Meyer Glitzenstein & Crystal 1601 Connecticut Avenue, N.W.

Suite 700 Washington, D.C. 20009-1063

November 6, 2013 By Certified and Electronic Mail Sally Jewell, Secretary United States Department of the Interior 1849 C Street, N.W. Washington, DC 20240 Daniel Ashe, Director United States Fish & Wildlife Service 1849 C Street, N.W. Washington, DC 20240 Neil Kornze, Acting Director Bureau of Land Management 1849 C Street, N.W. Washington, DC 20240 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. 1538. 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.

Telephone (202) 588-5206 Fax (202) 588-5049

www.meyerglitz.com

Katherine A. Meyer Eric R. Glitzenstein Howard M. Crystal William S. Eubanks II

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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. 17.3 (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. 402.02. 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. 402.14(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 ESAs 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. 1540. 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 (9th Cir. 2013) (explaining this provision

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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(f)(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 1994. 55 Fed. Reg. 12178 (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 tortoises 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:

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.

Id. 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

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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 thatactivities 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,

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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 1.053 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.

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D. The FWSs Comments that The Silver State South Project Should Not be Approved, and the FWSs 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 [m]ultiple 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

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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 51.1 Adequate corridors are essential to maintaining these connective features. As the FWS explains in the Bi-Op:

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.

Id. at 70. 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 I-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 [t]his 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.

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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 FWSs 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 FWSs 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 FWSs 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 agencys own prior (and here ignored) views, it simply makes no sense. The minimum required corridor discussed in the agencys 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

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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 [a] 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-Ops 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 71-72. 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?).

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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 projects 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 Services analysis of the impacts that these deficient habitat linkages may have on the species prospects for recovery is also fundamentally flawed. Bi-Op at 79-81. 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,

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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 Services assumption that that the long-term adverse impacts of the project on the Tortoises 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 Services Pollyannish prediction. Id.

Indeed, the FWSs determination to roll the dice with the Tortoises 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 (9th Cir. 1987) (citing TVA v. Hill, 437 U.S. 153, 194 (1978)); Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1035 (9th 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 Services conclusions rely on the Ironwood Consulting report Desert Tortoise Connectivity Assessment Within Ivanpah Valley (2013), another major concern and

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Finally, the Services 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 agencys 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 7s best available science requirement is the inherent conflict-of-interest in having the project applicants own consultant prepare a biological report that the FWS relies on in lieu of the agencys 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 tortoises 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

13

B. The Services Decision to Approve the Projects Based on a Fundamentally Flawed

Translocation Program Violates Section 7s Best Available Science Standard. A principal minimization strategy proposed in the Bi-Op is to translocate Tortoises located on site. Bi-Op at 14-20. 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 Services own prior conclusions are fundamentally at odds with the Services 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).

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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. 402.02; 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 projects 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 Bi-Ops discussed in the environmental baseline section. Bi-Op at 34-39. 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

15

recovery implementation will look like in light of renewable energy development and will provide specific recommendations to ensure recovery and continued habitat connectivity in light of such development.

Recovery Plan at (ii)-(iii) (Attachment 1). In addition, one of the Plans specific recovery action is to:

[d]etermine the importance of corridors and physical barriers to desert tortoise distribution and gene flow [in order to] allow population models to be made spatially explicit relative to current land management (e.g., population and habitat fragmentation due to roads, urbanization, and energy development) and potential distributional shifts resulting from climate change.

Recovery Plan at 84 (Id.)

Despite this recognized need for a comprehensive plan to address these projects and their degradation and destruction of Tortoise habitat, no such analysis has been completed. Nonetheless, the Service and BLM are authorizing massive solar (and other highly destructive) projects to fragment, degrade, and ultimately destroy the habitat that the species needs both to survive and, ultimately, recover. As noted previously, in addition to the obligation to avoid jeopardizing species under section 7(a)(2), section 7(a) of the ESA also imposes an obligation on all federal agencies, in consultation with the FWS, to carry[] out programs for the conservation of listed species. 16 U.S.C. 1536(a)(1); see also Pyramid Lake Paiute Tribe of Indians v. Dept of the Navy, 898 F.2d 1410, 1416-17 (9th Cir. 1990) (noting that federal agencies have affirmative obligations to conserve under [S]ection 7(a)(1)). Conserve is defined by the Act to mean recovery, i.e., the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. 16 U.S.C. 1536(a)(1).

Especially where, as here, FWSs formal Recovery Plan for the tortoise declares the need for a comprehensive plan to reconcile the development of large-scale renewable energy projects with tortoise survival and recovery, and yet BLM and the Service are nevertheless authorizing highly destructive projects in the absence of such a plan, the agencies are also in violation of section 7(a)(1) of the Act. By the same token, the Service is certainly not implement[ing] its own Recovery Plan for the tortoise by proceeding in this manner, and hence is also in violation of section 4(f) of the Act. 16 U.S.C. 1533(f)(1) (providing that the Service shall . . . implement plans for the survival and recovery of listed species).

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November 6, 2013 Notice of Violations of the ESA

ATTACHMENT 1

U.S. Fish & Wildlife Service

Revised Recovery Plan for the Mojave Population of the Desert Tortoise (Gopherus agassizii)

Dennis Caldwell

Revised Recovery Plan

for the Mojave Population of the

Desert Tortoise (Gopherus agassizii)

Region 8, Pacific Southwest Region

U.S. Fish and Wildlife Service

Sacramento, California

Approved:

~(

( gOI ( Date:

Preamble to the Desert Tortoise Recovery Plan Revision

The publication of the Final Desert Tortoise Recovery Plan Revision (Plan) is an exciting accomplishment for the U.S. Fish and Wildlife Service (Service) and an important milestone in recovery planning for this species. It represents many years of strategic thinking, productive collaboration, and careful consideration of the concerns of stakeholders. During this time, the Services Desert Tortoise Recovery Office has provided sound guidance and leadership over efforts to revise the Plan through both internal and external dialogue. This included the incorporation of information and feedback from:

The Desert Tortoise Science Advisory Committee Four planning workshops in California and Nevada in Winter and Spring 2007 Two open houses in California and Nevada in Fall 2007 Informal internal and stakeholder reviews of the draft plan revision in 2007 Formal public comments collected following the publication of the draft plan

revision in 2008 Formal peer review comment in 2008 Internal review from the Services Southwest and Mountain-Prairie Regions in

2010

The result is a high-quality blueprint for the recovery of the Mojave population of the desert tortoise. The many individuals involved in this effort, both those providing input and those responding to input, deserve thanks and praise for a job well-done.

Development of the plan has been a dynamic process that has evolved over time. And because land use change and desert tortoise recovery implementation will continue to evolve, the Final Plan is being published as a living document which will similarly evolve in the future. For example, when Plan revision began we did not anticipate the extent to which the landscape of desert ecosystems in the Pacific Southwest might become modified as a result of the nations renewable energy priorities (since 2009, an emphasis on renewable energy has resulted in a large increase in the number of proposed utility-scale projects within the range of the desert tortoise in California). This relatively new emphasis is the result of Presidential, Congressional, and Secretarial priorities. The President has placed a priority on investing in renewable energy in order to put America back in the lead of the global clean energy economy, create millions of jobs over time, and reduce our dependence on foreign fuel. The Presidents New Energy for America Plan sets a target of ensuring that10 percent of electricity will be generated from renewable sources by 2012 and 25 percent of electricity will be generated from renewable sources by 2025. Section 211, of the Energy Policy Act of 2005 provides that the Secretary of the Interior should, within 10 years of enactment of the Act, "seek to have approved non-hydropower renewable energy projects located on the public lands with a generation capacity of at least 10,000 megawatts of electricity". On February 14, 2009, Congress passed the American Recovery and Reinvestment Act which included more than $80 billion to generate renewable energy while creating new, sustainable jobs. And on March 11, 2009, Secretary Salazar issued his first

i

Secretarial Order making the production, development, and delivery of renewable energy a top priority for the department.

In the Plan, renewable energy development is discussed in a number of locations. Discussions under Reasons for Listing and Continuing Threats, Factor A and Appendix A, Section A8 identify the threat of large-scale energy development and the potential impacts to desert tortoises and their habitat. Such impacts could be realized through habitat fragmentation, isolation of desert tortoise conservation areas, and the subsequent possibility of restricted gene flow between these areas. Implementation of a number of the recommended Recovery Actions, as articulated throughout the Plan, would make progress towards reducing threats associated with energy development:

Recovery Action 2.1, Conserve intact desert tortoise habitat - Recommends that solar project facilities be sited outside Desert Wildlife Management Areas and Areas of Critical Environmental Concern, as well as the development of a cumulative impacts assessment to identify mitigation measures for this type of activity.

Recovery Action 2.9, Secure lands/habitat for conservation - Recommends conserving sensitive areas that would connect functional habitat or improve management capability of surrounding areas, such as inholdings within tortoise conservation areas that may be open to renewable energy development.

Recovery Action 2.11, Connect functional habitat - Recommends connecting blocks of desert tortoise habitat, such as tortoise conservation areas, in order to maintain gene flow between populations.

Recovery Action 4.3, Track changes in the quantity and quality of desert tortoise habitat - Recommends quantifying the loss or restoration of habitat as it relates to potential energy and other projects.

Recovery Action 5.5, Determine the importance of corridors and physical barriers to desert tortoise distribution and gene flow - This action, in part, would determine the effects of corridors and barriers like energy development, on desert tortoise movement and recovery.

Similarly, Strategic Element 1 in the Plans Recovery Strategy specifies that activities of implementation teams at the local level will be coordinated with landscape and regional-level alternative-energy coordination efforts.

Still, the plan does not provide a single, comprehensive strategy for addressing renewable energy. To more comprehensively address this threat, the Service will 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 recovery implementation will look like in light of renewable energy development and will provide specific recommendations to ensure recovery and continued

ii

habitat connectivity in light of such development. Given that, strategies for recovery implementation may be modified in the future. The chapter will reconcile recovery efforts with:

Landscape level effects of renewable energy development on the desert tortoise. This includes identifying how such development may contribute to tortoise habitat loss and/or fragmentation.

The role that desert tortoise translocation may play in mitigating potential impacts to desert tortoises as a result of renewable energy development.

Other ongoing conservation strategies that have run parallel to Plan development (for example, the Desert Renewable Energy Conservation Plan, and the Bureau of Land Managements Solar Programmatic Environmental Impact Statement) to ensure that desert tortoise recovery moves forward in a well-coordinated manner.

In the U.S. Fish and Wildlife Service, Pacific Southwest Region, we are firmly committed to ensuring that responsible renewable energy development moves forward in a manner that concurrently addresses both the recovery concerns of desert tortoises and the broader conservation of desert ecosystems in the Pacific Southwest.

Ren Lohoefener Regional Director Pacific Southwest Region U.S. Fish and Wildlife Service

iii

The most complete account of the biology, ecology, and natural history of a population of desert tortoises is that of Woodbury and Hardy (1948), wherein details regarding reproduction, growth and development, longevity, food habits, behavior, movement patterns, and general adaptations to desert conditions are provided for a population on the Beaver Dam Slope of Utah. These characteristics of tortoises do vary with changes in habitat and environment, and further information on the range, biology, and ecology of the desert tortoise is available in Bury (1982), Bury and Germano (1994), Ernst and Lovich (2009), Van Devender (2002c), and collected papers in Chelonian Conservation and Biology (2002, Vol. 4, No. 2), Herpetological Monographs (1994, No. 8), and the Desert Tortoise Council Proceedings.

E. HABITAT CHARACTERISTICS

The desert tortoise occurs in the broadest latitudinal range, climatic regimes, habitats, and biotic regions of any North American tortoise species (Auffenberg and Franz 1978; Bury 1982; Patterson 1982; Bury et al. 1994; Germano 1994). The species occupies a variety of habitats from flats and slopes typically characterized by creosote bush scrub dominated by Larrea tridentata (creosote bush) and Ambrosia dumosa (white bursage) at lower elevations to rocky slopes in blackbrush scrub and juniper woodland ecotones (transition zone) at higher elevations (Germano et al. 1994). Throughout most of the Mojave Desert, tortoises occur most commonly on gently sloping terrain with sandy-gravel soils and where there is sparse cover of low-growing shrubs, which allows establishment of herbaceous (non-woody) plants (Germano et al. 1994; USFWS 1994a). However, surveys at the Nevada Test Site revealed that tortoise sign (e.g., scat, burrows, tracks, shells) was more abundant on upper alluvial fans and low mountain slopes than on the valley bottom (Rautenstrauch and OFarrell 1998). Soils must be friable (easily crumbled) enough for digging burrows, but firm enough so that burrows do not collapse (USFWS 1994a). During the winter, tortoises will opportunistically use burrows of various lengths, deep caves, rock and caliche crevices, or overhangs for cover (Bury et al. 1994).

Records of desert tortoises range from below sea level to an elevation of 2,225 meters (7,300 feet) (Luckenbach 1982). Typical habitat for the desert tortoise in the Mojave Desert has been characterized as creosote bush scrub below 1,677 meters (5,500 feet) in which precipitation ranges from 5 to 20 centimeters (2 to 8 inches), where a diversity of perennial plants is relatively high, and production of ephemerals is high (Luckenbach 1982; Turner 1982; Turner and Brown 1982; Bury et al. 1994; Germano et al. 1994).

The Mojave Desert is relatively rich in winter annuals, which serve as an important food source for the desert tortoise. Tortoises will also forage on perennial grasses, woody perennials, and cacti as well as non-native species such as Bromus rubens (red brome) and Erodium cicutarium (red-stem filaree). Ninety percent of the precipitation that facilitates germination of important forage species for desert tortoise occurs in winter and sometimes in the form of snow (Germano et al. 1994). Tortoises in the eastern Mojave Desert are more likely to be subjected to freezing winter temperatures and prolonged drought than tortoises in the Sonoran Desert and Sinaloan region where freezing temperatures are rare and rainfall is more predictable (Germano 1994).

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The U.S. Geological Survey developed a habitat model for the desert tortoise north and west of the Colorado River using 16 environmental variables such as precipitation, geology, vegetation, and slope (Figure 1) (Nussear et al. 2009). The model is based on desert tortoise occurrence data from sources spanning more than 80 years, especially including data from the 2001 to 2005 range-wide monitoring surveys (USFWS 2006), using 3,753 tortoise presence points to develop the model and 938 points to test the model.

The desert tortoises range, outside the listed Mojave population, extends into the Sonoran Desert, where tortoises occur in the lower Colorado River valley, Arizona uplands, plains of Sonora, and the central Gulf Coast; the species has not been documented in northeastern Baja California (Germano et al. 1994). As in the Mojave Desert, Larrea tridentata is a dominant species in areas occupied by tortoises, although this dominance is tempered by the relatively high abundance of several tree species (Turner and Brown 1982; Germano et al. 1994). In the Sonoran Desert, tortoises tend to inhabit bajadas (slope at the base of a mountain) and

Figure 1. Desert tortoise critical habitat overlaid on the U.S. Geological Survey habitat model (Nussear et al. 2009).

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steep, rocky slopes and are not common in the valleys (Germano 1994; Van Devender 2002a; Averill-Murray and Averill-Murray 2005). Desert tortoises are also found in the Sinaloan thornscrub, which is a transitional habitat between the Sonoran Desert and Sinaloan deciduous forest where the vegetation is dominated by drought-resistant shrubs and deciduous trees. The Sinaloan deciduous forests are differentiated from the thornscrub by taller plants with larger leaves and fewer thorny or succulent species (Germano et al. 1994; Fritts and Jennings 1994).

F. CRITICAL HABITAT

Under section 3 of the Endangered Species Act, critical habitat is defined as the specific areas supporting those physical and biological features that are essential for the conservation of the species and that may require special management considerations or protection (Box 1). The 1994 Recovery Plan identified general areas as proposed Desert Wildlife Management Areas where recovery efforts for the desert tortoise would be focused (Brussard et al. 1994; USFWS 1994a; Box 1). Based on the draft recovery plan, we designated critical habitat in February 1994, encompassing over 2,428,114 hectares (6,000,000 acres) in portions of the Mojave and Colorado deserts (Figure 1; Table 2). This designation includes primarily Federal lands in southwestern Utah, northwestern Arizona, southern Nevada, and southern California (USFWS 1994b).

Primary constituent elements for the desert tortoise are those physical and biological attributes that are necessary for the long-term survival of the species. These elements were identified as sufficient space to support viable populations within each of the six recovery units and to provide for movement, dispersal, and gene flow; sufficient quantity and quality of forage species and the proper soil conditions to provide for the growth of such species; suitable substrates for burrowing, nesting, and overwintering; burrows, caliche (hard layer of subsoil typically containing calcium carbonate) caves, and other shelter sites; sufficient vegetation for shelter from temperature extremes and predators; and habitat protected from disturbance and human-caused mortality (USFWS 1994b).

Table 2. Critical habitat by state and land management in hectares (1 hectare=2.47 acres); data from the Mojave Desert Ecosystem Program.

State Management

Arizona California Nevada Utah Total

Bureau of Land Management 116,835 1,092,675 400,243 38,041 1,647,794 National Park Service 17,968 362,202 42,088 422,258 U.S. Fish and Wildlife 9,308 9,308 Bureau of Reclamation 1,350 1,350 Department of Defense 186,564 186,564 Department of Energy 202 202 Tribal Land 971 971 State Land 2,307 33,590 9,106 45,003 Private Land 1,012 243,221 41,279 4,006 289,518 Total 138,122 1,918,252 494,470 52,124 2,602,968

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Box 1. Glossary of terminology relating to desert tortoise habitat:

Desert Wildlife Management Areas (DWMA) - General areas recommended by the 1994 Recovery Plan within which recovery efforts for the desert tortoise would be concentrated. DWMAs had no specific legal boundaries in the 1994 Recovery Plan. The Bureau of Land Management formalized the general DWMAs from the 1994 Recovery Plan through its planning process and administers them as Areas of Critical Environmental Concern (see below).

Critical Habitat Specific, legally defined areas that are essential for the conservation of the desert tortoise, that support physical and biological features essential for desert tortoise survival, and that may require special management considerations or protection. Critical habitat for the desert tortoise was designated in 1994, largely based on proposed DWMAs in the draft Recovery Plan.

Area of Critical Environmental Concern (ACEC) Specific, legally defined, Bureau of Land Management designation where special management is needed to protect and prevent irreparable damage to important historical, cultural, scenic values, fish and wildlife, and natural resources (in this case, the desert tortoise) or to protect life and safety from natural hazards. Designated critical habitat and ACEC boundaries generally, but not always, coincide along legal boundaries.

G. REASONS FOR LISTING AND CONTINUING THREATS

In determining whether to list, delist, or reclassify (change from endangered to threatened status, or vice versa) a taxon under the Endangered Species Act, we evaluate the role of five factors potentially affecting the species. These factors are:

A) The present or threatened destruction, modification, or curtailment of its habitat or range;

B) overutilization for commercial, recreational, scientific, or educational purposes;

C) disease or predation;

D) the inadequacy of existing regulatory mechanisms; and

E) other natural or manmade factors affecting its continued existence.

Documented threats to the Mojave population of the desert tortoise were described in the final listing rule in 1990 as they pertain to the five listing factors (USFWS 1990) and in the 1994 Recovery Plan (USFWS 1994a). The threats identified in the 1994 Recovery Plan, and that formed the basis for listing the tortoise as a threatened species (GAO 2002), continue to affect the species today. Extensive research shows that all of these individual threats directly kill or indirectly affect tortoises. Research has also clarified many mechanisms by which these threats act on tortoises. However, despite the clear demonstration that these threats impact individual tortoises, there are few data available to evaluate or quantify the effects of threats on desert tortoise populations (Boarman 2002). While current research results can lead to predictions about how local tortoise abundance should be affected by the presence of threats, quantitative estimates

14

of the magnitude of these threats, or of their relative importance, have not yet been developed. Thus, a particular threat or subset of threats with discernable solutions that could be targeted to the exclusion of other threats has not been identified for the desert tortoise.

The assessment of the 1994 Recovery Plan emphasized the need for a greater appreciation of the implications of multiple, simultaneous threats facing tortoise populations and a better understanding of the relative contribution of multiple threats on demographic factors (i.e., birth rate, survivorship, fecundity, and death rate; Tracy et al. 2004). The approach of focusing on individual threats may not have produced expected gains toward desert tortoise recovery since 1994 because multiple threats act simultaneously to suppress tortoise populations at any given location within the species range. In this revised recovery plan, we underscore the need to build on our understanding of individual threats, yet place new emphasis on understanding their multiple and synergistic effects (interacting so that the combined effect is greater than the sum of individual effects) due to the failure of simple threat models to inform us about tortoise abundance. The following narrative provides a brief overview of the threats to the desert tortoise and its habitat as categorized by the five listing factors. A more detailed discussion of these threats is contained in Appendix A.

1. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range (Factor A)

Since the 1800s, portions of the desert southwest occupied by desert tortoises have been subject to a variety of impacts that cause habitat loss, fragmentation, and degradation, thereby threatening the long-term survival of the species (USFWS 1994a). Some of the most apparent threats are those that result in mortality and permanent habitat loss across large areas, such as urbanization, and those that fragment and degrade habitats, such as proliferation of roads and highways, off-highway vehicle activity, poor grazing management, and habitat invasion by nonnative invasive species (Berry et al. 1996; Avery 1997; Jennings 1997; Boarman 2002; Boarman and Sazaki 2006). Indirect impacts to desert tortoise populations and habitat are also known to occur in areas that interface with intense human activity (Berry and Burge 1984; Berry and Nicholson 1984b).

Another threat that has come to the forefront is the increased frequency of wildfire due to the invasion of desert habitats by non-native plant species (USFWS 1994a; Brooks 1998). Changes in plant communities caused by non-native plants and recurrent fire can negatively affect the desert tortoise by altering habitat structure and species available as food plants (Brooks and Esque 2002). Off-highway vehicle activity, roads, livestock grazing, agricultural uses, and other activities contribute to the spread of non-native species (or the displacement of native species) and the direct loss and degradation of habitats (Brooks 1995; Avery 1998). For example, unmanaged livestock grazing, especially where plants are not adapted to large herbivorous mammals or where the non-native species are less palatable than the natives, can preferentially remove native vegetation, leaving non-native plants to grow under reduced competition (Wittenberg and Cock 2005:228).

Landfills and other waste disposal facilities potentially affect desert tortoises and their habitat through fragmentation and permanent loss of habitat, spread of garbage, introduction of

15

toxic chemicals, increased road kill of tortoises on access roads, and increased predator populations (Boarman et al. 1995; Kristan and Boarman 2003). Military operations (e.g., construction and operation of bases, field maneuvers) have taken place in the Mojave Desert since 1859 and can affect tortoises and their habitats similarly to other large human settlements (i.e., illegal collection of tortoises, trash dumping, increased raven (Corvus corax) populations, domestic predators, off-highway vehicle use, increased exposure to disease, and increased mortality) (USFWS 1994a; Krzysik 1998; Boarman 2002).

As of November 2010, six solar projects in California and one in Nevada were approved on public lands within the range of the desert tortoise, constituting 3,037.5 megawatts (MW) on 9,683 hectares (23,926 acres) and 430 MW on 3,173 hectares (7,840 acres), respectively. Three additional solar projects on private lands in California have been approved totaling 1,063 MW on 1,686 hectares (4,165 acres). Seven solar projects on public lands were still pending, totaling 1,450 MW on 4,314 hectares (10,659 acres) in California and 900 MW on 6,955 hectares (17,186 acres) in Nevada. Three wind projects within the range of the desert tortoise were also pending, totaling 536.5 MW on 11,775 hectares (29,096 acres) of public and private rights-ofway; one of the California projects is proposed within designated critical habitat. No applications have been submitted for solar or wind projects on public lands within the range of the Mojave population of the desert tortoise in Arizona or Utah. Dozens of project sites have been proposed, and the Bureau of Land Management has committed to excluding these projects from designated critical habitat for the desert tortoise and Desert Wildlife Management Areas. However, 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.

2. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes (Factor B)

Despite legal protection under Federal and State laws, deliberate maiming or killing of tortoises (previously referred to as vandalism) and collection of desert tortoises by humans for food or as pets were cited as potential threats to the species (USFWS 1994a). Data and anecdotal observations indicate that collection for personal or commercial purposes was significant in the past (USFWS 1994a). While illegal collection of desert tortoises still occurs and collection could possibly impact local populations, there is no quantitative estimate of the magnitude of this threat (Berry et al. 1996; Boarman 2002).

Research projects may result in injury or loss of individuals. These activities may be permitted under section 10 of the Endangered Species Act, when permitted. Terms and conditions to minimize injury and mortality of individuals are mandatory.

3. Disease or Predation (Factor C)

To date the available evidence indicates that upper respiratory tract disease, as caused by the bacteria Mycoplasma agassizii and M. testudineum (Jacobson et al. 1991), is probably the most important infectious disease affecting desert tortoises. Less is known about other diseases that have been identified in the desert tortoise (e.g., herpesvirus, cutaneous dyskeratosis, shell necrosis, bacterial and fungal infections, and urolithiasis or bladder stones) (Jacobson et al. 1994;

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Homer et al. 1998; Berry et al. 2002b; Origgi et al. 2002). There is evidence that any one disease may predispose an animal to other diseases (Christopher et al. 2003). However, it is not known whether this is a cause or effect. Additional research is needed to clarify the role of disease in desert tortoise population dynamics relative to other threats.

The role of environmental contaminants in directly inducing toxicosis-related diseases (i.e., liver diseases) and increasing susceptibility to infectious diseases has recently been suggested as a significant source of mortality (Homer et al. 1994, 1996; Berry 1997; Boarman 2002; Christopher et al. 2003). Elevated mercury and arsenic levels have been associated with diseased tortoises in the wild (Jacobson et al. 1991; Homer et al. 1998; Seltzer and Berry 2005; Chaffee and Berry 2006). Necropsy and analyses of kidney, liver, and scute tissues suggested that tortoises from California with a variety of diseases (upper respiratory tract infection, urolithiasis, metabolic disease, and shell diseases) had statistically significantly higher levels of several potentially toxic elements as compared to healthy tortoises (Berry et al. 1997). Illegal dumping of hazardous wastes in the California deserts may expose tortoises to increased levels and possible consumption of toxic substances and affect populations on a localized level where these activities are concentrated (Boarman 2002). It has been postulated that elemental toxicity may compromise the immune system of desert tortoises or otherwise detrimentally affect physiological function, rendering them more susceptible to disease, but further investigation is needed.

Desert tortoises, particularly hatchlings and juveniles, are preyed upon by several native species of mammals, reptiles, and birds. The common raven (Corvus corax) has been the most highly visible predator of small tortoises, while coyotes (Canis latrans) have been commonly implicated in deaths of adult tortoises. The population-level effects of these or other predators are unknown. Except for extreme predation events brought on by unusual circumstances, predation by native predators alone would not be expected to cause dramatic population declines. This reiterates the importance of combined and synergistic effects of threats. For example, predation pressure by ravens is increased through elevated raven populations as a result of resource subsidies associated with human activities. Ravens obtain food in the form of organic garbage from landfills and trash containers, water from sewage ponds and municipal areas, and nesting substrates on billboards, utility towers, bridges, and buildings (Boarman et al. 2006).

Other avian predators of the desert tortoise include red-tailed hawks (Buteo jamaicensis), golden eagles (Aquila chrysaetos), loggerhead shrikes (Lanius ludovicianus), American kestrels (Falco sparvarius), burrowing owls (Athene cunicularia), and greater roadrunners (Geococcyx californianus) (Boarman 1993). Coyotes, kit foxes (Vulpes macrotis), mountain lions (Felis concolor), ground squirrels (Spermophilus spp.), and free-roaming dogs are some of the known mammalian predators (Bjurlin and Bissonette 2001; Boarman 2002; M. McDermott, Southern Nevada Environmental, Inc., pers. comm. 2006, K. Nagy, University of California-Los Angeles, pers. comm. 2006; Medica and Greger 2009). Invertebrate predators of eggs and hatchling tortoises include native fire ants (Nagy et al. 2007).

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4. Inadequacy of Existing Regulatory Mechanisms (Factor D)

The final listing rule acknowledged that all four states within the range of the Mojave population of the desert tortoise have laws in place to protect the species. In addition, a great deal of effort has been dedicated to planning by the various land management agencies whose jurisdictions include desert tortoise habitat. Many of the existing plans include language specific to protection of the species, such as limiting off-highway vehicle use and competitive/organized events, grazing, vegetation harvest, and collection of desert tortoises. However, the multiple-use mandates under which the agencies function require a complex balance between conservation and use of public lands, and management agencies frequently do not have sufficient funding to enforce their regulations. Also, state law in Arizona, Nevada, and Utah does not regulate habitat degradation, making mitigation of impacts to potentially unoccupied but suitable habitat difficult.

Land exchanges and transfers may result in loss of desert tortoise habitat, increased fragmentation, and displacement of resident desert tortoises, because habitat that is exchanged out of Federal ownership into the private sector is at greater risk of urban development (Sievers et al. 1988; but see Conservation Efforts, Land Acquisitions and Habitat Conservation Plans, below). Energy and mineral development and extraction also pose a significant threat to desert tortoises through habitat loss and fragmentation (Luke et al. 1991; Lovich and Bainbridge 1999; LaRue and Dougherty 1999). For example, as of November 2010, the area of approved and pending solar and wind-energy applications on public lands in California exceeds 100,000 hectares (247,000 acres).

5. Other Natural or Manmade Factors Affecting its Continued Existence (Factor E)

Global climate change and drought are potentially important long-term considerations with respect to recovery of the desert tortoise. There is now sufficient evidence that recent climatic changes have affected a broad range of organisms with diverse geographical distributions (Walther et al. 2002). While little is known regarding specific direct effects of climate change on the desert tortoise or its habitat, predictions can be made about how global and regional precipitation regimes may be altered and about the consequences of these changes (Weltzin et al. 2003; Seager et al. 2007).

The Intergovernmental Panel on Climate Change has suggested that increasingly reliable regional climate change projections are available as the result of improved modeling capabilities and advanced understanding of climate systems (Christensen et al. 2007). Twenty-one Atmosphere-Ocean General Circulation Models were run to predict regional temperature and precipitation across the globe in 2080 through 2099 as changed from conditions that occurred between 1980 and 1999. Generally, predictions for the geographic range of the desert tortoises listed population suggest a 3.5 to 4.0 degree Celsius (6.3 to 7.2 degree Fahrenheit) increase in annual mean temperature, with the greatest increases occurring in summer (June-July-August mean up to 5 degrees Celsius [9 degrees Fahrenheit] increase) (Christensen et al. 2007). Precipitation will likely decrease by 5 to 15 percent annually within the range of the desert tortoise with winter precipitation decreasing up to 20 percent (Christensen et al. 2007). Because germination of the tortoises food plants is highly dependent on cool season rains, the forage

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base could be reduced due to increasing temperatures and decreasing precipitation in winter. Smith et al. (2009) review various types of global change relative to expected effects in the Mojave Desert, such as elevated carbon dioxide and altered precipitation regimes facilitating invasive plant species, thereby increasing fire frequency. Effects of altered nitrogen dynamics on the Mojave Desert are less clear. For example, increased nitrogen deposition from dust in the vicinity of metropolitan areas could result in higher plant production, exacerbating the effects from carbon dioxide noted above (Smith et al. 2009). Alternatively, increased temperatures may release nitrogen gases from Mojave Desert soils, reducing fertility of those soils and the ability to support plant life (McCalley and Sparks 2009). Further predictions need to be developed specifically for the desert tortoise to help inform recovery efforts.

Other activities that may impact the species include non-motorized recreation such as camping, hunting, target shooting, rock collecting, hiking, horseback riding, biking, and sightseeing. These activities bring with them threats associated with increased human presence, such as loss of habitat from development of recreational facilities, handling and disturbance of tortoises, increased road kill and deliberate maiming or killing of tortoises, increased raven predation, degradation of vegetation, and soil compaction (USFWS 1994a; Averill-Murray 2002). Desert habitats are also disturbed by construction and maintenance of linear utility corridors and ancillary facilities and to some degree by vandalism and harvest of vegetation for personal or economic purposes (Olson 1996; LaRue and Dougherty 1999).

Another potential threat facing the desert tortoise is the unauthorized release or escape of pet tortoises to the wild. Captive releases have the potential to introduce disease into wild populations of desert tortoises (Johnson et al. 2006; Martel et al. 2009). Tomlinson and Hardenbrook (1993) reported that the highest prevalence of clinical signs of upper respiratory tract disease was observed in tortoises removed from areas where previous releases of captive animals had occurred. Release or escape of captive tortoises genetically different from the resident population could theoretically decrease fitness (Tallmon et al. 2004).

H. CONSERVATION EFFORTS

While precise correlations between threats and desert tortoise populations have not been clearly shown, a great deal of effort has been put forth by research scientists and land managers to actively conserve the species. For instance, substantive datasets pertaining to disease, nonnative invasive plant species, and fire have been assembled over the years that will be used to inform decisions relative to recovery of the desert tortoise and its habitats. On-the-ground conservation actions such as land acquisitions, installing protective fencing, retiring grazing allotments, limiting off-highway vehicle access, and implementing restoration projects have been based on what we believe are threats to the desert tortoise at this time (see GAO 2002). The following are examples of existing guidance and strategies to further resource conservation.

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1. Wildlife Conservation Strategies

In 2000, Congress enacted the State Wildlife Grants Program to fund activities that benefit species of concern and their habitats. To receive funding under this program, State wildlife agencies needed to complete a Fish and Wildlife Service-approved wildlife action plan (or comprehensive wildlife conservation strategy). All four states where the Mojave population of the desert tortoise occurs are currently implementing these strategies to guide species and habitat management through 2015 (Gorrell et al. 2005; Abele et al. 2006; Arizona Game and Fish Department 2006; Bunn et al. 2006).

Each state has identified conservation priorities and recommendations that are both species- and habitat-specific. Some of these actions include, but are not limited to, the following:

improve stewardship on federally managed lands to protect wildlife diversity; work cooperatively with landowners/permittees by providing financial and technical

assistance (through incentive programs) for conservation projects; work with city and county planners to incorporate wildlife values in urban/rural

development plans; promote design and construction of overpasses, underpasses, or culverts to increase

permeability of existing or planned roads; identify and protect key wildlife corridors for landscape connectivity; reduce off-highway vehicle damage to wildlife habitats; encourage revegetation and restoration of existing unauthorized roads and trails; improve efforts and partnerships for controlling existing occurrences of invasive species

and prevent new introductions; rehabilitate burned and disturbed areas with native plants; pursue projects to limit spread of disease to sensitive wildlife populations; use fencing and/or increased law enforcement presence to reduce un