An unusual court attempt at a fight over the Churchill County Toad

Dixie Valley Frog.

Dixie Valley Frog. Patrick Donnelly/Center for Biological Diversity

RENO — In a highly unusual move in a legal battle over a geothermal plant in Churchill County and an endangered frog, the project’s developer is now asking a judge to allow it to scale back the original 80% plan approved by US land managers last November.

Both the US Bureau of Land Management and Ormat Technologies have filed motions to put the case on hold, citing the US Fish and Wildlife Service’s listing of the Dixie Valley frog in April as endangered on a temporary and emergency basis.

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

Ormat acceded to the request in an Oct. 31 filing, agreeing that the “legal landscape” had changed with the frog’s temporary listing—something the agency has done on an emergency basis only twice in the past 20 years.

The frog lives in the wetlands adjacent to the project about 100 miles 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 levels and temperatures of surface water that are crucial to the frog’s survival and sacred to the Falun Paiute Shoshone tribe.

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

The Center for Biological Diversity, which filed a petition for inclusion and sued to block the project, intends to oppose the application. An official response is due on November 9.

“What BLM proposes would be very unusual,” Patrick Donnelly, director of the center’s Great Basin Center, told the Associated Press. “Projects are typically evaluated on their own merits as stand-alone proposals, not segmented to meet the developer’s requirements and timeframe.”

The case has already made one trip to the Ninth US Court of Appeals and it seems likely that it will eventually return to its current legal track.

On August 1, the San Francisco Court of Appeals refused to halt the project. But later that day, Ormat agreed to halt construction until January 1, 2023. The Renault-based company later agreed to suspend all work in February.

The frog listing led to the requirement that the bureau consult with the Fish and Wildlife Service to ensure that the Ormat’s mitigation plan would not harm the frog or its habitat in violation of the Endangered Species Act.

“While BLM and Ormat have always maintained that … the project and its (mitigation) plan are sufficient to avoid, reduce or mitigate impacts to the frog and its habitat regardless of species list status, listing has begun mandatory, and an extensive consultation process with Ormat has begun,” Ormat’s lawyers wrote Monday. the service.

Ormat understands that building and operating a smaller project under a modified decision registry would be contingent on BLM’s compliance with the law and that any subsequent proposal to expand the project beyond the single power plant would require a separate review process, they said.

The BLM said in an Oct. 27 filing that it would expedite review of the revised plan and would expect to submit a biological evaluation of the proposal by March 31 to the FWS, indicating it could determine by August 2023 whether the plan complies with the law.

Ormat and BLM actually want the agency to approve the scaled-down version of the project, Donnelly said, before completing the mandatory consultation.

“We argue that this is illegal – putting the cart before the horse, because they don’t know if the FWS will approve the project or not,” he said. He said the group’s objections would remain the same “even for a facility of a fifth of the proposed size”.

Donnelly said the residency application indicates that “Urmat is desperate to avoid a judge’s ruling that geothermal energy is likely to affect nearby surface water sources.”

“No judge has ever done that,” he said. “The precedent will be huge—a watershed moment in permitting geothermal projects, in which BLM will have to face the reality head on, that geothermal energy is dangerous to hot spring ecosystems.”

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