal Regulations [CFR] § 17.3). “Harass” is defined as actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns (50 CFR § 17.3). Actions that result in take can result in civil or criminal penalties. The Endangered Species Act and the Clean Water Act (CWA) Section 404 guidelines prohibit the issuance of wetland permits for projects that jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species. The USACE must consult with the USFWS and/or the National Marine Fisheries Service (NOAA Fisheries) when threatened or endangered species under their jurisdiction may be affected by a proposed project. In the context of the proposed project, Endangered Species Act consultation would be initiated if development resulted in take of a threatened or endangered species or if issuance of a Section 404 permit or other federal agency action could result in take of an endangered species or adversely modify critical habitat of such a species. Migratory Bird Treaty Act Raptors (birds of prey), migratory birds, and other avian species are protected by a number of State and federal laws. The federal MBTA prohibits the killing, possessing, or trading of migratory birds except in accordance with regulations prescribed by the Secretary of the Interior. Clean Water Act Section 404 The agencies are in receipt of the U.S. Supreme Court’s May 25, 2023 decision in the case of Sackett v. Environmental Protection Agency. In light of this decision, the agencies will interpret the phrase