An agreement was announced Thursday between the Heritage Arts Foundation and the U.S. Fish and Wildlife Service regarding the accidental deaths of two desert tortoises on an access road leading to the foundation's $18 million Tuacahn amphitheater and performing arts complex west of Ivins.
Doug Stewart, executive director of the Heritage Arts Foundation, said, "We are satisfied that the agreement allows for our construction and programs to proceed on schedule, including the opening of the arts complex next April, followed by the premiere of an outdoor musical production, "Utah!"The foundation agreed to implement short-term protective measures, including a tortoise-proof fence on either side of the 11/3-mile road between Ivins and the Tuacahn site, and two full-time monitors to walk the fence on an ongoing basis. The city of Ivins has also agreed to enforce a 20-mph speed limit on the city-owned road.
The agreement calls for the Heritage Arts Foundation to apply for its own individual Section 10 Permit (Habitat Conservation Plan), which, when granted, will allow for long-term compliance with the Endangered Species Act. The agreement guarantees that if the Washington County Habitat Conservation Plan is approved in advance of the foundation's individual plan, the Tuacahn project would fall under it.
The Fish and Wildlife Service agreed that any mitigation relating to the foundation's conservation plan would not go beyond the approved Washington County plan.
A fine of $20,000 was also imposed on the foundation - $10,000 for each dead tortoise.
The dispute arose in May when the foundation reported the two dead tortoises. Almost immediately, the foundation was notified it was under investigation for possible violation of the Endangered Species Act. The foundation voluntarily closed the road to vehicles for three weeks, during which time construction crews either walked, biked or rode horses to the site. Ivins finally ordered the road reopened, despite a strong protest from the Fish and Wildlife Service.
Negotiations between the foundation and the wildlife service have been ongoing for the past six weeks.
"The final hurdle to the settlement related to the protocol for the biological study needed in order to apply for a Section 10," said Stewart. "We had such a study done on our 80-acre site in 1991 in which no sign of tortoise was found. This study was accepted by the Fish and Wildlife Service and allowed us to proceed with construction. We saw no reason to any study other than on the access road, which we were led to believe up front was the only issue."
One compromise to this stumbling block was finally reached on Tuesday, in which it was agreed that the site would only be studied as a "zone of influence" to the road, and that if a tortoise is found, the Fish and Wildlife Service will accept the least burdensome mitigation.
Stewart said he would be highly suspicious if a tortoise is found.
"I would suspect mischief. I have walked that land hundreds of times in the past three years and have yet to see the slightest sign of one's presence," he said.
"It has been an exhaustive and expensive process," he added. "We estimate the cost of these two dead tortoises found on the road to be well over $200,000 when we add up attorneys' fees, fencing, hiring of monitors, construction down time, overhead and the imposed fine - money we would have rather spent on scholarships for worthy young people attending the Tuacahn Arts Center."