The Federal Energy Regulatory Commission (FERC) has requested in a February 10 letter that the U.S. Fish and Wildlife Service (FWS) reinitiate formal consultation with Atlantic Coast Pipeline, LLC (ACP, LLC) to develop a new Biological Opinion (BO) and Incidental Take Statement (ITS) on the company’s proposed pipeline.  The BO and ITS for the ACP, required under Section 7 of the Endangered Species Act (ESA), was vacated for the second time by the Fourth Circuit Court of Appeals in July 2019 (see ABRA Update #239 for more).  Because of the Fourth Circuit’s action, construction on the ACP ceased in December 2018 and ACP, LLC has indicated it would not seek to resume construction until a new BO and ITS was approved.

The Southern Environmental Law Center (SELC) wrote to FWS in a February 11 letter on behalf of its clients (Defenders of Wildlife, Sierra Club and Virginia Wilderness Committee) in the legal challenge to the ACP’s BO and ITS, contending that the “FWS cannot complete consultation on the ACP until it knows the final route of the pipeline.” The SELC letter points out that the project’s route is in question because of last year’s decision of the Fourth Circuit Court of Appeals in Cowpasture River Preservation Ass’n v. Forest Service ruling that approval of the pipeline to cross the Appalachian Trail was illegal (see related story below).

Continuing, the letter states:

“. . .  a route will not be decided until the Forest Service assesses, and potentially chooses, off-forest alternatives. That will require at least the Forest Service, and potentially FERC, to go back through the process of issuing approvals including offering comment and administrative objection opportunities. That is unlikely before Fall 2020 at the earliest and potentially not until significantly later. Meeting consultation requirements before the path of the project is known is not possible making reinitiation of formal consultation premature at this point.”

Another question raised in SELC’s letter is the impact the project would have on the endangered clubshell mussel.  The FWS had previously raised concerns about the clubbshell population in Hackers Creek, located near Buckhannon, West Virginia. SELC notes that to address the problem, FWS authorized ACP, LLC to relocate the clubshell population to a place out of the path of the pipeline.  The effort failed when nearly all of the mussels removed from Hackers Creek died in captivity, thus making the preservation of any remaining clubshell mussels in Hackers Creek critical.

SELC’s letter also argues that the formal consultation should not proceed until the FWS concludes its assessment of the impacts of the project on the candy darter, a species recently added to the ESA.  In a January 25 letter to FWS, ABRA raised several questions with the agency about the status of its evaluation of projects affecting the candy darter habitat, including the ACP and Mountain Valley Pipeline.  ABRA’s letter cites the recent decision by the Forest Service to cancel a major timber harvesting project in West Virginia due to habitat concerns related to the candy darter.

FERC Restarts New Fish and Wildlife Permit Process for ACP
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