Defenders of Wildlife Blog

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1 Jac uelyn Barbot From: Sent: To: Subject: on behalf of Defenders of Wildlife Blog > Wednesday, November 13, :06 AM Walter Wright Defenders of Wildlife Blog Defenders of Wildlife Blog It's all adding up in Ivanpah Posted: 12 Nov :26 AM PST Multiple solar energy projects can be too much for one region to handle On the blistering hot, sun-drenched surface, deserts seem like an ideal place for solar energy development. The climate in such regions makes them inhospitable to humans and the arid land is largely unusable for agricultural endeavors. The fragile habitat of the Mojave Desert. But if one looks close enough to see beyond immediately perceptible utilitarian purposes, it becomes quite readily apparent that desert landscapes have much more to offer than simply sun, sand and cracked land. The Mojave, for example, located in southern California and southern Nevada, harbors some of the country's greatest biodiversity. Until the relatively new increase and expansion of renewable energy projects, the Mojave region has remained in largely natural condition. In fact, in a recent study, The Nature Conservancy found that 87 percent of the lands in the Mojave Desert have high conservation value, making them among the least disturbed ecoregions in the U.S. As these study results suggest, despite human intolerance of the climate in the region, many species of wildlife thrive in the extreme temperatures and geographical features that characterize the Mojave. The desert tortoise, horned lizard, Mojave fringe-toed lizard, golden eagle, Mojave ground squirrel, bighorn sheep and several riparian birds are 1

2 just a few of the species (many of them threatened or endangered) that call the Mojave home. Within the Mojave, the Ivanpah Valley has been identified as a critical link between conservation areas for one of the region's most endangered inhabitants, the desert tortoise. At the same time, the Ivanpah Valley is also under mounting pressure from development of many kinds, including such land use impacts as multiple high-acreage renewable energy projects, electricity and gas transmission lines, a wastewater treatment project, airport and a highspeed rail line. Some of the best places for the threatened desert tortoise habitat are also prime for solar energy. The uniqueness of the Mojave and all sensitive desert landscapes comes from a fragile ecosystem balance, a balance that is easily disturbed and hard to recover. So, not surprisingly, all of these current and potential impacts are beginning to add up in Ivanpah, and are causing some real disturbance to the region and its wildlife, especially the desert tortoise. Just last month, the Brightsource Ivanpah Solar Project the first and largest utility-scale solar project on public lands approved by the Obama Administration began its first system tests to deliver power to the grid. The project, which covers some 3,50o acres of public land (more than 2,65o football fields-worth), is projected to cut 13.5 million tons of carbon emissions over 3o years. However, the ultimate cost of the nearly unfathomably large facility, with its 170,000 individual mirrors lassoing the rays of the desert sun into submission, is yet to be determined. Already, The Fish and Wildlife Service's biological opinion has concluded that up to 1136 tortoises (eggs, hatchlings, juveniles, subadults, adults) are or have been impacted on the site (including several deaths). Of these, 173 were found and removed and translocated off-site (a stressful process for the tortoise), including 110 juveniles to holding pens because they were too small to release in the wild. The Bureau of Land Management (BLM) is currently reviewing right-of-way applications for two additional largescale solar energy projects in the Ivanpah Valley: the Silver State South Project in Nevada and the Stateline Solar Farm in California. These projects will impact approximately 2,50o and 1,700 more acres of federal land, respectively, as well as up to 2,115 tortoises, combined. Defenders is protesting the approval of the Silver State South project because it is in a location that supports a significant population of threatened desert tortoises, encompasses high quality habitat, and, most importantly, compromises the most important remaining habitat linkage for the desert tortoise in the Ivanpah Valley. While renewable energy development is key to the future of our country's fossil-fuel free energy independence, it must not and need not come at the expense of the continued existence of wildlife and the integrity of our public 2

3 lands. Proper siting of large-scale projects is critical. A solar power plant can cover several thousand acres, i n (acting threatened species like desert tortoise. In addition to our letter to the BLM protesting the Silver State South project, we have also sent a letter to the Department of the Interior and U.S. Fish and Wildlife Service notifying them of our intent to pursue legal action against the agencies for violating the Endangered Species Act by approving both of these projects in the Ivanpah Valley. Based on the best available science and statements made by the FWS, these two large-scale solar projects will fundamentally undermine that recovery and threaten the very survival of the desert tortoise population. At-risk wildlife and habitats in the Ivanpah Valley have already been lost by decades of land development and human use, and significant threats to what remains are imminent. Thus it is essential that before making decisions about new projects like Silver State and Stateline, the BLM needs to first prepare and implement a landscape-level ecosystem conservation plan for the greater Ivanpah Valley. Such an approach should prioritize ecosystem and species conservation over continued land development, and perhaps give the desert tortoise and other sensitive wildlife in Ivanpah Valley a fighting chance to survive long into the future. Courtney Sexton is a Communications Associate for Defenders of Wildlife The post It's all adding up in Ivanpah appeared first on Defenders of Wildlife Blog. You are subscribed to updates from Defenders of Wildlife Blog To stop receiving these s, you may unsubscribe now. delivery powered by Google Google Inc., 20 West Kinzie, Chicago IL USA

4 Meyer Glitzenstein & Crystal 1601 Connecticut Avenue, N.W. Suite 700 Washington, D.C Katherine A. Meyer Telephone (202) Eric R. Glitzenstein Fax (202) Howard M. Crystal William S. Eubanks II By Certified and Electronic Mail Sally Jewell, Secretary United States Department of the Interior 1849 C Street, N.W. Washington, DC Daniel Ashe, Director United States Fish & Wildlife Service 1849 C Street, N.W. Washington, DC Neil Kornze, Acting Director Bureau of Land Management 1849 C Street, N.W. Washington, DC November 6, 2013 Re: Violations of the Endangered Species Act in Connection With the Biological Opinion for the Stateline Solar and Silver State South Projects (Sept. 30, 2013) Dear Secretary Jewell, Director Ashe, and Acting Director Kornze: We are writing on behalf of Defenders of Wildlife (hereafter "Defenders") to provide notice, pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. 1540(g), that in issuing and relying upon the September 30, 2013 Biological Opinion for the Stateline Solar and Silver State South Projects in San Bernardino County, California and Clark County, Nevada, the U.S. Fish and Wildlife Service ("Service") and the U.S. Bureau of Land Management ("BLM") are violating Sections 7(a)(1) and 7(a)(2) of the ESA and its implementing regulations, id. 1536(a) and other provisions of the ESA, and that, as a result, any take of the threatened Mojave desert tortoise that may occur associated with these projects will also be in violation of ESA Section 9. Id While Defenders wholeheartedly supports the development of renewable energy projects in appropriate locations, that should not occur at the expense of imperiled wildlife and in contravention of the ESA.

5 BACKGROUND A. The Endangered Species Act Recognized as the "most comprehensive legislation for the preservation of endangered species ever enacted by any nation," Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978), the ESA prohibits the "take" of any member of an endangered or threatened species, without appropriate authorization. See 16 U.S.C. 1538(a). "Take" is defined broadly, including to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" listed species. Id. 1532(19); see also 50 C.F.R (defining "harass" and "harm"); Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704 (1995) (explaining that Congress defined "take" in the "broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife") (citations omitted). Where, as here, a private party requires federal authorization for a project that may affect listed species, the permitting agency called the "action agency" must engage in a consultation with the FWS to evaluate the impacts of the project on the species. 16 U.S.C. 1536(a)(2). That consultation must rely on "the best scientific and commercial data available," id. 1536(a)(2), to evaluate those impacts, including the extent to which the project may "take" the species, and must culminate in a Biological Opinion ("Bi-Op") from the Service determining whether the project, considered along with the other activities and threats impacting the species, is, or "is not likely to jeopardize the continued existence of the species, or "result in the destruction or adverse modification of [critical] habitat...." Id. 1536(a)(2). "Jeopardy" is evaluated by considering whether the project "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R Even where a Bi-Op concludes that no jeopardy will occur, it must analyze the extent to which the project will result in the "take" of listed species, including the amount of "incidental take" that will occur, and must include "reasonable and prudent measures" as well as terms and conditions to implement those measures to minimize the extent of the take. 16 U.S.C. 1536(b); 50 C.F.R (i)(1)(i). Take in excess of the incidental take statement is prohibited, and thus once the take authorization is reached the action agency must reinitiate consultation to comply with the Act. While take permitted under a lawful Bi-Op that has been incorporated into a permit issued by the action agency is immune from liability under the ESA, that liability shield does not apply if the Bi-Op is issued in violation of the ESA's strict requirements. Thus, take that may occur pursuant to a Bi-Op found to be unlawful is itself unlawful, 16 U.S.C. 1538, and may be subject to criminal and civil federal enforcement actions, as well as civil actions by citizens for declaratory and injunctive relief See id In addition to these requirements, Section 7(a)(1) of the ESA affirmatively requires federal agencies to utilize their authorities and programs to benefit listed species. Id. 1536(a)(1); Alaska v. Lubchenco, 723 F.3d 1043 (9 th Cir. 2013) (explaining this provision 2

6 requires that agencies "implement programs to conserve the species"); Sierra Club v. Glickman, 156 F.3d 606, 616 (5th Cir.1998) ("Given the plain language of the statute and its legislative history, we conclude that Congress intended to impose an affirmative duty on each federal agency to conserve each of the species listed [and] to achieve this objective, the agencies must consult with [the] FWS as to each of the listed species, not just undertake a generalized consultation."). Likewise, section 4 of the ESA requires that the FWS "shall develop and implement" recovery plans "for the conservation and survival of endangered species and threatened species.." 16 U.S.C. 1533(0(1). B. The Imperiled Desert Tortoise As explained in the species' 2011 Revised Recovery Plan, the distinct Mojave population of the desert tortoise (Gopherus agassizii) (hereafter "Tortoise"), which consists of all tortoises north and west of the Colorado River, faces numerous threats, and preservation of the species' remaining habitat is one of the key recovery actions necessary to protect remaining populations. See Revised Recovery Plan for the Mojave Population of the Desert Tortoise (May 6, 2011) (hereafter "Recovery Plan") (Attachment 1 (Recovery Plan Excerpts)). Unfortunately, as discussed below, the large-scale solar projects at issue here will fundamentally undermine that recovery objective and threaten the very survival of the population. The Tortoise was listed as threatened in Fed. Reg (Apr. 2, 1990). In listing the species the Service noted repeatedly that among the threats facing the species was the ongoing loss of habitat due to, inter alia, "energy projects." E.g. id. ("The Mojave population of the desert tortoise is threatened by loss and degradation of habitat due to construction activities (roads, pipelines, powerlines, housing developments, energy developments)"). As the Service summarized, "habitat is deteriorating and has been lost in many parts of the tortoise's range due to an accelerating rate of human uses of the desert." Id. Of particular concern related to habitat loss was "the fragmentation of remaining populations." Id. at 12,188. As the Service explained: Id. Long-term survival of these isolated pockets will be aggravated by normal random fluctuations in the population or the environment and catastrophic events that could lead to extirpation. Of particular concern with the tortoise is the continued drought that has affected most of its Mojave range over the past several years. The resulting physiological stress caused by poor nutrition can be accentuated by other perturbations in the environment, such as the increased presence of predators, fire, off-highway vehicles, and competition for existing forage. The synergistic effects of these disturbances could result in the complete inability of both individual animals and isolated groups to return to and maintain population levels that are viable on a long-term basis. As further discussed in the Recovery Plan, the species' unique habitat requirements make the continued availability of suitable, unfragmented habitat particularly important. Males may range more than 1.5 square miles in their lifetime, and may make periodic movements of up to 7 3

7 miles at a time. Recovery Plan at 10. The species requires 13 to 20 years to reach sexual maturity and has low reproductive rates over many years. Id. at 32. Because they experience relatively high mortality earlier in life, the Recovery Plan explains that high adult survivorship "is critical to the species' persistence, and the slow growth rate of the population can leave them susceptible to extirpation events in areas where adult survivorship has been reduced." Id. Moreover, as the Recovery Plan further explains: Another factor integral to desert tortoise recovery is maintaining the genetic variability of the species and sufficient ecological heterogeneity within and among populations (Murphy et al. 2007; Hagerty and Tracy 2010). This variation is necessary to allow tortoises to adapt to changes in the environment over time (USFWS 1994a). Finally, because desert tortoises occupy large home ranges, the long-term persistence of extensive, unfragmented habitats is essential for the survival of the species (USFWS 1994a). The loss or degradation of these habitats to urbanization, habitat conversion from frequent wildfire, or other landscape-modifying activities place the desert tortoise at increased risk of extirpation because the tortoise depends on the cover of shrubs and annuals for forage provided by contiguous native vegetation communities. Recovery Plan at 32 (emphasis added). Although the Recovery Plan recognizes certain particularly important conservation areas, the FWS recognized that "activities occurring on lands beyond the boundaries of existing tortoise conservation areas can affect tortoise populations, important linkages between tortoise conservation areas, and the effectiveness of conservation actions occurring within the conservation area boundaries." Id. at 35; id. at 199 ("habitats, populations, and actions outside these areas may also either impact or contribute to recovery of the species... and their importance is in no way diminished."). C. Existing Destruction and Fragmentation of Desert Tortoise Habitat and Corridors, And the Two Additional Large-Scale Solar Projects Proposed Near Primm, Nevada. As discussed in the Recovery Plan, the FWS has faced an enormous number of proposals in recent years to develop renewable energy projects and most frequently large-scale solar projects in Tortoise habitat. As of November 2010, nine solar projects in California and one in Nevada were approved in Tortoise habitat, and seven more were pending approval, in addition to three wind power projects. Recovery Plan at 16. Taken together, these projects would impact over 90,000 acres of the species' remaining habitat, and result in the translocation of over 1,500 Tortoises. Id.; see also id. at 27. As the Recovery Plan emphasized, while the BLM is considering these projects on a case-by-case basis, "potential long-term effects of large-scale energy development fragmenting or isolating desert tortoise conservation areas and cutting off gene flow between these areas have not been evaluated." Id. at 16 (emphasis added). A map reflecting the fragmentation of Tortoise habitat from existing and proposed projects in the Ivanpah Valley is Attached. See Attachment 2. In addition to these projects, as explained in the Bi-Op at issue here, the FWS has also issued Bi-Ops for various military projects removing many more thousands of acres of habitat, 4

8 and translocating hundreds more tortoises. Bi-Op at 27. As the FWS summarized in the current Bi-Op: The incremental effect of the[se] larger actions (i.e., solar development, the expansions of Fort Irwin, and the Marine Corps Air Ground Combat Center) on the desert tortoise is unlikely to be positive, despite the numerous conservation measures that have been (or will be) implemented as part of the actions. The acquisition of private lands as mitigation for most of these actions increases the level of protection afforded these lands; however, these acquisitions do not create new habitat and Federal, State, and privately managed lands remain subject to most of the threats and stresses we discussed previously in this section. Although land managers have been implementing measures to manage these threats, we have been unable, to date, to determine whether the measures have been successful, at least in part because of the low reproductive capacity of the desert tortoise. Therefore, the conversion of habitat into areas that are unsuitable for this species continues the trend of constricting the desert tortoise into a smaller portion of its range. Bi-Op at 28 (emphasis added). Now BLM proposes to grant rights-of-way to allow development of two more large-scale solar projects in the Ivanpah Valley, the Stateline and the Silver State South projects. Silver State North less than a mile east of Primm has already been approved and developed. Bi-Op at 38. Stateline will remove 1,651 more acres of habitat for the Tortoise approximately two miles southwest of Primm, Nevada. Silver State South, a mile east of Primm, will remove an additional 2,388 acres of habitat east of the Silver State North project. Bi-Op at 4; see also Attachment 2 (overlay map of all projects). At both sites the proposal includes installation of Tortoise fencing to exclude the species from the project sites, vegetative removal, and mowing and grading to prepare the area for solar panel installations. Bi-Op at 4. The solar arrays will be 6 to 8 feet off the ground and may be tilted outward. Id. at 7. The FWS estimates that at the Stateline construction site there are approximately 94 larger Tortoises and 853 smaller animals. Bi-Op at 89. The agency estimates that although they will all be taken, most of the large Tortoises will be relocated. Id. Although the FWS states that it will be difficult to monitor the extent of death or mortality, particularly for smaller Tortoises, the Incidental Take Statement authorizes the death or injury of up to three Tortoises from construction activities. Id. at 90. For the translocation program, the Bi-Op authorizes death or wounding to up to two Tortoises. Id. at 91. Finally, the FWS authorizes the take of up to two Tortoises per year during the 30 year life of the project for an additional 60 Tortoises. Id. at 92. With regard to Silver State South, the Service estimates there are 115 large Tortoises and smaller animals. Bi-Op at 93. For that project the FWS authorizes incidental take of up to five Tortoises during construction and an additional two from the translocation process. Id. The Service further authorizes take of up to three additional adult Tortoises per year over 30 years for an additional 90 Tortoises. Id. at 94. 5

9 D. The FWS's Comments that The Silver State South Project Should Not be Approved, and the FWS's Subsequent Bi-Op Ignoring those Comments. In official comments on the Draft EIS for the Silver State South project, FWS urged BLM to reject the project altogether, in light of serious "concern[s] about habitat fragmentation and demographic and genetic isolation of desert tortoise populations within the Ivanpah Valley." November 16, 2012 Comments (Attachment 3). Emphasizing the importance of "maintaining a robust population of desert tortoises within the Ivanpah Valley," and of the habitat link between tortoise conservation areas in California and Nevada, FWS noted that at present the "the desert tortoise population within the Ivanpah Valley is only tenuously connected to the Ivanpah Critical Habitat Unit," and that of the "four potential linkages" remaining, the one that will be further degraded by Silver State South which lies between Silver State North and the Lucy Gray Mountains "is the widest of those linkages and likely the most reliable for continued population connectivity." Id. at 2 (emphasis added). Accordingly, FWS opposed a project that would further constrict that linkage area below the two miles that currently are available between Silver State North and the Lucy Gray Mountains. FWS explained that habitat linkages must be "wide enough to support a diverse age structure and sex ratio within the linkage." Id. at 2. Although noting that a single Tortoise "uses a lifetime utilization area of approximately 1.4 miles wide," the Service emphasized that "imlultiple lifetime utilization areas are necessary for desert tortoises to find mates, reproduce, and maintain populations during years of low habitat quality, periodic fire, and disease outbreaks." Id. (emphasis added). Indeed, FWS explained that in approving the Ivanpah Solar Energy Station the agency had found critical the fact that there would remain a "suitable linkage between the Silver State Project and the Lucy Gray Mountains," id., and that it would undermine the premise for that Bi-Op to allow further degradation of that linkage. Thus, FWS urged that BLM protect a linkage corridor "wide enough to accommodate multiple desert tortoise ranges, spanning up to several times the desert tortoise lifetime utilization area." Id. (emphasis added); see also id. at 5 (the linkage corridor "should be wide enough to accommodate multiple desert tortoise home ranges, spanning up to several times the desert tortoise lifetime utilization areas at the narrowest point"); see also Oct. 20, 2013 letter of Glenn Stewart, Ph.D. (Attachment 4) (reiterating that the corridor is inadequate because "to be effective, a linkage corridor should represent the width of multiple life time home ranges"). Despite these and the many other grave concerns about both the Silver State South and the Stateline solar projects, on September 30, 2013 the FWS issued a Bi-Op for both of these projects purporting to conclude that these projects are not likely to jeopardize the continued existence of the Tortoise. As discussed below, the FWS reaches this conclusion by, inter alia, ignoring its own, and well-recognized experts', assessment of the minimum corridor necessary to protect vital habitat linkages; predicting the success of a translocation program that is likely to kill as many as half of the tortoises moved; and failing to analyze the overall impacts of the many solar projects and other habitat-destroying activities occurring in the species' remaining habitat in the Ivanpah Valley. Moreover, the FWS and the Bureau of Land Management are violating both the species' Recovery Plan (and hence Section 4 of the ESA) and ESA Section 7(a)(1) by failing to prepare and implement a program to adequately protect the remaining 6

10 Tortoise habitat in this area from the death-by-a-thousand cuts that is taking place as projects continue to be approved in the species dwindling remaining habitat. DISCUSSION A. The Stateline and Silver State South Projects Will Further Fragment Desert Tortoise Habitat In Violation of the ESA. There is no dispute, and indeed the Bi-Op itself recognizes, that it is critical to the survival and recovery of the Tortoise that both demographic and genetic connectivity be maintained between the Tortoise populations in Ivanpah Valley and Eldorado Valley. Bi-Op at Adequate corridors are essential to maintaining these connective features. As the FWS explains in the Bi-Op: Id. at 70. The width of the corridor between different habitat area affects the functionality of linkages in that narrower linkages provide less certainty of desert tortoises persisting during years of low resource availability or surviving stochastic events; they may die or move to other areas. The converse is also true. Desert tortoises are more likely to persist in wider linkages because these areas support more habitat of different types, at varying elevations, and with varying weather patterns over time; desert tortoises can more easily recolonize areas where extirpations have occurred if the linkage is larger and source populations are closer. Even without these two new projects, the Bi-Op recognizes that only three of these corridors are even possible in this area. One of these three, West of 1-15, is "almost severed at the present time" due to various existing projects and barriers. The second, between Primm and Silver State North, is only 0.75 miles wide, already heavily disturbed by human activity, and "likely no longer supports a reliable level of connectivity." Bi-Op at 54. This leaves the corridor east of Silver State North, between that solar project and the Lucy Gray Mountains where the Silver State South project is proposed. Bi-Op at 55. As the Bi-Op itself emphasizes, because "[Otis linkage has the lowest level of existing habitat degradation and is wider (approximately 2 miles in the vicinity of the existing solar project)," it "provides the most reliable potential for continued population connectivity throughout the Ivanpah Valley." Id. (emphasis added); see also id at 38 ("the connectivity of desert tortoise habitat is naturally constrained between the steep Lucy Gray Mountains and unvegetated Roach Lake. This constriction is further reduced by the Silver State North Project, the Walter M. 1 Demographically connected populations, particularly where population growth is impacted by immigration and emigration from the area, promote population stability. Bi-Op at 49. Genetic connectivity is the flow of genetic material between populations, where individuals make long-distance movements between populations, and is a function of the size of the populations and the frequency of this movement. Id. 7

11 Higgins Generating Station, an existing railroad, and the portion of Primm that lies east of the freeway."); id. at 69 ("The linkage east of the proposed Silver State South Project has the lowest level of existing habitat degradation and likely provides the most reliable potential for continued population connectivity."). The Silver State South project threatens to destroy this final linkage. In particular, after Silver State south is constructed the linkage between the habitat north and south of the project would be 3.65 miles long and as narrow as 1.39 miles wide. Bi-Op at 69. Although, as noted in the FWS's own comments on the Silver State South Draft EIS, this may be sufficient to accommodate a single lifetime desert tortoise utilization area, multiple such areas are necessary to ensure the continued viability of the corridor. Attachment 3 at 2. Indeed, consistent with the FWS's prior comments which are inexplicably ignored in the Bi-Op the Bi-Op itself acknowledges that "habitat patches for corridor-dwelling species like the desert tortoise" should be large enough to "accommodate multiple home ranges." Id. The Bi-Op further explains that the reason such a wide corridor is necessary is that "strongly territorial species" such as the tortoise "require a minimum corridor width that is substantially larger than the width of a home range" because, otherwise, "in a narrow corridor, an occupied home range that spans the corridor could impede movement by other individuals through the corridor." Id. However, despite this summary of the best available science concerning the minimum habitat corridor necessary for the Tortoise, and the FWS's conclusion in its earlier comments, the Bi-Op goes on to state, in an utter non-sequitur, that, "although desert tortoises are territorial and will fight among themselves, their territories also frequently overlap." Id. On the basis of that unremarkable fact i.e., that although territorial, Tortoises nonetheless come may come into contact with each other the agency purports to conclude that for Silver State South, "although the width of the remaining corridor would be narrower than optimal, territorial desert tortoises are unlikely to block the movement of other desert tortoises through the corridor." Id. The Bi- Op cites no scientific studies, analyses by Tortoise experts, or anything else to support this assertion. The conclusion that a corridor may be reduced to (at most) a single Tortoise home range size not only flies in the face of the best available science and the agency's own prior (and here ignored) views, it simply makes no sense. The minimum required corridor discussed in the agency's prior comments (and by other experts) is not some kind of general requirement for territorial species, subject to an exemption for territorial species whose "territories also frequently overlap." Rather, taking into account the behavioral patterns of the Tortoise, the FWS explained in its earlier comments relying on well-regarded scientific sources that tortoises require a corridor wide enough to "accommodate multiple home ranges." Thus, the agency has certainly not engaged in reasoned decision-making, let alone made a decision grounded in sound scientific principles, in approving the functional destruction of this one remaining corridor by 8

12 allowing it to be reduced to only one home range on the grounds that Tortoise territories overlap. 2 Indeed, while the Bi-Op appears to suggest that such an extremely narrow remaining corridor could be adequate, even the Bi-Op seems to be at war with itself on this issue, concluding that: desert tortoises occupying this narrow linkage area, which would also continue to be affected by the anthropogenic effects occurring in these areas... may be more susceptible to local extirpation than individuals that reside in a larger area of habitat. With the overall number of desert tortoises in the area reduced because of faj stochastic event, individuals may be less likely to find mates, reproduce, and recolonize the linkage areas, particularly if desert tortoises in these areas are subject to ongoing causes of mortality. Bi-Op at 70 (emphasis added); see also Murray, et al. at 11 ("land and wildlife managers should think about 'corridors' between conservation areas that are large enough for resident tortoises to persist and to continue to interact with their neighbors within and outside broad habitat linkages, rather than expect that a more narrow band of habitat will allow an individual tortoise to move through it to the other side, breed with a tortoise on that side) (emphasis added). It also warrants emphasizing in this regard that part of the planned minimization for the project is to translocate approximately 100 large Tortoises into this area east of the project. Bi- Op at 16. This of course makes it even more vital that this area contain sufficient suitable habitat. Indeed, it poses a double threat to the species to not only leave an insufficient habitat corridor, but to translocate tortoises in the project site to that specific area. The translocation of such a large number of adult Tortoises into the remaining habitat east of the project site will also lead to increased social stress, aggression and displacement of Tortoises due to their territorial nature, as noted by FWS in the Bi-Op. On this basis alone the FWS must reconsider its approval of the Silver State South project. The Bi-Op's analysis of habitat fragmentation as it relates to the Stateline Project, where the habitat linkage will be reduced to less than a mile in some areas, and to less than 1.4 miles in others, is similarly flawed. Bi-Op at The FWS notes that due to other projects the population in this area already faces significant threats. Id. The Bi-Op further recognizes that the Stateline project "is likely to promote or exacerbate these effects by reducing the area available to this population and introducing additional mortality sources that may reduce population recruitment or create demographic imbalances," and will "further fragment the small 2 See also, e.g. Murray et al., Conserving Population Linkage for the Mojave Desert Tortoise, 8 Herp. Cons. And Biology 1, 11 (Apr. 30, 2013) (Attachment 5) (reiterating that "minimum widths for corridor dwellers such as the Mojave Desert Tortoise should be substantially larger than a home range diameter" and that while "questions will be asked about what is the minimum width for a particular desert tortoise linkage," this is "analogous to asking an engineer, 'what are the fewest number of rivets that might keep this wing on the airplane?'; rather, "a more appropriate question for conservation is 'what is the narrowest width that is not likely to be regretted after the adjacent area is converted to human use?'"). 9

13 population west of Interstate 15 by constraining, to a limited degree, connectivity between populations east and west of the facility." Bi-Op at 71. However, in the face of all these dire conclusions, the FWS summarily dismisses concerns with habitat linkages in this area as follows: To summarize, the population west of Interstate 15 is nearly isolated from the remainder of desert tortoises in Ivanpah Valley and therefore is more vulnerable to extirpation and genetic deterioration because of existing barriers that greatly reduce the potential for movement. The construction of the Stateline Solar Project would further inhibit, to a limited degree, connectivity in this portion of the valley. Given the existing extensive loss of habitat in this portion of the valley, the overall decrease in the amount of suitable habitat that would result from the proposed action is likely more detrimental to desert tortoises in this area than the reduced connectivity. Bi-Op at 72 (emphasis added). In other words, because the Tortoise habitat near Stateline is already so degraded, and because the Stateline project's most serious impacts will be the further loss of habitat there, there is no obstacle to leaving a habitat linkage corridor that is well below even what the FWS for the first time in this Bi-Op states is the minimum acceptable 1.4 miles. Again, this approach runs afoul of both reasoned decision-making and sound science. The Service's analysis of the impacts that these deficient habitat linkages may have on the species' prospects for recovery is also fundamentally flawed. Bi-Op at After reiterating how critical it is to maintain connectivity between habitat areas, and how connectivity in the area is "currently constrained" even without these new projects, the Service purports to conclude that these projects will not further impair recovery. Id. As regards Stateline, the FWS relies on the same flawed rationale previously mentioned i.e., that while the project will further "reduce connectivity," the existing development in this area has already rendered this habitat "largely isolated," and thus the new project is "not likely to measurably effect connectivity." Bi-Op at 79. As for Silver State South, the Bi-Op reiterates how important this area is for habitat connectivity, and recognizes not only that the project "is likely to reduce connectivity," but that "edge effects may reduce the effective connectivity to less than the measured distance between the project site and Luce Gray Mountains." Bi-Op at 79. Accordingly, the Bi-Op acknowledges, as it must, that the project "is likely to impede recovery of the desert tortoise, at least temporarily." Id. at 80. Nonetheless, over the long-term, the Service purports to conclude that recovery will not be impaired because a USGS study will be investigating genetic changes in the species, and will assess "whether changes in demographic and genetic stability were related to the proposed solar projects." Bi-Op at 80. However, while the USGS may be able to detect these changes, there are two fundamental problems with this approach to assessing species recovery prospects. First, it is impossible to discern how, even assuming the USGS monitoring program will successfully detect these kind of changes, that agency will be able to assess the degree to which those changes are due to these projects as distinguished from other factors. Indeed, since it is inevitable that, in such a circumstance, the companies will be able to point to other factors and, in particular, 10

14 environmental factors such as climate change as playing some role in the species' continued decline, it is entirely meaningless for the Service to declare that if the research reveals "new information with regard to the effects of the Silver State South or Stateline Solar Projects on connectivity," the Service will insist on reopening consultation and "determine an appropriate course of action." Bi-Op at 80. Second, and more fundamentally, this approach eviscerates the entire jeopardy analysis process, which must meaningfully consider the adverse impacts of a project on species' recovery. National Wildlife Federation v. NMFS, 524 F.3d 917, 933 (9th Cir. 2008) ("jeopardy analysis [must] adequately consider the proposed action's impacts on the listed species' chances of recovery"). The Service purports to resolve the acknowledged short-term harm on the species' recovery by claiming that it has arranged for a study of how that harm will play itself out in the long-term, and will take "appropriate action" if things continue in a downward trend without even hinting at what that "appropriate action" might entail. However, since the monitoring itself will not improve the compromised connectivity caused by the project, and the Bi-Op fails to provide any clue as to what might be done to address a corridor that has been irretrievably impaired by a massive solar project, it could hardly be clearer that there is nothing more than "speculation and surmise" behind the Service's assumption that that the long-term adverse impacts of the project on the Tortoise's survival and recovery will be adequately monitored and ameliorated. Bennett v. Spear, 520 U.S. 154, 156 (2008). And "speculation and surmise" is precisely what the Supreme Court has said the FWS may not base a Bi-Op on, particularly where, as here, the best available science points in the opposite direction from the Service's Pollyannish prediction. Id. Indeed, the FWS's determination to roll the dice with the Tortoise's fate and hope for the best also contravenes the most fundamental premises underlying section 7(a)(2) of the ESA. In adopting that provision, "Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as 'institutionalized caution.' Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9 th Cir. 1987) (citing TVA v. Hill, 437 U.S. 153, 194 (1978)); Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1035 (9 th Cir. 2005) ("Placing the burden on the acting agency to prove the action is non-jeopardizing is consistent with the purpose of the ESA and what we have termed its 'institutionalized caution mandate"). Plainly, the high-risk approach adopted by the Service here is the very antithesis of the "institutionalized caution mandate" embodied in section 7. Id. In short, the Service has entirely failed to provide a reasoned, legally supportable explanation concerning whether the projects will impair the species' recovery and contribute to its long-term extinction. See also Bi-Op at 80 (claiming that the remaining corridor and increased management have "the potential to increase the density of desert tortoises in the region to a degree that may mitigate the loss of habitat"; the "monitoring to be conducted by the U.S. Geological Survey should detect changes in demographic and genetic stability; and that "the long generation time of desert tortoises provides the Bureau an opportunity to implement additional management measures, if needed"). 3 3 To the extent the Service's conclusions rely on the Ironwood Consulting report Desert Tortoise Connectivity Assessment Within Ivanpah Valley (2013), another major concern and 11

15 Finally, the Service's effort to use the fact that the Tortoise is long-lived and thus that the long-term monitoring study will detect problems before it is too late as a rationale to allow these projects to go forward turns the ESA on its head. Indeed, elsewhere in the Bi-Op the Service acknowledges that "[t]he species' low reproductive rate, the extended time required for young animals to reach breeding age, and the multitude of threats that continue to confront desert tortoises combine to render its recovery a substantial challenge." Bi-Op at 32. Thus, its long life suggests extra caution in approving projects in its range, not extra license to approve those projects and discern many decades later whether they have jeopardized the species' continued survival and recovery. See, e.g. Murray et al. at 12 ("In areas proposed for essentially permanent habitat conversion, such as by large-scale development, there is the risk that critical linkages will be severed before they are protected (Morrison and Reynolds 2006). For species with long generation times like the Mojave Desert Tortoise, this risk is compounded by the fact that we are not likely to detect a problem with a population until well after we have reduced the habitat below its extinction threshold."). Indeed, the FWS acknowledges that although "the most apparent threats to the desert tortoise are those that result in mortality and permanent habitat loss across large areas, such as urbanization and large-scale renewable energy projects, and those that fragment and degrade habitats," the Service remains "unable to quantify how threats affect desert tortoise populations." Bi-Op at 25 (emphasis added). Once again, especially in the face of this uncertainty the Service should not be approving even more such wide-scale habitat destruction and degradation. E.g. H.R. Conf. Rep. No. 697, 96th Cong., 2d Sess. 12 (1979) (mandating that agencies implement the ESA by giving "the benefit of the doubt to the species"). At minimum, however, the agency's conclusion that the projects will not jeopardize the species which was premised on the adequacy of these remaining habitat corridors is fundamentally flawed. See Bi-Op at 85 ("To summarize, we concluded that the proposed actions are not likely to appreciably diminish reproduction, numbers, or distribution of the desert tortoise in the action area, or to appreciably impede long-term recovery of the desert tortoise. Integral to that conclusion is our expectation that the reduction in the width of habitat east of the Silver State South Project is either unlikely to degrade demographic or genetic stability in Ivanpah Valley or that we will be able to detect degradation of those values and implement remedial actions, if necessary."). 4 inconsistency with section 7's best available science requirement is the inherent conflict-ofinterest in having the project applicant's own consultant prepare a biological report that the FWS relies on in lieu of the agency's own prior determination on the need for multiple home ranges in a corridor. 4 By skirting the serious issues concerning the impact of the project on the corridor, the Bi- Op also avoids confronting whether the project will, as a practical matter, "result in the... adverse modification" of critical habitat for the tortoise. 16 U.S.C. 1536(a)(2). Indeed, because the proposed actions would generally "not occur within the boundaries of critical habitat," the Bi-Op simply "doe[s] not address critical habitat." Bi-Op at 2. However, by allowing a vital corridor that connects with critical habitat to be effectively severed as a biological matter, the project surely is impairing the value of the tortoise's formally designated critical habitat for the survival and recovery of the species. Consequently, FWS and BLM have compounded their violations of section 7(a)(2) by also failing scrutinize how and the extent to 12

16 B. The Service's Decision to Approve the Projects Based on a Fundamentally Flawed Translocation Program Violates Section 7's Best Available Science Standard. A principal minimization strategy proposed in the Bi-Op is to translocate Tortoises located on site. Bi-Op at The Bi-Op estimates there are as many as approximately 200 large Tortoises on the project sites. Bi-Op at 47. The plan thus assumes that as many as 200 Tortoises will be relocated (and as noted above, many will be moved to an area with an insufficient habitat corridor). Although the Service authorizes the incidental take of two Tortoises during translocation, the agency assumes the Tortoises will survive once they arrive at their new location, and thus concludes that "post-translocation survival rates will not significantly differ from that of animals that have not been translocated." Bi-Op at 59 (emphasis added). This conclusion is also fundamentally at odds with the "best available science," 16 U.S.C. 1536(a)(2), concerning the impacts of Tortoise translocation. Indeed, in commenting on the draft EIS for Silver State South FWS itself stated in another comment entirely ignored in the Bi-Op that the agency "does not support translocation as a proven minimization measure for development projects." Attachment 3 at 3 (emphasis added); see also id. ("translocation of desert tortoises could result in considerable effects to both translocated individuals and individuals that are resident to any identified translocation site"). The FWS was right the first time. Thus, for example, when Tortoises were translocated in the Fort Irwin Translocation Area, Dr. Kristin Berry, a leading Tortoise expert who has studied the species for many years, found that within a few years 49% of the translocated tortoises were dead and an additional 23 were missing.5 Not surprisingly, Dr. Berry therefore has expressed serious concerns with these translocation efforts. Id. Even more recently, as discussed in the Bi-Op, when biologists translocated approximately 150 tortoises to make way for a solar project on the Moapa Indian Reservation, more than 10 of them died from predation and heat exhaustion within a few months following the translocation. Bi-Op at 56. These experiences and the Service's own prior conclusions are fundamentally at odds with the Service's unexplained assurance in the Bi-Op that the 200 Tortoises to be translocated to make way for these two projects are no more likely to die in their new homes than where they are right now. Bi-Op at 59. which impacts on the corridor will adversely modify critical habitat by cutting off the ability of tortoises to effectively make use of that habitat. 5 Dr. Berry is a research scientist at the U.S. Geological Survey, Western Ecological Research Center, and has published more than 50 papers and reports based on her intensive studies of Tortoises over the past thirty years. See Statement of Dr. Kristin Berry, Transcript of Aug. 25, 2010 Evidentiary Hearing before the California Energy Commission; see also id. at 79 (discussing results of translocation efforts) (Attachment 6 (excerpts)); see also Progress Report for 2009: Health Status of Translocated Desert Tortoises (Attachment 7) (discussing death of translocated tortoises). 13

17 C. The Bi-Op Violates the ESA by Failing to Address all of The Tortoise Take and Habitat Destruction Already Permitted in this Area. The ESA regulations require that a Bi-Op detail the "environmental baseline," which "included the past and present impacts of all Federal, State, or private actions and other human activities in the action area, [and] the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation." 50 C.F.R ; Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121 (D.D.C. 2001). In determining whether the project under consideration may jeopardize the species, the Service must consider the project's impacts in conjunction with that baseline. Id. The Bi-Op here fails this requirement for two reasons. First, although the Bi-Op lists numerous other consultations that have occurred, it does not even set forth the extent of the "take " that has already been authorized. Thus, for example, in another recent large-scale solar project, the Brightsource Ivanpah Project, the FWS found that the project will result "in the take of numerous tortoises," and, in particular, authorized the take by of up to 1136 Tortoises. See June 10, 2011 Ivanpah Bi-Op at 87. However, while the present Bi-Op mentions the Ivanpah project, noting in particular that in approving the project the Service had expressed "concern that this solar facility would impede connectivity within this portion of the Ivanpah Valley," Bi-Op at 37, the FWS fails to disclose the amount of take authorized there. So too with all the other B i- Ops discussed in the environmental baseline section. Bi-Op at This approach of ignoring the total amount of take of the species that has been authorized violates the ESA. Moreover, although the Bi-Op claims that the jeopardy conclusion took into account all of the other projects fragmenting Tortoise habitat, Bi-Op at 85, no such analysis can be found. This is not surprising, since, as noted, the Bi-Op does not even add up all the take that has previously been authorized, let alone consider that level of take in conjunction with the additional take to occur as a result of these projects. However, absent such an analysis of the overall impacts to the Tortoises' prospects for survival and recovery of both the past and to-be approved projects in the species' habitat, the FWS has not fulfilled its core obligation to determine whether these projects threaten to jeopardize the continued existence of the species. D. FWS and BLM are Violating the Recovery Plan and ESA Sections 4 and 7(a)(1) by Continuing to Approve Projects on a Piecemeal Basis Without a Comprehensive Plan for the Extent to Which These Projects may Harm Desert Tortoise Habitat. When the Recovery Plan was issued, FWS explained that a "cumulative impacts assessment" concerning solar projects "should be conducted and appropriate areas and mitigation measures for this type of activity should be identified." Recovery Plan at 68. Indeed, the Plan provided that the Service would: soon add a renewable energy chapter to the living Plan that will act as a blueprint to allow the Service and our partners to comprehensively address renewable energy development and its relationship to desert tortoise recovery. This supplemental chapter will focus on renewable energy in a manner that could not have been envisioned when Plan revision began. The supplemental renewable energy chapter will make clear what 14