“We want to develop a common understanding of where we’re at,” Mike Senn, U.S. Fish and Wildlife Service Field Supervisor told the Mesquite City Council at its meeting, Tuesday, Nov. 10 about the Virgin River Habitat Conservation and Recovery Plan (VRHCRP) that’s been in the works for over 13 years.

The city is required to develop and implement the Plan under the Endangered Species Act as part of conditions set forth under the Mesquite Lands Act of 1986. As part of the Lands Act, $10 million was set aside to develop the plan which began in the early 2000s but has been plagued by setbacks and delays ever since.

According to Senn, approximately $7 million of the $10 million has already been spent on administrative and consultant fees.

Clark County adopted a Multi-Species Habitat Conservation Plan (MSHCP) in 2002 that covers a majority of endangered species including the desert tortoise. However, it chose not to include mitigation for two fish in the Virgin River that FWS considers critical. The County plan requires all developers to pay a $550 fee per graded acre that’s used for species protection.

Even though the city has never completed or formally adopted its VRHCRP, it has been collecting a second $500 fee per gross acre of land developed since 2007. Mesquite is the only place in Clark County that collects two mitigation fees and is required to abide by two different conservation plans.

According to backup material provided by Richard Secrist, Mesquite Development Services Director, FWS biologists determined in 2014 that the biggest threat to the two Virgin River fish comes from invasive species swimming up from Lake Mead with minor impacts from water quality and habitat disturbances emanating from irrigation diversion.

Also according to Secrist, Marci Henson, Clark County Manager of the MSHCP stated in late 2014 that “she didn’t think the development in Mesquite was impacting fish. She said they and their consultants made the case that there was no impact to the fish in the Virgin River, so they didn’t propose including them in the second phase of their plan. Apparently, FWS bought off on their argument because they approved the list of proposed species covered by the proposed (Clark County) plan that did not include fish species.”

Addressing the county’s decision to not include the fish in its conservation plan, Senn said, “The Service (FWS) can’t make the county include the fish species in their plan any more than we can make this city get an HCP (habitat conservation plan). It’s an applicant-driven process.”

Senn said there’s two ways to operate under the Endangered Species Act. A Section 10 permit can “range from years to decades. Once it’s issued it’s considered a deal. The FWS cannot come back and say we want you to pay more money.” Mesquite has been working on its plan under Section 10 guidelines since the beginning.

A Section 7 permit is only good for the “life of the project” which is much less time. “If something happens with the project or a new species gets listed, we have to re-consult on the project,” Senn explained. In April 2014 he requested the city halt its work under Section 10 and develop its conservation plan under Section 7.

Senn’s office provided an analysis showing the City’s cost would range from $1.998 million in 10 years to $5.458 over 30 years to mitigate effects on the two fish species.

According to a Las Vegas Review Journal article published Nov. 4, Representative Cresent Hardy (R-NV) introduced legislation in the House and Senator Dean Heller (R-NV) introduced a companion bill in the Senate that would amend public lands laws allowing the City of Mesquite to access funds to implement the multiple-species habitat conservation plan. Both pieces of legislation are supported by all Nevada federally elected officials on both sides of the aisle.

The article says “During a hearing on the bill, Rep. Tom McClintock, R-Calif., who chairs the Federal Lands subcommittee that held the hearing, was blunt about his support for the legislation over any administration objections.

“The bill, he said, is “only before us because of bureaucratic pettifogging by various federal agencies.”

“McClintock said the U.S. Fish and Wildlife ordered the city of Mesquite to implement a multiple-species habitat conservation plan as a condition of proceeding with economic development projects. That plan, he noted, was to be paid for through funds raised in the sale of the federal land. But that arrangement changed last year, bringing the economic expansion plans to a standstill, he said.

“”These are bureaucratically created problems that never should have occurred in the first place,” he said.”

In response to a question from Councilman George Rapson, Senn explained that the FWS service wouldn’t interfere with development if the city agreed to develop a conservation plan. “I know this doesn’t sound like we’re trying to help the city but the reality of the situation is that the Service can’t let the city continue to develop without a plan in place and having the incidental take coverage.”

Senn also told the council that the original $10 million set aside by the 1986 Lands Act was strictly for developing a plan and not for implementing it. He added that the pending legislation would allow some of the money to be used for implementation.

Rapson explained three alternatives available to the city. “We can continue with Section 10 development that gives us coverage in perpetuity or go with Section 7 which is less in the sense that it doesn’t protect us from lawsuits and can be changed at any time. Or the third alternative is to do absolutely nothing and ignore the whole process. That seems to be what Bunkerville, Moapa Valley and Clark County for some species seems to be doing. We can wait for someone to complain.”

“That’s a fair assessment,” Senn responded. “The third alternative must consider that we issued a Biological Opinion with the idea that the city would develop a plan. We would have to re-issue that or the Service could be litigated against. It sounds easy but there is a ripple effect.”

“We have no control over the invasive species (from Lake Mead),” Rapson reiterated. “Our run-off from irrigation is negligible or non-existent. Intuitively, it seems we don’t have a lot of risk of endangering the species from development. I would like to solve this problem.”

No other council member or the mayor took part in the discussion and no action was taken on issue.