By John McFerrin

            A coalition of environmental and citizen groups is challenging the findings of the Fish and Wildlife Service and how it determined that the Mountain Valley Pipeline would comply with the Endangered Species Act.           

Background

            The Endangered Species Act was enacted to protect and conserve endangered and threatened species and their habitats. Whenever any federal agency is faced with  an application for a permit for construction or other activity, it is required to determine if the activity is likely to jeopardize the continued existence of” a listed species or result in the destruction or adverse modification of designated critical habitat.  

            To make this determination in the case of the Mountain Valley Pipeline, the Federal Energy Regulatory Commission (FERC) consults with the Fish and Wildlife Service.  The Fish and Wildlife Service then issues what is called a Biological Opinion and Incidental Take Statement. It states the Fish and Wildlife Service’s opinion on whether or not the proposed activity is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.

            A determination that an activity will harm an endangered species does not mean that the activity is automatically prohibited. If the activity threatens the continued existence of a species then it is prohibited.  If it harms some members of an endangered species but does not jeopardize the continued existence of that species, then the Fish and Wildlife Service may issue what is known as an incidental take permit.

            An incidental take permit allows someone to “take” a limited number of individuals of an endangered species if the taking is incidental to another activity and not the goal of the activity.  “Take” is defined as the “harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting of a listed species”, or any attempt to engage in such conduct.

What happened here

            The endangered or threatened species that will be imperiled by the Mountain Valley Pipeline are the Small Whorled Pogonia, the Virginia Spiraea, the Roanoke Logperch, the Indiana Bat, and the Northern Long-eared Bat.  The Fish and Wildlife Service considered these species and concluded that construction of the Mountain Valley Pipeline was not likely to jeopardize the continued existence of the species.  Because of this finding, in the Fish and Wildlife Service’s opinion, the construction would not be absolutely prohibited by the Endangered Species Act.

            That the construction would not jeopardize the continued existence of the species is not the end of the story.  Even if the construction would not wipe out the whole species, the construction might kill (in the words of the Act “take”) some individuals.  If the goal of the project is not killing individuals but it is likely that some individuals will be killed by accident, then the Fish and Wildlife Service can recommend an Incidental Take Permit which allows this.

            In this case, the Fish and Wildlife Service said that for the plants (the Small Whorled Pogonia and the Virginia Spiraea) an Incidental Take Permit was not appropriate.  The Mountain Valley Pipeline will just have to avoid them.

            So far as the Roanoke Logperch is concerned, the pipeline will cross five streams where they are known or believed to exist.  The Fish and Wildlife Service assumes that at least some fish will be killed.  It recommends an Incidental Take Permit for a limited number of “takings.”

            With the Indiana Bat, the Fish and Wildlife Service acknowledges that it will be difficult to determine the number of bats killed.  They are small and the little corpses usually get lost.  The pipeline does disturb over three thousand acres that are suitable Indiana Bat habitat; bats will be killed.  Because killing bats is not the goal of the project, the Fish and Wildlife Service recommends issuing an incidental take Permit for a limited number of bats.

            The Fish and Wildlife Service acknowledges that sixteen acres of Northern Long Eared Bat habitat will be lost because it is within a quarter mile of Canoe Cave and Tawney’s Cave in Giles County, Virginia, and PS-WV3-Y-P 1 in Braxton County, West Virginia.  This will result in a taking of some individuals.  The Fish and Wildlife Service recommends an incidental take permit.

            The groups contend that the Fish and Wildlife Service was careless in its fast tracked review of the project.  It failed to accurately measure the pipeline’s impact on endangered species.  They say that the Fish and Wildlife Service failed in its obligation to protect endangered species.

            At the same time they filed the suit, the groups wrote a letter to the Fish and Wildlife Service.  In that letter, they pointed out that construction on the Mountain Valley Pipeline had already begun and would probably imperil endangered species.  The groups asked that the Fish and Wildlife Service suspend the Biological Opinion and Incidental Take Statement while the case is pending in court.  

It’s déjà vu all over again

            If all this sounds familiar, it should.  As reported in the August issue of The Highlands Voice, the United States Court of Appeals for the Fourth Circuit decided that the Fish and Wildlife Service was too haphazard and slipshod in how it assessed the impact that the Atlantic Coast Pipeline would have on endangered species.  Now groups say that the Fish and Wildlife Service was too haphazard and slipshod in how it assessed the impact that the Mountain Valley Pipeline would have on endangered species.  While one case does not a trend make, it appears that the Court is saying that the Fish and Wildlife Service has to do a better job.  While it is free to reach any conclusion the facts support, it needs to slow down and seriously consider all the facts before offering an opinion on how a project will affect endangered species.

Breaking News: FERC Gets Into the Act

       After the coalition of groups filed suit in the Court of Appeals for the Fourth Circuit (story right over there      ), the Federal Energy Regulatory Commission (FERC) has asked the Fish and Wildlife Service to review its Biological Opinion on the effects of the Mountain Valley Pipeline on endangered species.

       FERC is the big dog so far as approval of the pipeline is concerned.  It gives final approval.  As a general rule, its approval is conditioned upon approvals by the Fish and Wildlife Service, the Corps of Engineers, etc.  If FERC no longer has what it considers to be an adequate Biological Opinion from the Fish and Wildlife Service, then it would seem that its approval of the pipeline should no longer be valid.  FERC did not, however, order construction stopped.

       This development is parallel to, but different from, the development described in the story on the previous page.  There, the groups say the Biological Opinion on endangered species was flawed and ask that the Court tell the Fish and Wildlife Service to try again.

       Here, FERC has said that it thinks the Biological Opinion is flawed and asks the Fish and Wildlife Service to try again.

       In its letter to the Fish and Wildlife Service, FERC says that it has become aware of new information that might affect the Roanoke Logperch, Indiana Bat, and Northern Long-eared Bat.  It also noted that since the Biological Opinion the candy darter (Etheostoma osburni) was listed as endangered by Fish and Wildlife Service.  It is known to inhabit streams in the pipeline area and may be affected by the pipeline.