UPDATE on MVP — Renewed Permits are Coming Under Challenge in Court

by Duane Nichols on October 31, 2020

The rugged mountains and many streams are readily damaged by large pipeline projects

Another lawsuit filed against bogged-down Mountain Valley Pipeline

From an Article by Laurence Hammack, Roanoke Times, October 27, 2020

ROANOKE — Two endangered species of fish — the Roanoke logperch and the candy darter — could be pushed closer to extinction if a natural gas pipeline is allowed to invade their waters, according to a legal challenge filed Tuesday.

A coalition of environmental groups asked a federal appeals court to review a biological opinion from the U.S. Fish and Wildlife Service, which found last month that construction of the Mountain Valley Pipeline is not likely to jeopardize protected fish, bats and mussels.

It was the latest in a string of lawsuits that have long delayed work on the 303-mile pipeline.

Also on Tuesday, the Sierra Club and 10 other environmental and conservation groups asked the Fish and Wildlife Service to stay its approval, one of several needed for the project to move forward.

In a letter seeking the stay, the groups contend that the biological opinion failed to adequately consider how fish would be affected by increased sedimentation caused by the steel pipe crossing hundreds of streams, or how the Indiana and northern long-eared bats would survive the clearing of forests they inhabit.

“These imperiled species are highly vulnerable to precisely the impacts that the Project would inflict,” Elly Benson, a senior attorney with the Sierra Club, wrote in the letter.

Work on the controversial pipeline was put on hold a year ago, after the same environmental groups filed a legal challenge to Fish and Wildlife’s first biological opinion, issued in 2017. After a nearly yearlong review, the agency last month issued its second approval — which was again challenged Tuesday.

Benson’s letter asked the agency to act on its request for a stay “as soon as possible,” as construction crews begin to mobilize along the pipeline’s route from northern West Virginia, through Southwest Virginia, to connect with an existing pipeline near the North Carolina line.

A spokeswoman for the Fish and Wildlife Service would only say that the request and court papers were under review. The Sept. 4 biological opinion was the first of three sets of permits — set aside by litigation filed with the 4th U.S. Circuit Court of Appeals — to be regained by Mountain Valley.

Three weeks later, the U.S. Army Corps of Engineers decided to reissue permits allowing the buried pipeline to cross nearly 1,000 streams and wetlands, either by trenching through or boring under the water bodies. A legal challenge led by the Sierra Club quickly followed.

The 4th Circuit then temporarily stayed the stream-crossing permits while it considers the case.

In an email Tuesday, a Mountain Valley spokeswoman said the “comprehensive” biological opinion includes previously submitted and new data. The 200-plus page document exceeds regulatory requirements and addresses earlier issues raised by the court, Natalie Cox said.

“We are not surprised that the Sierra Club and other organizations filed this action, as more often than not their stated opposition is to the project itself rather than to specific details of the permits being challenged,” her email stated.

Mountain Valley has said it plans to have the pipeline finished by early next year. But if the biological opinion is stayed, it would encompass much more of the construction area than is covered by the other suspended permits. The stream crossings account for less than 10 miles of the 303-mile pipeline. And while the U.S. Forest Service has yet to rule on whether Mountain Valley can pass through the Jefferson National Forest, that segment is just 3.5 miles.

The Sierra Club’s letter says that In addition to bats and fish, two kinds of freshwater mussels — the clubshell and snuffbox — would be threatened.

Since the first opinion came out in 2017, the candy darter has been added to the list of endangered species. The environmental groups take issue with the conclusion that the colorful fish would not be hurt by boring under the Gauley River in West Virginia and Stony Creek in Giles County, among other things.

As for bats, the Fish and Wildlife Service improperly downplayed the effects of cutting down roost trees to clear a 125-foot-wide right of way for the pipeline, the letter states.

Joining the Sierra Club in Tuesday’s litigation were Appalachian Voices, Wild Virginia, the West Virginia Rivers Coalition, Preserve Giles County, Preserve Bent Mountain, the West Virginia Highlands Conservancy, the Indian Creek Watershed Association, Defenders of Wildlife, the Chesapeake Climate Action Network and the Center for Biological Diversity.

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