2024-0057088-S7_FHWA Bob Ruud Memorial HWY and Bell Vista_Formal.pdf

IN REPLY REFER TO:

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March 5, 2024 Sent electronically

Emilio Burgos Project Manager Federal Highway Administration 12300 West Dakota Avenue Suite 380 Lakewood, CO 80228

Subject: Biological Opinion for the Federal Highway Administration’s Bob Ruud Memorial Highway and Bell Vista Avenue Roadway Improvements Project, Nye County, Nevada

This document transmits the U.S. Fish and Wildlife Service’s (Service) biological opinion based on our review of the proposed Bob Ruud Memorial Highway and Bell Vista Avenue Roadway Improvements Project, Nye County, Nevada, and its effects on the federally threatened Mojave desert tortoise (Gopherus agassizii), in accordance with section 7 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). No designated desert tortoise critical habitat occurs in the action area, thus none will be affected. We received your complete consultation package for request of formal consultation on November 13, 2023.

We have based this biological opinion on information that accompanied your November 13, 2023, request for consultation, including the biological assessment for the Bob Ruud Memorial Highway and Bell Vista Avenue Roadway Improvements Project, Nye County, Nevada, prepared by the Federal Highway Administration, Central Federal Lands Highway Division (FHWA-CFLHD) and HDR, Inc. (FHWAA-CFLHD et al., 2023); correspondence between the Service and the FHWA- CFLHD; interagency section 7 consultation regulations in 50 CFR Part 402; scientific publications, articles, and reports; and our files.

United States Department of the Interior

FISH AND WILDLIFE SERVICE

Southern Nevada Fish and Wildlife Office 4701 North Torrey Pines Drive

Las Vegas, Nevada 89130

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BIOLOGICAL OPINION

Consultation History

On May 5, 2022, the Southern Nevada Fish and Wildlife Service Office (Service) met with the Nevada Federal Highway Administration, Central Federal Lands Highway Division (FHWA- CFLHD) and the Bureau of Land Management (BLM) Pahrump and Red Rock/Sloan Offices, to discuss the proposed Bob Ruud Memorial Highway and Bell Vista Avenue Roadway Improvements Project (Project) design, habitat impact determination guidelines, conservation measures, construction schedule and agency responsibilities.

On June 30, 2023, the Service received the biological assessment for the Project from FHWA- CFLHD, to address potential adverse effects to the Mojave desert tortoise.

On November 1, 2023, the Service met with FHWA-CFLHD to discuss additional project analysis needs from the FHWA-CFLHD to include disturbance acreages, use of materials from permitted sites, request of minimization measures to include exclusionary fence as applicable to project staging areas, and geospatial data.

On November 13, 2023, the Service received all necessary information to enter formal consultation as requested by the FHWA-CFLHD.

DESCRIPTION OF THE PROPOSED ACTION

Action Area

The proposed Project will include roadway improvements to Bob Ruud Memorial Highway and Bell Vista Avenue to meet current design criteria, enhance safety for travelers, and improve safety and mobility along the corridor for traffic visiting Crystal Spring Reservoir, Ash Meadows National Wildlife Refuge, and Death Valley National Park (Figure 1).

The action area begins at the intersection of North Highway 160 and Bell Vista Avenue in Pahrump, Nevada. It continues west along Pahrump Avenue for approximately five miles to the intersection with Warren Street. At this intersection, Bell Vista Avenue transitions to Bob Ruud Memorial Highway, wherein the action area continues westward for approximately 15 miles to the California State Line. The action area also includes three proposed staging areas located in disturbed Nye County gravel pits (Figure 1 and Figure 2).

The action area is located within the Bole Spring, NV-CA United States (U.S.), High Peak, NV-CA (2018), and Last Chance Range, NV (2018) Geological Survey (USGS) 7.5-minute quadrangle units. The western extent coordinates are 36.341497, -116.335501, and the eastern extent coordinates are 36.263750, -116.003139 (World Geodetic System [WGS] 84). The action area is located within the following Public Land Survey System (PLSS) section, township, and range:

• Sections 34, 35, and 36 of Township 18 South, Range 50 East;

• Section 31 of Township 18 South, Range 51 East;

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• Sections 04, 05, 06, 09, 10, 11, 13, 14, and 24 of Township 19 South, Range 51 East;

• Sections 05, 06, 19, 20, 25, 26, 27, 28, and 29 of Township 19 South, Range 52 East; and

• Sections 27, 28, 29, 30, 31, 32, 33, and 34 of Township 19 South, Range 53 East.

The action area consists of a 350-foot radius from both sides of the proposed centerline of the existing roadway to account for potential anthropogenic disturbances such as noise and vibration from construction activities. The Action Area for the project would also include all areas to be affected by the Proposed Action, including all temporary construction areas (e.g., laydown areas, staging areas). A significant portion of the project would occur on the existing roadway or immediately disturbed ROW and would not impact previously undisturbed areas, all direct and indirect effects are expected to be contained within this distance (Figure 2). This approach follows the Service’s 2019 protocol with the intent that if a tortoise is found during construction, it would be moved about 100 meters (330 feet) from the road (Service 2019a). These areas make for a combined action area of 1,890 acres. It is estimated that all project actions and associated effects as described above, including desert tortoise translocation, would occur within an 1,890-acre action area.

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Figure 1. Project Location (FHWA-CFLHD et al., 2023)

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Figure 2. Action Area and Staging Areas (FHWA-CFLHD et al., 2023)

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Proposed Action

The FHWA-CFLHD, in cooperation with Nye County and the Bureau of Land Management (BLM), is proposing road widening, reconstruction, and drainage improvements along approximately 15 miles of Bob Ruud Memorial Highway and approximately five miles of West Bell Vista Avenue in Pahrump, Nevada.

The existing Bob Ruud Memorial Highway and Bell Vista Avenue is approximately 24 feet in total pavement width, with little to no paved shoulders. It presents a safety concern for traveling vehicles and stalled or vehicle breakdowns. In addition to minimal shoulders, the existing pavement is in poor condition along Bell Vista Avenue and various sections along Bob Ruud Memorial Highway.

There have been 23 crashes within the Project area between 2014 and 2019. Thirteen of those crashes were injuries, nine were property damage only, and one was a fatality. The pavement on Bob Ruud Memorial Highway was overlaid in 2017, but it has reached the end of its lifecycle, and additional improvements to the pavement are needed. Improvements are also needed to upgrade the existing travel lanes and shoulders to meet current design criteria. In addition to roadway surface improvements, drainage improvements are needed along Bob Ruud Memorial Highway. Several existing culverts along the corridor are crushed or filled with sediment and do not provide adequate flow under the roadway.

Roadway improvements include minor widening, roadway rehabilitation and paving, and culvert removal and replacement for drainage improvements along approximately 15 miles of Bob Ruud Memorial Highway and approximately 5 miles of West Bell Vista Avenue in Pahrump, Nevada.

The roadway section would be widened from approximately 24 to 28 feet wide. It includes two 11-foot-wide travel lanes and two 1-foot-wide shoulders, with limited areas of the project having 12-foot travel lanes with no shoulders. Bell Vista Avenue begins at the intersection of Nevada State Road 160 and Mile 0.0, proceeding 5.6 miles through Pahrump to Warren Street (approximately Mile 6.0). Bob Ruud Memorial Highway begins at approximately Mile 6.0 and ends at Mile 20.6 at the California state line. The roads are maintained by Nye County. Bob Ruud Memorial Highway is within a right-of-way (ROW) easement on BLM land, and Bell Vista Avenue is within Nye County

ROW.

The proposed road improvements would closely follow the existing roadway and be widened to improve safety and mobility. The extent of construction limits past the edge of pavement ranges from 0-50 feet. The average width of ground disturbance (from the existing edge of road to limits of construction) ranges from 0-15 feet, which includes culvert improvements. The average width of previous/already disturbed area ranges from 0-40 feet. The rehabilitation includes grading, drainage improvements, upgrades to meet current standards, placement of crushed aggregate base, full-depth reclamation, asphalt pavement, signage, striping, and other safety-related features necessary to meet current design practice.

For the Project, FHWA-CFLHD will implement agency standards regarding use of materials from permitted sites. This includes the contractor using material from commercial, licensed, and permitted facilities. The facilities are responsible for operating under all Federal, state, local laws and permits. The material for the road base would be recycled and reused. If the contractor requests

2024-0057088-S7 7 to use material outside of a commercial facility or outside of the described construction limits, documentation will be submitted that proves they are within compliance of all laws and have obtained proper permits to do so, including further collaboration with the Service in the event of potential effects to endangered species not disclosed here.

Construction would require the use of a variety of equipment types, including asphalt paver, blade, lay-down machine with rollers, dump trucks, front-end loader, asphalt loader, backhoe (or excavator), crane, flatbed trucks, forklift, static roller, asphalt distributor, aggregate spreader, skid steer loader, material transfer vehicle, generators, and hand equipment.

There are numerous culvert locations within the project limits. The culverts will be designed and replaced based on hydrologic and hydraulic analysis to accommodate new fill slopes. All existing culverts will either be replaced in-kind, upsized, replaced with an arch pipe, or have a second barrel added. The culverts are being replaced due to age deterioration and structural integrity loss. All culverts 48 inches in diameter or larger will have headwalls added at both ends. All smaller culverts (18-inch to 42-inch diameter) will have flared end sections at both ends. Rip-rap ranging in size from 6 to 18-inches will be placed at the downstream end of all culverts and sized accordingly.

The roadway would remain open during construction with periodic closures to one traffic lane as needed. Minor delays of less than 30 minutes would occur during construction. Nye County, the contractor, or both will alert the public to temporary road closures via variable message signs and advanced signing or web-based traffic alerts or notices. Culvert installation would likely occur one side at a time requiring concrete barriers to maintain a safe work zone. Culvert installation will occur during low or no-flow periods and no dewatering will occur. No nighttime construction is anticipated.

Construction would occur from November 2024 through September 2025, depending on when local contractors in the area can begin laying asphalt. Staging is anticipated in designated Nye County gravel pits located on disturbed BLM land adjacent to the highway (Figure 2).

PROPOSED CONSERVATION MEASURES TO AVOID OR MINIMIZE IMPACTS

The following FHWA-CFLHD standard construction procedures would reduce and minimize impacts on desert tortoise (Gopherus agassizii):

• The terms and conditions of the Stormwater Pollution Prevention Plan and National Pollutant Discharge Elimination System permit will be followed to avoid and/or minimize impacts associated with erosion and sedimentation.

• Equipment servicing and refueling will be done away from streambeds and washes to reduce the possibility and minimize the impacts of accidental spills or discharges.

• All construction equipment will be washed prior to construction to prevent the introduction of invasive species seeds from earthmoving or hauling.

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• Avoidance and minimization measures to reduce the spread of non-native plant species and to restore habitats back to original conditions will be implemented. Areas disturbed by construction activities will be seeded with an BLM and Service-approved native seed mix.

Proposed Minimization Measures

The proposed conservation measures listed below were adapted from the Formal Programmatic Consultation for Activities Funded by the FHWA to be performed by the NDOT in Southern Nevada (Service 2022a) and incorporated into the project to reduce impacts on desert tortoise in the action area.

1) Fill and cover rip rap. Where riprap placement is necessary, the riprap will be filled with select, locally sourced, borrow which is 1-inch minus material and overlaid with 2 inches of topsoil or pea-sized gravel to minimize the potential of trapping tortoises and subsequent mortality.

2) Tortoise mortality notification. The contractor will immediately notify FHWA-CFLHD if any injured or dead animals are encountered in the work area. FHWA-CFLHD will contact Service via phone or email no later than close of business on the workday of the incident to inform them of the animal’s status, determine if injured animals require veterinary care, and obtain a referral for a qualified veterinarian or animal rehabilitation facility if appropriate. The contractor will compile and submit to FHWA-CFLHD a report, which will include photos, location information, details regarding the circumstances of the death or injury, date, time, weather conditions, and other pertinent information. FHWA-CFLHD will submit written reports for dead or injured animals to Service within 48 hours of the incident.

3) Contact representative. FHWA-CFLHD will be responsible for coordinating with Service throughout the construction period. The contractor and its representatives will coordinate with FHWA-CFLHD.

4) Authorized desert tortoise biologist. The contractor will hire one or more authorized desert tortoise biologists (ADTBs) responsible for conducting monitoring or desert tortoise field activities associated with the project and one or more biological monitors, who will work in conjunction with the ADTB, and will submit qualifications forms for each individual to FHWA-CFLHD at least 45 days before construction is scheduled to start. FHWA-CFLHD will submit the forms to Service, allowing 30 days for review and response, and obtain approval of the individuals before construction will be allowed to start. An ADTB will have a bachelor’s degree in biology, ecology, wildlife biology, herpetology, or a closely related field and must have demonstrated prior field experience using accepted resource agency techniques, which includes at least 60 days of project experience as a biological monitor. In addition, the biologist shall have the ability to recognize and accurately record survey results and must be familiar with the Desert Tortoise Field Manual (Service 2009).

5) Desert tortoise education program. An ADTB will conduct a desert tortoise awareness program before mobilizing equipment to the work area and beginning construction for all personnel who will be onsite, including but not limited to contractor staff, subcontractors, 2024-0057088-S7 9 and FHWA-CFLHD field staff. This program will include a fact sheet and will contain information on the life history of the desert tortoise, legal protection for desert tortoises, penalties for violations of federal and state laws, general tortoise activity patterns, measures to protect tortoises, personal measures workers can take to promote the conservation of desert tortoises, inspection techniques for the tortoise, and reporting procedures to be implemented in case of desert tortoise encounters.

6) Desert tortoise clearance. The ADTB(s), assisted by monitors if needed, will conduct an initial desert tortoise survey along Bob Ruud Memorial Highway and Bell Vista Avenue and within a 350-foot-wide (100-meter) buffer on each side of the road following full coverage survey protocols in the 2009 Desert Tortoise Field Manual. If ground disturbance is scheduled to start between November 1 and March 15 (Mojave desert tortoise less active season), the survey will be conducted no more than one week (7 days) before the start of ground-disturbing activities. If ground disturbance is scheduled to start between March 16 and October 31 (Mojave desert tortoise most active season), the survey will be conducted the day before or day of ground-disturbing activities. If exclusionary fencing has not been installed to prevent tortoises from re-entering the surveyed area that will be disturbed, clearance surveys will occur the day of, and immediately before ground disturbance. If a burrow is identified in the work area, the ADTB or monitor will flag it and coordinate with FHWA-CFLHD on the need to excavate, collapse, or block it to prevent desert tortoise entry or install exclusionary fencing around it so that ingress/egress can occur. If a live tortoise is encountered, the ADTB or monitor under close supervision by the ADTB will move the tortoise at least 350 feet beyond the work area following the most recent Service protocols and guidance. If any tortoise nests with eggs are encountered in the work area, the ADTB will notify FHWA-CFLHD, who will coordinate with the Service on their removal to determine the most appropriate course of action. The contractor will submit a survey report to FHWA-CFLHD, who will submit it to Service.

7) Tortoise handling protocol. Desert tortoises will be handled by the most recent Service protocols and guidance in the Desert Tortoise Field Manual. Additional modified measures may be required, which take precedence over the measures in the field manual after review and approval by Service.

8) Tortoise inspection. An ADTB, monitor, or trained contractor will conduct an inspection for desert tortoise in the work area before mobilizing equipment or beginning activities. The inspection will determine if desert tortoise is present around and under equipment, in and around areas to be disturbed or worked in for that day, and in and around all routes of ingress and egress. If a tortoise is discovered during this inspection or later in the day, the contractor will immediately cease all operations in the immediate vicinity of the tortoise and immediately notify FHWA-CFLHD. The tortoise will be allowed to move on its own or the ADTB may move it with approval from FHWA-CFLHD.

9) Provide ADTB or monitor. The ADTBs and monitors will be on-call throughout the construction period and will be available to visit the work area on short notice if requested.

If burrows or tortoises are encountered during construction, the contractor will stop work in

2024-0057088-S7 10 that area, notify FHWA-CFLHD, and contact an ADTB or monitor to assess tortoise activity in the burrow or move the tortoise out of harm’s way, based on guidance from FHWA- CFLHD and as described for other measures.

10) Avoid burrows. During construction activities, tortoise burrows shall be avoided whenever possible. If a tortoise is found on-site during project activities, which may result in “take” of the tortoise (i.e., in harm’s way), such activities shall cease until the tortoise moves or is moved out of harm’s way.

11) Overnight parking and storage. Overnight parking and storage of equipment and materials, including stockpiling, shall be in previously disturbed areas or areas cleared by an ADTB or monitor. If not possible, areas for overnight parking and storage of equipment shall be designated by the ADTB or monitor in coordination with the FHWA and the project proponent, which will minimize habitat disturbance.

12) Mark work areas. The contractor will clearly mark or flag the outer boundaries of work areas before the onset of construction, including mobilization of equipment to the work area.

All activities shall be confined to designated areas.

13) Inspect pipes and culverts. An ADTB, monitor, or trained contractor staff will conduct a daily inspection for desert tortoise in the work area before mobilizing equipment or beginning activities. The inspection will determine if desert tortoise is present around and under equipment, in and around areas to be disturbed or worked in for that day, in a construction pipe, culvert, or similar structure with a diameter greater than 3 inches stored less than 8 inches above the ground, and in and around all routes of ingress and egress. If a tortoise is discovered during this inspection or later in the day, the contractor will immediately cease all operations in the immediate vicinity of the tortoise and notify FHWA- CFLHD. The tortoise will be allowed to move on its own or the ADTB may move it with approval from FHWA-CFLHD.

14) Trenches. The contractor will cover, fence, or backfill all trenches and holes at the end of each work day to ensure desert tortoises and other species do not become trapped. If trenches or holes are to remain open during construction, they will be checked for tortoises at least four times a day, at the start of day, at mid-morning, early afternoon, and at the end of the work day. The trenches or holes will also be checked immediately before backfilling regardless of the season. Earthen plugs, with wildlife escape ramps on either side of the plug, with a slope of 1 vertical foot to 4 horizontal feet, will be provided in open trench segments every 0.25 mile or closer. If the ADTB or monitor is not allowed to enter the trench for safety reasons and a tortoise is found in the trench, a pole with a bag attachment, pool skimmer, or similar device will be used to remove the tortoise.

15) Litter-control. A litter-control program shall be implemented by the contractor to keep ravens and other predators from being attracted to the project site and thereby increasing the potential for predation on tortoises nearby. This program will include the use of covered, raven-proof trash containers (bins and dumpsters), removal of trash from the construction

2024-0057088-S7 11 site to the trash containers at the end of each workday, and property disposal of trash in a designated landfill or transfer facility. Vehicles hauling trash to the landfill or transfer facility must be secured to prevent litter from blowing out along the road.

16) Dust control. Water applied for dust control shall not be allowed to pool. This can attract desert tortoises. Similarly, leaks on water trucks and water tanks will be repaired to prevent pooling water. Between March 1 and October 31, an ADTB or monitor will be assigned to patrol each area being watered immediately after the water is applied and at approximately 60-minute intervals until the ground is no longer wet enough to attract tortoises.

17) Speed limit. All vehicle and equipment operators will maintain a maximum speed limit of 25 miles per hour through the work area and will follow the speed limits of roads accessing the work area. Vehicles will stay on designated roads and in established work areas.

Workers will not drive or park vehicles where catalytic converters can ignite dry vegetation.

18) Project vehicles. All project-related individuals shall check underneath stationary vehicles before moving them. Tortoises often take cover under vehicles. The contractor will only park and store equipment and materials, including stockpiling, overnight in previously disturbed areas or areas cleared by an ADTB or monitor.

19) Remuneration fees. The FHWA shall pay remuneration fees before construction to offset residual impacts to desert tortoises from project-related disturbance to desert tortoise habitat.

The current base rate is $1,103 per acre of disturbance, as indexed for inflation, effective March 1, 2024. The ADTB will document any GPS points, shapefiles, pictures of disturbance, and an overall map of all ground disturbance. The project is anticipated to permanently disturb a total of 5 acres of suitable desert tortoise habitat.

20) Use of off-site fill and plant material. The contractor will rehabilitate, reclaim, or revegetate disturbed areas outside the roadway using plants salvaged from the work area (e.g., cacti, yucca, creosote bush, white bursage), to the extent practicable. This will help facilitate habitat reclamation within a reasonable time frame. Reclamation may include recontouring the area, scarification of compacted soil, soil amendments, seeding, vertical mulch, and transplant of seedling shrubs or other plants. If necessary subsequent seeding or transplanting efforts may be required, should monitoring after the next growing season indicate that the original effort was not successful.

21) Herbicides. In compliance with FHWA’s Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects (FP-14), all soil, fill, plant seeds, and sediment and erosion control devices used on the project must be certified to be weed-free. Herbicides will not be used in the work area.

22) Project monitoring. The contractor will compile weekly reports of tortoise activity for the first month of construction and biweekly reports for remaining months and submit them to FHWA-CFLHD by the end of the workday at the end of each reporting period. These reports will describe daily inspection results, observations of tortoises or burrows and

2024-0057088-S7 12 methods used to address encounters, and specifically note the number of tortoises injured, killed, or removed from the work area. FHWA-CFLHD will submit the reports to Service and coordinate on issues that need to be addressed. FHWA-CFLHD will compile and submit a project completion report to Service within 30 days after the end of construction using information provided in the contractor reports.

23) Fire risk management. Workers shall not drive or park vehicles in areas where catalytic converters may ignite dry vegetation and shall ensure against igniting fires when smoking in natural areas. Fire protective mats or shields shall be used during grinding or welding.

24) Nighttime construction. In compliance with FHWA’s Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects (FP-14), there will be no nighttime project operations.

25) Desert tortoise exclusionary fencing. Temporary exclusion fence will be used at active construction staging sites. Fencing will be designed and installed according to current Service specifications (e.g., Chapter 8 of the Service 2009 Field Manual) There are a range of commercially available materials developed for wildlife exclusionary fence that are appropriate for temporary use. FHWA-CFLHD will submit a description of the materials to be used for temporary tortoise fencing to the Service for review and approval. The ADTB will inspect temporary fence daily and report any repair needs to FHWA-CFLHD. Any fence repairs or adjustments will be made within 24 hours of the reported breach.

Mojave Desert Tortoise Activity Season Definition

Various Mojave desert tortoise minimization measures within this biological opinion, reference tortoise activity periods or seasons. Mojave desert tortoise most active and less/least active season definitions are provided below. However, it is important to note that desert tortoises may be observed above ground every month of the year depending on temperature and precipitation events.

The activity periods for the desert tortoise are generally defined by the geographic area (elevation, latitude, etc.), temperature, precipitation, breeding season, forage availability, and age class of the tortoise. Desert tortoise activity in a given area may vary from year to year depending on these factors; therefore, the activity seasons described below provide a general guideline, but climatic conditions and location must be considered when scheduling work activities by activity season.

Desert tortoise most active season: Desert tortoises are predicted to be most active when ambient temperatures are between 60 to 100 degrees Fahrenheit. Most desert tortoise activity is predicted to occur March through May, during monsoon precipitation events in the summer, and September through October.

Desert tortoise less/least active season: Desert tortoises are predicted to be least active when ambient temperatures exceed 100 degrees Fahrenheit or below 60 degrees Fahrenheit and during prolonged dry conditions; however, small tortoises have been observed during project monitoring when temperatures were as low as the upper 40s. Desert tortoise activity is generally the lowest between November to February and June to August.

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ANALYTICAL FRAMEWORK FOR THE JEOPARDY DETERMINATION

Jeopardy Determination

Section 7(a)(2) of the Act requires that Federal agencies ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of listed species. “Jeopardize the continued existence of” means “to engage in an action that 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 CFR 402.02).

The jeopardy analysis in this biological opinion relies on four components: (1) the Status of the Species, which describes the current range-wide condition of the Mojave desert tortoise, the factors responsible for that condition, and its survival and recovery needs; (2) the Environmental Baseline, which analyzes the condition of the desert tortoise in the action area, the factors responsible for that condition, and the relationship of the action area to the survival and recovery of the desert tortoise;

(3) the Effects of the Action, which determines all consequences to the desert tortoise caused by the proposed action that are reasonably certain to occur in the action area; and (4) the Cumulative Effects, which evaluates the effects of future, non-Federal activities, that are reasonably certain to occur in the action area, on the desert tortoise.

In accordance with policy and regulation, the jeopardy determination is made by evaluating the effects of the proposed Federal action in the context of the current status of the Mojave desert tortoise, taking into account any cumulative effects, to determine if implementation of the proposed action is likely to reduce appreciably the likelihood of both the survival and recovery of the desert tortoise in the wild by reducing the reproduction, numbers, and distribution of that species. Desert tortoise designated critical habitat does not occur in the action area so no adverse modification to desert tortoise designated critical habitat is expected to occur with implementation of the proposed Project.

STATUS OF THE SPECIES

Listing History

The Service listed the Mojave population of desert tortoise (all desert tortoises north and west of the Colorado River in Arizona, Utah, Nevada, and California) as threatened on April 2, 1990 [55 Federal Register 12178].

Recovery Plan

In the revised recovery plan for the desert tortoise, the Service (2011) identified the need for “conservation areas” to protect existing desert tortoise populations and habitat. Box 2 and Figure 2 in the recovery plan (Service 2011) describe and depict these areas in a generalized manner, respectively.

The revised recovery plan lists three objectives and associated criteria to achieve delisting. The first objective is to maintain self-sustaining populations of desert tortoises within each recovery unit into

2024-0057088-S7 14 the future. The criterion is that the rates of population change for desert tortoises are increasing over at least 25 years (i.e., a single generation), as measured by extensive, range-wide monitoring across conservation areas within each recovery unit and by direct monitoring and estimation of vital rates (recruitment, survival) from demographic study areas within each recovery unit.

The second objective addresses the distribution of desert tortoises. The goal is to maintain well-distributed populations of desert tortoises throughout each recovery unit; the criterion is that the distribution of desert tortoises throughout each conservation area increase over at least 25 years.

The final objective is to ensure that habitat within each recovery unit is protected and managed to support long-term viability of desert tortoise populations. The criterion is that the quantity of desert tortoise habitat within each conservation area be maintained with no net loss until population viability is ensured.

The revised recovery plan (Service 2011) also recommends connecting blocks of desert tortoise habitat, such as critical habitat units and other important areas, to maintain gene flow between populations. Linkages defined using least-cost path analysis (Averill-Murray et al. 2013) illustrate a minimum connection of habitat for desert tortoises between blocks of habitat and represent priority areas for conservation of population connectivity.

Threats

The threats described in the listing rule and both recovery plans (Service 1994, 2011) continue to affect the species. 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, such as proliferation of roads and highways, off-highway vehicle activity, wildfire, and habitat invasion by non-native invasive plant species.

We remain unable to precisely quantify how particular threats affect desert tortoise populations relative to other threats. The assessment of the original recovery plan emphasized the need for a better understanding of the implications of multiple, simultaneous threats facing desert tortoise populations and of the relative contribution of multiple threats on demographic factors (i.e., birth rate, survivorship, fecundity, and death rate; Tracy et al. 2004).

For example, we have long known that the construction of a transmission line can result in the death of desert tortoises and loss of habitat. We have also known that common ravens (Corvus corax), known predators of desert tortoises, use transmission line pylons for nesting, roosting, and perching and that the access routes associated with transmission lines provide a vector for the introduction and spread of invasive weeds and facilitate increased human access into an area. Increased human access can accelerate illegal collection and release of desert tortoises and their deliberate maiming and killing, as well as facilitate the spread of other threats associated with human presence, such as vehicle use, garbage and dumping, and invasive plants (Service 2011). Changes in the abundance of native plants, because of invasive weeds, can compromise the physiological health of desert tortoises, making them more vulnerable to drought, disease, and predation.

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Five-Year Reviews

Section 4(c)(2) of the Endangered Species Act requires the Service to conduct a status review of each listed species once every 5 years. The purpose of a 5-year review is to evaluate whether the species’ status has changed since listing (or since the most recent 5-year review); these reviews, at the time of their completion, provide the most up-to-date information on the range-wide status of the species.

The Service’s (2022) second 5-year review of the status of the desert tortoise summarizes the information from its initial 5-year review (Service 2010) and describes substantive new information since 2011 (from the release of the updated recovery plan) relative to changes in threats, conservation measures, and regulatory mechanisms that pertain to the five listing factors outlined in section 4(a)(1) of the (Endangered Species) Act. For this reason, we are incorporating the 5-year review of the status of the desert tortoise (Service 2022b) by reference to provide most of the information needed for this section of the biological opinion; because it contains background information that is not in the recent document, we have also incorporated the 2010 5-year review by reference. The following paragraphs provide a summary of the relevant information in the most recent 5-year review. All references to “the 5-year review” in this section of the biological opinion are to the most recent document (Service 2022b), unless otherwise noted.

The 5-year review is replete with references to numerous studies and reports. We have not included references to those studies and reports in the following summary; the full citations are available in the 5-year review.

The 5-year review notes that while the Mojave distinct population segment of the desert tortoise was elevated to species status in 2011 as Gopherus agassizii, with most desert tortoises east of the Colorado River recognized as G. morafkai, “nine local populations that include G. agassizii or hybrids with G. morafkai have been genetically identified east of the Colorado River in Arizona.”

The 5-year review recommends evaluating the federal listing status of the Mojave desert tortoise relative to its current taxonomy and distribution.

In the revised 5-year review, the Service concluded that the “condition of most threats is similar to that described in the previous (2010) status review” and summarized the new information within the context of the five listing factors outlined in section 4(a)(1) of the Endangered Species Act. We summarize that information below.

Factor A: Present or Threatened Destruction, Modification, or Curtailment of Habitat or Range

Various types of anthropogenic impacts continue to cause the loss of desert tortoise habitat. The Service has issued biological opinions or incidental take permits for approximately 96,300 acres of utility-scale solar energy development in occupied desert tortoise habitat. Solar development has largely occurred outside of desert tortoise conservation areas, as described in the recovery plan (Service 2011).

The 5-year review also describes the Marine Corps’ expansion of training onto approximately 167,982 acres of public and private land the Department of Army’s plans to expand activities onto

2024-0057088-S7 16 approximately 62,045 acres of its western training area in the near future. These activities are in the Western Mojave Recovery Unit.

Legal and illegal cannabis cultivation is causing smaller scale, more widely distributed losses of habitat, particularly in the Western Mojave Recovery Unit; illegal operations are likely to indirectly affect additional habitat because of various types of waste.

Wildfires fueled by invasive grasses have burned extensive areas of desert tortoise habitat. For example, fires in 2020 occurred in desert tortoise habitat in the Mojave National Preserve (Dome Fire, 43,273 acres), Nevada (Meadow Valley Fire, 23,500 acres), and the Red Cliffs Desert Reserve in the Upper Virgin River Recovery Unit (11,000 acres in several fires). The latter fire killed at least 25 desert tortoises.

The 5-year review notes that desert tortoises are “essentially absent” from habitat within 1 kilometer of areas with greater than 10 percent development; “development” includes urban areas, cultivated agriculture, energy facilities, mines and quarries, pipelines, transmission lines, roads and railroads.

Approximately 5 percent of modelled desert tortoise habitat within conservation areas had development levels that exceeded this threshold. See Table 3 and Figure 7 in the 5-year review.

Desert tortoise populations declined in conservation areas where the density of paved and unpaved roads exceeded 0.75 kilometer per square kilometer; population trends varied at lower density of routes. See Figure 8 in the 5-year review.

Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

The 5-year review notes that the Service continues to have little information on threats under Factor B. However, the potential for negative impacts to desert tortoise populations exists from collection and deliberate maiming/killing as a result of human access, vehicles on paved/unpaved roads, and non-motorized recreation. The 5-year review also notes that the effects of research activities permitted for the purposes of enhancing the recovery and conservation of the desert tortoise have been minor while providing valuable information that can be used to recover and improve management of the desert tortoise.

Factor C: Disease or Predation

The 5-year review notes that “current research suggests that direct disease management of wild (desert) tortoise populations is less important … than managing factors that affect their habitat and its capacity to support healthy (desert) tortoises. However, management of disease when translocating desert tortoises between populations remains important. As an example of managing habitat, red brome (Bromus rubens), which is a non-native invasive plant, negatively affects the health and survival of juvenile desert tortoises.

Badgers (Taxidea taxus), coyotes (Canis latrans), kit foxes (Vulpes macrotis), dogs (Canis familiaris), common ravens, and red-tailed hawks (Buteo jamaicensis) prey on desert tortoises.

Badgers can have severe effects on desert tortoise populations at the local level; DNA analysis of scats suggest that badgers, coyotes, kit foxes, dogs, and red-tailed hawks may prey on desert tortoises more frequently than previously thought.

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Common ravens, because their populations have greatly increased through human subsidies, severely affect the recruitment of desert tortoises into the breeding population through predation on small individuals. In California, management includes the broad-scale removal of common ravens from critical habitat of the desert tortoise.

Factor D: Inadequacy of Existing Regulatory Mechanisms

The Bureau continues to face challenges in managing compliance with use of its off-highway vehicle network in the Western Mojave Recovery Unit. As of 2019, the Bureau documented 24,518 kilometers of ground transportation linear features in this area, which is more than 2.5 times the 9,651 kilometers designated as open or limited. The Bureau has an active program of restoring unauthorized routes and signing open routes.

Unauthorized cattle grazing continues within the Gold Butte National Monument in Nevada. We discussed cannabis farming in California previously in this section.

Factor E: Other Natural or Manmade Factors Affecting its Continued Existence

The 5-year review notes that, in the southwestern United States, 2000 through 2021 was the driest 22-year period in over 1,200 years; drought is likely to continue beyond 2022. Drought reduces the amount of annual plant forage for desert tortoises and, over longer times, will kill shrubs that desert tortoises rely on for cover.

Increased temperatures may affect hatchling sex ratios. Changes in climate may shift the timing of egg production and extend the egg-laying period. This change in egg production may not compensate for changes in the environment, such as the length of time eggs spend above their critical thermal maximum temperature and whether forage is available to support the production of eggs and forage for hatchlings. If climate change results in an overall decrease in reproduction, human-subsidized predation on young desert tortoises, particularly by common ravens, would exacerbate issues with the recruitment of desert tortoises into the breeding population.

Synthesis

Given the reproductive ecology of the desert tortoise, measurable increases in the size of populations will require years.

The Management Oversight Group for the desert tortoise “has taken steps to prioritize and implement actions that would be most effective at facilitating recovery across the range.” The Departments of Defense and the Interior have initiated a Recovery and Sustainment Partnership with the goal of implementing actions that would accelerate recovery of the desert tortoise while reducing the regulatory burden on military installations. The action plan focuses on identifying ways to accelerate habitat restoration, fencing conservation areas and roadways, and addressing unauthorized routes in the Western Mojave Desert Recovery Unit.

In California, the Bureau’s Desert Renewable Energy Conservation Plan Land Use Plan Amendment to the California Desert Conservation Act Plan of 1980 included numerous conservation and management actions that addressed issues relevant to the desert tortoise. As part of

2024-0057088-S7 18 the land use plan amendment, the Bureau established new limits on ground-disturbing activities of 0.1–1.0 percent relative to its lands within desert tortoise conservation areas and mapped linkages between these areas. The land-use plan amendment also increased the amount of land that the Bureau manages for conservation in California (e.g., areas of critical environmental concern, California Desert National Conservation Lands, etc.) from 6,118,135 to 8,689,669 acres. All of these areas are not within desert tortoise habitat; however, management as conservation areas will likely benefit desert tortoises indirectly because conservation management would limit subsidies to common ravens and other indirect effects.

The threats that led to the listing of the desert tortoise (i.e., the five-factor analysis required by section 4(a)(1) of the Endangered Species Act) continue. The status of the desert tortoise has continued to decline and most of the previously identified threats continue to affect populations.

In the 5-year review, the Service concluded by recommending that the status of the desert tortoise as a threatened species be maintained because of the large extent of its range and a total number in the “hundreds of thousands of individuals (all size classes) at last estimate.”

Recommendations for Future Actions

The 5-year review provided eight recommendations for the highest priority actions over the next 5 years. These recommendations are from the revised recovery plan (Service 2011); their full text is in the 5-year review.

1. More aggressive implementation of habitat restoration, targeted predator control and limitation of subsidies, fencing priority stretches of highways, fire management planning and implementation, and environmental education;

2. Maintaining landscape connectivity and the resilience of desert tortoise conservation areas by managing all desert tortoise habitat for persistence and connectivity, limiting landscape-level disturbance across habitat managed for the desert tortoise by extending surface-disturbance caps similar to those enacted by the Bureau in California to the rest of the Mojave desert tortoise’s range, maximizing passage under roads, and adapting management based on information from research on: the effects of climate change on desert tortoise habitat, distribution, and population connectivity; the effects of large-scale fires, especially within repeatedly burned habitat, on desert tortoise distribution and population connectivity;

the ability of solar energy facilities or similar developments to support desert tortoise movement and presence by leaving washes and native vegetation intact; and the design and frequency of underpasses necessary to maintain functional demographic and genetic connectivity across roads and highways;

3. Increasing law enforcement efforts across the range of the desert tortoise, especially within conservation areas to minimize impacts of habitat destruction and degradation as a result of unauthorized off-highway vehicle use, unpermitted cannabis farms, and trespass grazing;

4. Using population augmentation to help achieve recovery criteria in each of the five recovery units according to the Service’s population augmentation strategy;

5. Updating the taxonomy, distribution, and listed status of the species, which we discussed previously in this section;

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6. Incorporating updated population trend analysis and climate change and land-use modeling into the next 5-year review to inform management strategies under a framework for ecological adaptation;

7. Sustaining and more fully implementing range-wide monitoring efforts; and

8. Developing a revised spatial decision support system to improve models of threats, recovery actions, and demographics, using up-to-date underlying geospatial data, evaluation of prior conceptual models, and improved operationalization of recovery action terminology.

Core Criteria for the Jeopardy Determination

When determining whether a proposed action is likely to jeopardize the continued existence of a species, we are required to consider whether the action would “reasonably 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 Code of Federal Regulations 402.02). We have used the best available information to summarize the status of the desert tortoise with respect to its reproduction, numbers, and distribution.

Reproduction

In the previous 5-year review, the Service (2010) notes that desert tortoises increase their reproduction in high rainfall years; more rain provides desert tortoises with more high quality food (i.e., plants that are higher in water and protein), which, in turn, allows them to lay more eggs.

Conversely, the physiological stress associated with foraging on food plants with insufficient water and nitrogen may leave desert tortoises vulnerable to disease and the reproductive rate of diseased desert tortoises is likely lower than that of healthy animals.