[Federal Register Volume 80, Number 172 (Friday, September 4, 2015)]
[Pages 53559-53562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-22059]



Fish and Wildlife Service

[FWS-R8-ES-2015-N170; FXES1113088ENDT0-156-FF08ENVD00]

Endangered and Threatened Wildlife and Plants; Proposed Low-
Effect Habitat Conservation Plan for the Desert Tortoise, Nye County, 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Receipt of application; request for comment.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service) announce 
receipt from Valley Electric Association, Inc. of an application for a 
30-year incidental take permit (permit) under the Endangered Species 
Act of 1973, as amended (Act). The requested permit would authorize 
take of the Mojave desert tortoise resulting from the construction, 
operation, and maintenance of a solar photovoltaic facility in the town 
of Pahrump, Nevada. The permit application includes a proposed low-
effect habitat conservation plan (HCP) that incorporates measures the 
applicant would implement to minimize and mitigate effects of project 
activities on the desert tortoise. In accordance with the requirements 
of the National Environmental Policy Act (NEPA), we have prepared a 
draft low-effect screening form supporting our preliminary 
determination that the proposed action qualifies as a categorical 
exclusion under NEPA. We are accepting comments on the permit 
application, proposed low-effect HCP, and draft NEPA compliance 

DATES: Written comments on the permit application, proposed low-effect 
HCP, and draft NEPA compliance documentation must be received on or 
before October 5, 2015.

    Obtaining Documents: Persons wishing to review the application, the 
proposed low-effect HCP, the draft NEPA compliance documentation, or 
other related documents may obtain copies by written or telephone 
request to Jeri Krueger, by mail at U.S. Fish and Wildlife Service, 
Reno Fish and Wildlife Office, 1340 Financial Boulevard, Suite 234, 
Reno, NV 89502, or by phone at 775-861-6300. Copies of these documents 
may also be obtained on the Internet at http://www.fws.gov/nevada.
    Submitting Comments: Please address written comments to Michael J. 
Senn, Field Supervisor, U.S. Fish and Wildlife Service, Southern Nevada 
Fish and Wildlife Office, 4701 North Torrey Pines Drive, Las Vegas, NV 
89130. You may also send comments by facsimile to 702-515-5231. Please 
note that your information request or comment is in reference to the 
Valley Electric Association Community Solar Project Low-Effect HCP, Nye 
County, Nevada.

FOR FURTHER INFORMATION CONTACT: Jeri Krueger, Reno Fish and Wildlife 
Office, at the address or telephone number listed above under 


Document Availability

    You may obtain copies of the permit application, proposed HCP, 
draft NEPA compliance documentation, and other related documents from 
the individual listed under FOR FURTHER INFORMATION CONTACT. Copies of 
these documents are also available for public inspection, by 
appointment, during regular business hours (8 a.m. to 4:30 p.m.), at 
the Southern Nevada Fish and Wildlife Office, 4701 North Torrey Pines 
Drive, Las Vegas, NV 89130.

[[Page 53560]]

Background Information

    Section 9 of the Act (16 U.S.C. 1531-1544 et seq.) and Federal 
regulations (50 CFR 17) prohibit the taking of fish and wildlife 
species listed as endangered or threatened under section 4 of the Act. 
Take of federally listed fish or wildlife is defined under the Act as 
to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect listed species, or attempt to engage in such conduct. The term 
``harass'' is defined in the regulations as to carry out actions that 
create the likelihood of injury to listed species to such an extent as 
to significantly disrupt normal behavioral patterns, which include, but 
are not limited to, breeding, feeding, or sheltering (50 CFR 17.3). The 
term ``harm'' is defined in the regulations as significant habitat 
modification or degradation that results in death or injury of listed 
species by significantly impairing essential behavioral patterns, 
including breeding, feeding, or sheltering (50 CFR 17.3). However, 
under specified circumstances, the Service may issue permits that allow 
the take of federally listed species, provided that the take that 
occurs is incidental to, but not the purpose of, an otherwise lawful 
    Regulations governing permits for endangered and threatened species 
are at 50 CFR 17.22 and 17.32, respectively. Section 10(a)(1)(B) of the 
Act contains provisions for issuing such incidental take permits to 
non-Federal entities for the take of endangered and threatened species, 
provided the following criteria are met:
    (1) The taking will be incidental;
    (2) The applicants will, to the maximum extent practicable, 
minimize and mitigate the impact of such taking;
    (3) The applicants will develop a proposed HCP and ensure that 
adequate funding for the HCP will be provided;
    (4) The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild; and
    (5) The applicants will carry out any other measures that the 
Service may require as being necessary or appropriate for the purposes 
of the HCP.

Proposed Project

    Valley Electric Association, Inc. (VEA) proposes to construct, 
operate, and maintain a photovoltaic solar facility with 54,864 fixed 
panels within an 80-acre parcel of land located in the northeast part 
of the town of Pahrump that will provide power to VEA's members within 
their service area located mainly along the Nevada-California border. 
The project would provide a source of clean energy to be used by VEA 
members and would create additional job opportunities in the community. 
The project proponent is applying for an incidental take permit because 
the project is located within desert tortoise habitat and take would be 
unavoidable as a result of constructing and operating the solar 
facility on the project site.
    The leading edge of the solar panels would be raised to a height of 
42 inches above the ground, which is about 18 inches above current 
industry standards. All panels would be blue-black in color and would 
be composed of the least reflective glass available. Two solar panel 
spacing configurations would be used: The northern 40 acres would have 
an inner row spacing of 14 feet, and the southern 40 acres would have 
an inner row spacing of 20 feet. These design feature modifications are 
for the purpose of allowing more light to reach beneath the solar array 
to maintain vegetation underneath the solar panels and encourage 
continued use of the project site by desert tortoises, and to determine 
if wider spacing between the panels would reduce the potential for bird 
strikes on the panels. The project site would be fenced with security 
chain-link fencing, incorporating 10 by 7-inch gaps along the bottom of 
the fence to allow desert tortoises to gain access and occupy the site 
during operation of the solar facility.
    The project proponent would develop and implement an Avian 
Protection and Monitoring (APM) Plan to minimize and monitor potential 
impacts to migratory birds from the solar facility. The solar array is 
designed to determine if different configurations of solar panels may 
break up the appearance of a lake-like effect from a bird's 
perspective. The project proponent would use a qualified third-party 
contractor to design a monitoring protocol to track any differences in 
effects to migratory birds and incorporate the protocol into the APM 
    The project is located within the town limits of Pahrump in T 19 S, 
R 53 E, Section 25. In addition, an associated distribution line and 
access road would be constructed within a 2,640-foot by 20-foot 
easement in T 19 S, R 53 E, Sections 24 and 25. The project area is 
approximately 1.4 miles east of Highway 160 and immediately south of 
Simkins Road.

Proposed Covered Activities

    The duration of construction activities is expected to last 
approximately 8 months and the project is anticipated to be in service 
for 30 years, which is the requested duration of the permit term. 
Construction of the solar field would include the following:
     Installation of 30 degree fixed tilt, ground mounted solar 
PV panels capable of producing 15 MWAC of power. The panels would be 
installed in twelve groupings each containing 4,572 315-watt panels 
(54,864 panels in total). Each panel would measure 39 inches by 79 
inches, with the leading edge about 42 inches above the ground. The 
panels would be blue-black in color and would be composed of the least 
reflective glass available.
     Construction of a 40-foot wide by 2,642-foot long gravel 
access road down the east-west center of the site.
     Installation of 10 inverter stations (12 feet by 40 feet 
by 7.1 feet tall) adjacent to the access road.
     Construction of a 0.4-acre switchyard area in the 
northeast corner of the site, which would include a parking area, a 500 
square foot prefabricated building for housing system monitoring 
equipment and for use as a visitor center, and a switchgear cabinet 
containing system project equipment, metering, telecommunications 
equipment, and switches to be mounted on a concrete pad.
     Conduit and wire that would be buried approximately 4 feet 
deep between the panels and inverter station and switchgear.
     Grading and leveling a 0.5-acre area in the northwest 
corner of the site to be used as a future well site.
     Placement of rip-rap and culverts in the large wash 
located in the southern portion of the site.
     Containment of staging and temporary work areas within the 
80-acre site.
     Installation of a 6-foot tall chain-link perimeter fence 
around the 80-acre site along with secured access gates. The fence 
would have barbed wire on top for security purposes. The fence would 
also include openings along the bottom that are at least 10 inches high 
and 7 inches wide and spaced approximately 260 feet apart to allow 
desert tortoise ingress and egress at the site after construction 
activities are completed.
     Construction of a 2,640-foot 24.9kV distribution line and 
10-foot wide access road that would connect to an existing power line 
located east of the project site.
    The project would use between 500,000 and 600,000 gallons of water 
during construction. The water would be obtained off-site from an 
existing local area water utility and trucked to the project site. 
After construction, it is not anticipated that the panels would

[[Page 53561]]

need to be washed. However, should washing become necessary, water 
would be trucked in to the project site. Any water used for washing 
would be contained within the project site (i.e., no run-off). Also, 
the prefabricated building would ultimately have water supplied by a 
small well and a sewer system. VEA owns one-half acre-foot per year of 
water rights to use for the building. All water from the future well 
would be used for the prefabricated building only and not within the 
solar array or other facilities.
    VEA would manage and control noxious weeds and invasive plant 
species consistent with applicable regulations. The introduction of 
noxious weeds and invasive plants would be addressed through the use of 
certified weed-free seed and mulching; cleaning of vehicles to avoid 
introducing invasive weeds; and education of personnel on weed 
identification, the manner in which weeds spread, and methods for 
treating infestations. Regarding the cleaning of vehicles, a controlled 
inspection and cleaning area would be established to visually inspect 
construction equipment arriving at the project site and to remove and 
collect seeds that may be adhering to tires and other equipment 
surfaces. Equipment would also be cleaned any time thereafter if the 
equipment leaves the project site, is used on another project, and 
reenters the project site. Further, to prevent the spread of invasive 
species, project developers would determine whether a pre-activity 
invasive species survey is warranted and if so, to conduct the survey. 
Were noxious weeds or invasive plants to be introduced to the project 
site as a result of the project, VEA would use principles of integrated 
pest management to prevent the spread of invasive species.
    Rather than using the typical construction technique of grading, 
tilling, and leveling the entire 80-acre project site, the applicant 
would leave most of the vegetation intact, and would crush, mow, or 
trim vegetation to avoid interfering with the solar panels. Solar 
panels would be elevated to a height of 42 inches at the bottom leading 
edge to promote vegetation to persist underneath the solar array by 
allowing more light to reach the vegetation left below the solar 
    Two solar panel spacing configurations would be designed within the 
80-acre project site:
    (1) Industry Standard: The northern 40 acres of the project site 
would have an inner row spacing (i.e., distance between the upper 
trailing edge of a panel and the bottom leading edge of the panel 
behind it) of 14 feet.
    (2) Modified Configuration: The southern 40 acres of the project 
site would have an inner row spacing of 20 feet in order to allow for 
more light to reach the ground and encourage vegetation growth and 
break up the pattern of the solar panels in an effort to reduce the 
potential for impacts to migratory birds.
    The project includes operation and maintenance of the solar field, 
which would be accessed primarily along the center access road mostly 
using lightweight off-highway vehicles. Operation and maintenance 
activities include but are not limited to: Visual inspections, cleaning 
of the front screens and rear louvers, cleaning of the air intake 
filter, verification of electrical connections, and verification of 
signal connections. Within the PV array, activities would include 
visual inspections of the PV modules, racking system, electrical 
wiring, weather stations, and the perimeter fence. Cleaning or washing 
of PV modules is not expected, but if needed, would be performed with 
warm water and an environmentally friendly soap that would not harm 
wildlife or vegetation. Equipment would be replaced as necessary and 
would be performed on foot whenever possible. Upon retirement of the 
facility, all equipment would be removed, including fencing, and 
disturbance reclaimed (holes filled in and raked to match the 
surrounding topography). The area would then be allowed to recover 
    The project would result in the long-term loss of approximately 4 
acres of desert tortoise habitat (2.4 acres from construction of the 
on-site gravel access road, 0.4 acre associated with the switchyard, 
0.5 acre associated with the well site, and 0.65 acre from construction 
of the distribution line access road). Vegetation within the remaining 
acreage on the 80-acre project site would be left intact, subject to 
crushing, mowing, and trimming as necessary, and the facility would 
remain available for desert tortoises to access and occupy the site.

Proposed Conservation Measures

    The applicant would install a temporary desert tortoise exclusion 
fence and access gates along the perimeter of the 80-acre project site 
prior to commencement of construction activities and perform desert 
tortoise clearance surveys to temporarily move resident tortoises out 
of harm's way during construction of the facility. Based on results 
from desert tortoise presence/absence surveys conducted on the project 
site in April of 2015, an estimate of 2 to 4 adult tortoises may occupy 
the project site. Tortoises found during clearance surveys would be 
moved to a tortoise-fenced enclosure on property owned by the applicant 
that is located 2,000 feet east of the project site. The applicant 
would follow all protocols and approved methodologies for handling and 
care of desert tortoises. Upon completion of construction activities, 
tortoises would be individually marked, fitted with tracking devices, 
returned to the project site and released, and the temporary tortoise 
exclusion fence would be removed.
    The permanent security fence around the perimeter of the solar 
project area would have tortoise access points constructed to allow 
tortoises to access and occupy the project site after construction is 
    Vegetation would not be bladed and would be left intact, but mowed, 
clipped, or crushed within the solar project site to maintain root 
structure of vegetation and to keep the existing seed bed.
    PV panels would be mounted on driven piers to minimize site 
disturbance by avoiding the need for excavation and concrete placement.
    PV panels would be elevated to a minimum height of 42 inches, which 
is about 18 inches above the current industry standard, and spacing 
increased in a portion of the array to accommodate tortoise movement 
and vegetation growth beneath arrays.
    Combiner boxes would be relocated to the center roadway to minimize 
    Overall, ground disturbance would be kept to the minimum required.
    Desert tortoise exclusion fencing would be constructed along the 
perimeter of the switchyard and the well site for the lifetime of the 
project to prevent tortoises from accessing these two high activity 
    The on-site gravel access road would be posted with a 15-MPH speed 
limit once the facility is put into service, and utility terrain 
vehicles would mostly be used along the route in order to have 
maximized ground view to watch for tortoises. When use of larger 
vehicles is required, ground guides would be utilized to walk in front 
of vehicles to ensure the road is free of tortoises.
    Desert tortoise surveys would be conducted one week prior to the 
start of construction of the distribution line and associated access 
road. Tortoise burrows would be flagged and construction modified to 
avoid impacts. An authorized desert tortoise biologist would be present 
during construction. If

[[Page 53562]]

a tortoise is found within the construction area, activities would 
cease until the desert tortoise moves out of harm's way or is moved out 
of harm's way by an authorized desert tortoise biologist. Relocation 
would be the minimum distance possible (with a maximum of 500 meters) 
within appropriate habitat to ensure its safety from death, injury, or 
collection associated with the Project or other activities. Other 
measures would be implemented to minimize impacts to desert tortoise as 
listed in Appendix D in the HCP and in accordance with the most current 
Service-approved protocols (currently the Service's 2009 Desert 
Tortoise Field Manual).
    All employees and contractors involved with the project would be 
required to complete a sensitive resources education program approved 
by the Service. The program would cover the distribution, general 
behavior, and ecology of listed species; sensitivity to human 
activities; legal protections; penalties for violation of state and 
Federal laws; reporting requirements; and minimization measures.
    The project proponent would use qualified third-party contractors 
to design and implement research and monitoring studies to evaluate the 
impact of the two solar panel configurations on vegetation and 
migratory birds. Specific to desert tortoise, the studies would be 
designed to address questions related to effects of solar panels on 
vegetation growth, ability to seed underneath solar panels with desert 
tortoise forage species, and effects of solar panels on soil conditions 
such as temperature, water balance, microbial community, and biotic 

Proposed Action and Alternatives

    The Proposed Action consists of the issuance of an incidental take 
permit and implementation of the proposed HCP, which includes measures 
to avoid, minimize, and mitigate impacts to the Mojave desert tortoise. 
If we approve the permit, take of the Mojave desert tortoise would be 
authorized for the applicant's activities associated with the Valley 
Electric Association's Community Solar Project. An estimated 2 to 4 
adult desert tortoises may occupy the project site, and would be 
temporarily moved to a site close to the project area during 
construction activities and returned to the project site after 
construction is completed to ensure resident tortoises are not harmed. 
In the proposed HCP, the applicant considers alternatives to the taking 
of the Mojave desert tortoise under the proposed action. The 
Traditional Solar Project Alternative would involve blading and grading 
the 80-acre project site prior to installation of the PV array. The 
project site would be fenced with tortoise-proof fencing and cleared of 
all tortoises, resulting in long-term displacement of resident 
tortoises and long-term loss of all habitat in the project site. The 
applicant also considers a no-action alternative under which the 
project would not be constructed and incidental take of the Mojave 
desert tortoise would not be authorized. However, the no-action 
alternative would not meet the needs of the applicant to provide clean 
energy to residents within their service area.

Our Preliminary Determination

    The Service has made a preliminary determination that approval of 
the proposed HCP qualifies as a categorical exclusion under NEPA, as 
provided by the Department of the Interior Manual (516 DM 2 Appendix 1, 
516 DM 6 Appendix 1, and 516 DM 8.5(c)(2)) and as a ``low-effect'' plan 
as defined by the Habitat Conservation Planning Handbook (November 
    We base our determination that a HCP qualifies as a low-effect plan 
on the following three criteria:
    (1) Implementation of the HCP would result in minor or negligible 
effects on federally listed, proposed, and candidate species and their 
habitats, including designated critical habitat;
    (2) Implementation of the HCP would result in minor or negligible 
effects on other environmental values or resources; and
    (3) Impacts of the HCP, considered together with the impacts of 
other past, present, and reasonably foreseeable similarly situated 
projects, would not result, over time, in cumulative effects to 
environmental values or resources that would be considered significant.
    Based upon this preliminary determination, we do not intend to 
prepare further NEPA documentation. We will consider public comments in 
making the final determination on whether to prepare such additional 

Next Steps

    We will evaluate the permit application, associated documents, and 
comments we receive to determine whether the permit application meets 
the requirements of section 10(a) of the Act, NEPA, and implementing 
regulations. If we determine that all requirements are met, we will 
issue a permit to the applicant for the incidental take of the Mojave 
desert tortoise from the implementation of the covered activities 
described in the Habitat Conservation Plan for Valley Electric 
Association's Community Solar Project, Pahrump, Nye County, Nevada. We 
will not make our final decision until after the end of the 30-day 
public comment period, and we will fully consider all comments we 
receive during the public comment period.

Public Availability of Comments

    All comments we receive become part of the public record. Requests 
for copies of comments will be handled in accordance with the Freedom 
of Information Act, NEPA, and Service and Department of Interior 
policies and procedures. Before including your address, phone number, 
email address, or other personal identifying information in your 
comment, you should be aware that your entire comment--including your 
personal identifying information--may be made publicly available at any 
time. While you can ask us to withhold your personal identifying 
information from public review, we cannot guarantee we will be able to 
do so.


    We provide this notice under section 10(c) of the Act (16 U.S.C. 
1531 et seq.) and its implementing regulations (50 CFR 17.22 and 
17.32), and the NEPA (42 U.S.C. 4321 et seq.) and its implementing 
regulations (40 CFR 1500-1508).

    Dated: August 31, 2015.
Michael J. Senn,
Field Supervisor, Southern Nevada Fish and Wildlife Office, Las Vegas, 
[FR Doc. 2015-22059 Filed 9-3-15; 8:45 am]