Unusual new legal bid in fight against endangered Nevada toad

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By SCOTT SONNER – Associated Press

RENO, Nevada (AP) — In a highly unusual move in a legal battle over a Nevada geothermal power plant and an endangered toad, the project developer is now asking a judge to allow it to cut back 80% from the original plan US land managers approved last November.

The U.S. Bureau of Land Management and Ormat Technologies have both filed requests to stay the case, citing the U.S. Fish and Wildlife Service’s listing of the Dixie Valley toad in April as temporarily endangered. and emergency.

“Significant factual developments have fundamentally changed the nature of this litigation,” government attorneys wrote Oct. 27 in a formal motion to stay the case in federal court in Reno.

Ormat joined the request in a filing on Monday, agreeing that the “legal landscape” had changed with the toad’s temporary listing – something the agency has only done on an emergency basis twice in the past 20 years. .

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The toad lives in wetlands adjacent to the project about 160 kilometers east of Reno. Environmentalists and a tribe fighting the project say pumping hot water from beneath the earth’s surface to generate carbon-free energy would negatively affect surface water levels and temperatures critical to the toad’s survival and sacred to the Fallon Paiute-Shoshone Tribe.

The company said it wanted to revise its initial plans for two power plants capable of producing 60 MW of electricity and build a single 12 MW facility instead.

The Center for Biological Diversity, which requested listing and sued to block the project, intends to oppose the application. His official response is expected on November 9.

“What BLM is proposing would be extremely unusual,” Patrick Donnelly, director of the Grand Bassin center, told The Associated Press. “Projects are generally evaluated on their own merits as stand-alone proposals, not cut to fit a developer’s requirements and schedule.”

The case has already made a trip to the 9th United States Court of Appeals and seemed likely to eventually return to its current legal path.

On August 1, the San Francisco Court of Appeals refused to stop the project. But later that day, Ormat agreed to cease construction until Jan. 1, 2023. The Reno-based company then agreed to suspend all work until February.

The toad’s listing triggered a requirement for the bureau to consult with the Fish and Wildlife Service to ensure Ormat’s mitigation plan will not harm the toad or its habitat in violation of the Species Act. endangered.

“While the BLM and Ormat have consistently maintained that the … project and its (mitigation) plan are sufficient to avoid, minimize or mitigate impacts to the toad and its habitat, regardless of the listing status of the species, the listing initiated an obligation and an intensive consultation process with the service,” Ormat’s lawyers wrote on Monday.

Ormat understands that the construction and operation of a smaller project under an amended business case would be contingent on BLM’s compliance with the law and that any subsequent proposals to expand the project beyond the single power plant electric would require a separate review process, they said.

BLM said in its Oct. 27 filing that it would expedite review of the revised plan and planned to submit a biological assessment of the proposal by March 31 to the FWS, which said it could determine by August. 2023 if the plan complies with the law.

Donnelly said Ormat and the BLM do indeed want the agency to approve the scaled-down version of the draft before completing the mandatory consultation.

“We argue that it’s illegal – put the cart before the horse because they don’t know if FWS will approve the project or not,” he said. He said the group’s objections would remain the same “even for an installation one-fifth the size proposed”.

Donnelly said the stay request suggests “Ormat is desperate to avoid a judge deciding that geothermal energy is likely to impact adjacent surface water sources.”

“No judge has ever done that before,” he said. “The precedent would be huge – a watershed moment in the licensing of geothermal energy projects, where BLM would be forced to face the reality head-on, that geothermal energy is dangerous to hot springs ecosystems.”

Copyright 2022 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without permission.

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