Construction of the Mountain Valley Pipeline, should it continue, is not likely to jeopardize five endangered or threatened species of fish, bats and plants, a long-awaited federal authorization has concluded.
The U.S. Fish and Wildlife Service on Friday issued a revised biological opinion, which was essentially a rewrite of its finding in 2017.
After a legal challenge was filed by Wild Virginia and six other environmental groups last August, a federal appeals court stayed the original opinion. The Federal Energy Regulatory Commission then issued a stop-work order in October.
Following a nearly year-long reconsideration, the Fish and Wildlife Service released a 226-page opinion that found the massive project — which has run into repeated problems with erosion on steep mountain slopes — would not jeopardize protected species.
The finding applies to the Roanoke logperch, the candy darter — a second kind of fish that has been added to the endangered species list since 2017 — the Indiana bat, the northern long-eared bat and the Virginia spiraea, a flowering shrub native to southern Appalachia.
With the renewed permit in hand, Mountain Valley says it will resume work once the stop-work order is lifted.
Friday’s release of the biological opinion “exceeds regulatory requirements, protects natural resources and habitats, and provides a path forward for completion of this important infrastructure project,” company spokeswoman Natalie Cox wrote in an email. “We look forward to resolving the few remaining permitting issues, resuming forward construction, and completing the MVP project in early 2021.”
However, new legal challenges are likely for any authorizations given to the controversial 303-mile pipeline, which will transport natural gas at high pressure from the Marcellus and Utica shale formations to markets in the Mid-Atlantic and Southeastern parts of the country.
“This dirty, dangerous fracked gas project is years behind schedule, billions of dollars over budget, and was sued by the Commonwealth of Virginia for violating common sense environmental protections hundreds of times,” Joan Walker of the Sierra Club said in a statement.
“MVP has shown they can’t be trusted to build this pipeline anyway,” she said, “and they should wise up and walk away from this risky bet like Duke and Dominion did with the ACP [Atlantic Coast Pipeline].”
Before completing the $5.7 billion project, Mountain Valley still must obtain a renewed permit from the U.S. Army Corps of Engineers for the pipeline to burrow under nearly 1,000 streams and wetlands. Permission from the U.S. Forest Service is also required before the pipe can pass through about 3.5 miles of the Jefferson National Forest.
The permits were set aside after environmental groups filed legal challenges in the 4th U.S. Circuit Court of Appeals. As a result, construction has been delayed by about two years, while costs rose by nearly $2 billion.
In a statement Friday, the Fish and Wildlife Service said its revised opinion entirely replaces the one from 2017, and is based on “the best available scientific and commercial data.”
Since construction began in early 2018, however, there have been new threats to wildlife.
The opinion contains news that FERC requested emergency consultation with the Fish and Wildlife Service in February 2019, when a slip occurred in Wetzel County, West Virginia, not far from where the pipeline starts a route that takes it through Southwest Virginia.
A slip is a type of slope failure that results in a downward sliding of a mass of soil, rock, trees and other debris.
Mountain Valley was forced to cut additional trees not anticipated in the original opinion to repair a number of slips, which “adversely affected” the Indiana bat, according to the biological opinion.
“Bats could be killed, injured or forced to flee if an occupied roost tree is cut down,” the opinion stated. “We have no precise way to estimate how many individuals have been or will be injured or killed.”
Nonetheless, the Fish and Wildlife Service concluded that the pipeline was not likely to jeopardize the Indiana bat and other protected species in its path.
Federal law defines jeopardy as an action that “reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers or distribution of that species.”
The biological opinion included what’s called an incidental take statement, which limits the number of a protected species that can be harmed or killed unintentionally as part of an otherwise lawful activity.
Opponents of the pipeline say what damage has already been done will only be worsened if construction resumes.
“What we know is that the MVP has assaulted streams with tons of mud where populations of sensitive and rare species, the Roanoke logperch and candy darter, live and are at risk,” said David Sligh, conservation director of Wild Virginia.
“Further work on the pipeline can only add to the threats,” he said. “Findings by the Fish and Wildlife Service that fail to acknowledge that fact or allow the damage to continue are irresponsible.”
Some documents instrumental to the decision, such as an updated sedimentation analysis, were not included in the biological opinion, Sligh said.
Several months ago, Wild Virginia requested the documents under the Freedom of Information Act.
When the Fish and Wildlife Service declined to release the records, Wild Virginia filed a complaint in federal court that seeks to overturn the decision.
“If these decisions are well-founded,” Sligh said, “it seems strange that they would want to keep us from seeing all the facts.”
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