By John McFerrin

The Mountain Valley Pipeline has taken another step toward final approval: the United States Fish and Wildlife Service has issued an opinion that the pipeline will not unduly imperil endangered species.

This opinion is not an approval of the pipeline. The Federal Energy Regulatory Commission (FERC) makes the overall decision on whether the pipeline goes forward. The U.S. Army Corps of Engineers makes the decisions on water crossings that the pipeline might make. The National Forest Service will decide if it may cross the Jefferson National Forest. The law assumes that neither FERC, the Corps of Engineers, nor the Forest Service knows enough about endangered species to make an informed opinion on the effect the pipeline would have.  It requires that the Fish and Wildlife Service issue what is called a Biological Opinion, giving its view on whether the pipeline “is likely to jeopardize the continued existence of the [endangered] species.”

Now that the Fish and Wildlife Service has given its opinion that the pipeline is not likely to jeopardize the continued existence of endangered species, these other agencies are free to go ahead with their decisions on whether to approve the pipeline or not.

This is not the Fish and Wildlife Service’s first rodeo. It had previously looked at (or at least glanced at) the question of how the pipeline would affect endangered species. It considered how the Mountain Valley Pipeline would affect the Virginia spirea, the Roanoke logperch, the candy darter, the Indiana bat, and the northern long-eared bat. In that earlier look, it concluded that the pipeline would not jeopardize the existence of these species.

A group of citizen organizations—including the West Virginia Highlands Conservancy—appealed that decision by the Fish and Wildlife Service to the United States Court of Appeals. 

The Court of Appeals ruled that the Fish and Wildlife Service had not done an adequate job of evaluating the impact of the pipeline on the candy darter and Roanoke logperch. While it did not specifically rule that the Fish and Wildlife Service had failed to properly consider the other three species, it strongly hinted that this was true.

It is not the court’s job to figure out the effect the pipeline would have on endangered species. Its job is to make sure that the Fish and Wildlife Service considered everything it should have considered and made a thorough evaluation of all the information. Because the court believed the Fish and Wildlife Service did not make a proper evaluation, it invalidated the opinion and told the Fish and Wildlife Service to try again.

Now the Fish and Wildlife Service has tried again. After performing a review which it hopes will meet legal requirements, it has once again concluded that the pipeline will not jeopardize the existence of endangered species.

As proposed, the Mountain Valley Pipeline would stretch 302 miles from West Virginia into Virginia. It would cross more than 11,000 streams and disturb 6,951 acres of land, including 4,168 acres of soils that have potential for severe water erosion. Nearly one quarter of the proposed pipeline will cross slopes that are greater than 30 percent.

Both the candy darter and the Roanoke logperch are particularly susceptible to erosion and the resulting siltation. The Roanoke logperch makes its living rummaging around on gravely stream beds, flipping over little rocks, gobbling up whatever bugs it finds. It lays its eggs on gravel stream beds as well. If the gravel is covered with silt, it can’t do either of these things.

The candy darter is also intolerant of sedimentation. Its historic decline has likely been related to excessive sedimentation. It faces the additional problem of being a homebody. Faced with excessive sedimentation, the Roanoke logperch will move to another area if possible. The candy darter will not.

The bat species that are the subject of the opinion routinely roost and give birth in trees.  

The Fish and Wildlife Service’s opinion acknowledges that the Mountain Valley Pipeline will have an effect upon the endangered species that are the subject of the opinion. Part of the construction is cutting down trees. Since some of these trees are in known or assumed bat habitat, that habitat will be diminished. The Opinion acknowledges that the construction will increase sedimentation, embeddedness, and water temperature while decreasing dissolved oxygen, adversely affecting the endangered fish.

The Endangered Species Act does not, however, prohibit every activity that will have an adverse impact upon an endangered species. As the Fish and Wildlife Serve says in its opinion, its goal is to encourage species survival; it defines survival as “the condition in which a species continues to exist into the future while retaining the potential for recovery.” In the case of the candy darter, for example, the Mountain Valley Pipeline will probably have an effect upon several individuals but, in three to five years, the effects of the construction will largely be gone, and the species will have survived.

In addition to the prohibition upon jeopardizing the survival of a species, the Endangered Species Act also prohibits the “taking” (euphemism for killing) of an individual of the species. One could not, for example, kill an individual candy darter even if that single killing would have a trivial effect upon the survival of the species.  

The Act addresses this by what is called an “incidental take permit.” Such a permit is appropriate when killing the endangered species is not the goal of a project but only an incidental. With such a permit, someone could kill a limited number of members of an endangered species which happen to be in the pathway of a project such as the Mountain Valley Pipeline.

The opinion that the Fish and Wildlife Service has issued in this case estimates how many of the various species will be harmed or killed by the project and recommends that an incidental take permit be issued. As a condition of any incidental take permit, the Fish and Wildlife Service recommends some measures that the Mountain Valley Pipeline must take to avoid more extensive “taking.”

To read the entire Opinion, go to eLibrary | File List (ferc.gov) and click on the link. At 483 pages it is a whopper (cf. Lord of the Rings, 1191 pages for all three volumes; To Kill a Mockingbird, 291 pages) but there is a lot of information.