CEC Flaunting Endangered Species Act Obligations?

The petition filed by Basin and Range Watch asking the California Energy Commission (CEC) to reconsider its decision on the BrightSource Energy Ivanpah Solar power project raises new information regarding the potential impact of the solar project on the survivability of desert tortoises.  The CEC approved the project earlier this month based on the assumption that a translocation plan and mitigation funds could offset the likely loss of endangered desert tortoises.  Such mitigation funds were designated for the purchase of land elsewhere in the Mojave Desert to be set aside for tortoise conservation.

Genetically Significant Tortoise Population In Decline

The Basin and Range Watch petition highlights new information from the Bureau of Land Management's (BLM) biological opinion for another proposed project in the Ivanpah Valley that charactierized the tortoise population in the area -- identified as the Northeastern Mojave Recovery Unit--as the least abundant of all of the tortoise populations; the local population has been declining since the mid-1990s.

The Northeastern Mojave Recovery Unit is identified as one of six designated evolutionary significant units that make up the overall desert tortoise population.  The Petition points out biological research by Dr. Kristin Berry about the genetic significance of each Recovery Unit, and the importance of maintaining viable populations of each genetic unit to encourage the species survival.

The CEC described concerns about the survival of evolutionary or genetically significant units as "speculative" in the Presiding Member's Proposed Decision, thus prompting the Basin and Range Watch petition in an effort to present facts apparently overlooked by the CEC. 

Both CEC and BLM have an obligation under the law--the Endangered Species Act--to ensure that the projects they allow to move forward on Federal land will not jeopardize the viability of the endangered species.  The record to date suggests they have been inconsistent in efforts to meet these obligations.  The BLM's approval of the Ivanpah Solar Energy Generating System is not consistent with the biological opinion they issued for the separate project in the same area that suggests the Recovery Unit is in serious decline.  And the CEC's characterization of concerns about the Recovery Unit's future as "speculative" seems to ignore scientific evidence.

A Desert Tortoise photographed at another solar project site. Image from CEC document.

Show Me the Translocation Plans!

The BLM is also under obligation to develop a thorough translocation plan before permitting the construction.  A thorough translocation was not made available to the public, and as of an earlier evidentiary hearing, the BLM had not even identified a place to receive some of the displaced tortoises.  This appears to be inconsistent with the BLM's obligations under the National Environmental Policy Act (NEPA), which typically requires a thorough assessment of a project's environmental impacts before it can be approved.  For the Ivanpah project,  the indirect effects could extend to what impacts relocated tortoises will have on their new sites, given the potential to spread disease or place stresses on the tortoise population in the new site.

Furthermore, the Endangered Species Act mandates that the BLM ensure that the project's impacts on the desert tortoise "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild."  According to the information presented by Basin and Range Watch's petition, the Ivanpah Solar power project may have a significant impact on an evolutionary significant unit of the tortoise population.

The Endangered Species Act language that governs how Federal agencies go about permitting an "applicant" such as BrightSource Energy to harass or kill (called "take" or "taking") an endangered species is copied below:

(2)(A) No permit may be issued by the Secretary authorizing any taking referred to in paragraph (1)(B) unless the applicant therefor submits to the Secretary a conservation plan that specifies—
(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;
(iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and
(iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.

(B) If the Secretary finds, after opportunity for public comment, with respect to a permit application and the related con- servation plan that—
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;
(iii) the applicant will ensure that adequate funding for the plan will be provided;
(iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;(v) the measures, if any, required under subparagraph (A)(iv) will be met; and he has received such other assurances as he may require that the plan will be implemented, the Secretary shall issue the permit. The permit shall contain such terms and conditions as the Sec- retary deems necessary or appropriate to carry out the purposes of this paragraph, including, but not limited to, such reporting re- quirements as the Secretary deems necessary for determining whether such terms and conditions are being complied with.

The CEC and BLM need to 1.) provide details on the Ivanpah tortoise translocation, and 2.) ensure that conservation lands are set aside within the Northeaster Mojave Recovery Unit region.  Given the decline in this endangered species' population--particularly the evolutionary significant unit occurring in the Ivanpah Valley--the BLM and CEC need to strongly consider whether permitting the Ivanpah Solar project is even consistent with the law.