October 27, 2020

Via U.S. Mail and Email

Aurelia Skipwith Cindy Schulz

Director Field Supervisor
U.S. Fish and Wildlife Service Virginia Ecological Services
1849 C Street NW U.S. Fish and Wildlife Service
Room 3331 6669 Short Lane
Washington, DC 20240-0001 Gloucester, VA 23061
[email protected] [email protected]

Wendi Weber
Regional Director, Northeast Regional Office
U.S. Fish and Wildlife Service
300 Westgate Center Drive
Hadley, MA 01035-9587
[email protected]

Re: Request to Stay Biological Opinion and Incidental Take Statement for
Mountain Valley Pipeline (Docket CP16-10-000; Project #05E2VA00-
2016-F-0880 and #05E2WV00-2015-F-0046)

Dear Ms. Skipwith, Ms. Weber, and Ms. Schulz:

The undersigned groups request that the U.S. Fish and Wildlife Service (“FWS”) stay its
September 4, 2020 Biological Opinion and Incidental Take Statement (“BiOp”) for the Mountain
Valley Pipeline (“MVP” or “the Project”). Because the pipeline developer is currently authorized
to engage in construction activities that harm endangered species and their habitat, we ask that
you respond to this request for a stay as soon as possible.

Mountain Valley has already cleared thousands of acres of endangered bat habitat, and
ongoing and/or future construction would increase suspended sediment and sediment deposition
in miles of endangered fish habitat. The species at issue are in a precarious position. Virginia and
West Virginia hibernacula surveys indicate that Indiana bat (“Ibat”) populations have decreased
at least 95% in recent years. BiOp at 78. The Roanoke logperch (“RLP”) is “in danger of

2101 Webster Street, Suite 1300 Oakland, CA 94612 TEL: (415) 977-5500 FAX: (510) 208-3140 www.sierraclub.org
extinction throughout its range,” 1 and “[s]mall logperch populations could go extinct with minor
habitat degradation.” 2 For candy darter, “[t]he risk of extinction is high.” 3

These imperiled species are highly vulnerable to precisely the impacts that the Project
would inflict. “The most significant range-wide threats to the Indiana bat” include “habitat
loss/degradation” and “forest fragmentation.” 4 Roanoke logperch “are particularly susceptible to
siltation impacts,” MVP, 2017 Biological Assessment at 8-58, and candy darter “are particularly
sensitive to changes resulting from increased sedimentation.” BiOp at 110. The Project would
impact populations that are critical to species recovery. See, e.g., id. at 74 (“The Upper Gauley
and Middle New [candy darter] metapopulations are relatively free from hybridization, making
them essential to the recovery of the species.”).

Roanoke logperch

The BiOp contains a series of series of flawed assumptions and unexplained conclusions
regarding the Project’s impacts on these species. For example, the BiOp relies heavily on
unsupported predictions and presumed relations among soil erosion, sediment dynamics,
turbidity, instream habitat suitability, and fish responses (individual and population). FWS
references many uncertainties involved in assessing MVP impacts. See, e.g., BiOp at 97 (“The
effects to RLP will depend, in part, on the type, amount, and extent of sediments released into
the water column, the magnitude and duration of discharge, and background suspended sediment
concentrations in the waterbody.”); id. at 100 (“there are no studies on specific suspended
sediment concentrations (e.g., thresholds) and their effects on RLP”); id. at 101 (“Factors
influencing [suspended sediment concentration], exposure, and duration include waterbody size,
volume of flow, and the nature of the construction activity, construction methods, erosion
controls, and substrate and sediment particle size.”). FWS also states that the effects of previous
MVP construction activities on RLP are uncertain. Id. at 97 (“The available information does not
provide information about how long the sediment levels were elevated, exactly which reaches of
waterbodies were impacted, and details about the elevated levels….”).

The BiOp acknowledges impacts to RLP but then downplays their severity with vague
and conclusory statements. For example, the BiOp maintains that relocating is “not unusual” for
RLP and that shifting foraging areas (or having additional RLP shift into a foraging area) is a
behavior “to which the RLP is accustomed….” Id. at 99-100. FWS also omits discussion of

1
U.S. Fish and Wildlife Service, Roanoke Logperch (Percina rex) 5-Year Review: Summary and
Evaluation (2007) at 20, http://ecos.fws.gov/docs/five_year_review/doc1113.pdf.
2
U.S. Fish and Wildlife Service, Roanoke Logperch: Percina rex,
https://www.fws.gov/northeast/pdf/RoanokeLogperch.pdf.
3
U.S. Fish and Wildlife Service, Candy Darter Recovery Outline (Oct. 2018) at 5,
https://ecos.fws.gov/docs/recovery_plan/2018%20CDRecoveryOutline_1.pdf.
4
U.S. Fish and Wildlife Service, Indiana Bat (Myotis sodalis) 5-Year Review: Summary and
Evaluation (Sept. 2019) (hereinafter “Ibat 5-Year Review”) at 15.
2
impacts from crossings in the Blackwater River drainage, but FWS’s stated reasons for
concluding that no impacts to RLP are anticipated from these crossings are inadequate:
traditional presence/absence surveys have not been conducted, FWS cannot rely on eDNA
sampling to conclude RLP are not present, and time-of-year-restrictions (TOYR) for crossings
do not guarantee “no impacts.” Id. at 69. The BiOp also gives short shrift to impacts from
chronic sedimentation and long-term sediment deposition. And despite the project’s significant
sedimentation contributions, and FWS’s professed uncertainty regarding impacts, the monitoring
protocol fails to provide clear, measureable criteria for recognizing if species or habitat recovery
actually occurs. The monitoring protocol relies on suspended sediment concentrations; FWS
states that it is utilizing the framework in the Biological Effects of Sediment on Bull Trout and
Their Habitat – Guidance for Evaluating Effects to assess concentrations at which adverse effects
will occur. But the framework concludes that adverse effects to bull trout are anticipated “[w]hen
sediment concentrations exceed 40 mg/L over background for more than three hours
cumulatively” or “20 mg/L over background for over seven hours cumulatively.” BiOp,
Appendix C at 29. The BiOp, however, states that FWS expects adverse effects to RLP “[w]hen
sediment concentrations exceed 40 mg/L over background for more than 3 hours continuously”
or “20 mg/L over background for over 7 hours continuously.” BiOp at 101. FWS does not
sufficiently explain this discrepancy. (This concern applies equally to the candy darter.) In
addition, the monitoring protocol fails to monitor additional ecosystem components, such as
sufficiency of re-established vegetation, fish habitat quality, health of the benthic
macroinvertebrate community, or fish abundance.

Sediment-laden water from Bradshaw Creek entering the North Fork of the Roanoke River.
According to FWS’s Roanoke Logperch Recovery Plan, “[h]ighest priority should be
placed on reducing the quantity of silt entering the North Fork Roanoke….” 5 The MVP
“impact area” includes approximately 7 km in the North Fork Roanoke River. BiOp at 104.

5
U.S. Fish and Wildlife Service, Roanoke Logperch (Percina rex) Recovery Plan,
https://www.fws.gov/northeast/virginiafield/pdf/PARTNERS/longleaf_pine/logperch_recovery_pl
an.pdf.
3
 Candy Darter

The BiOp states that because Mountain Valley proposes to cross the Gauley River using
the microtunnel method, “no instream construction impacts or impacts to CD are anticipated at
this crossing.” BiOp at 73. FWS ignores the potential impacts of microtunneling on the candy
darter and its habitat at this location. Mountain Valley has acknowledged several such potential
impacts. See Variance Request D-35 (FERC Accession No. 20200508-5286) at 6 (discussing
requirement of two pits that are “typically closer to the feature being crossed than they would be
for an HDD,” which FERC has acknowledged can result in sediment runoff into the adjacent
waterbody 6); id. (acknowledging there is a “risk of collapse”); id. at 7 (acknowledging “the risk
of an inadvertent return”); id. at 8 (acknowledging that groundwater intrusion in the microtunnel
bore pits may result in the discharge of turbid water from the work area “and potentially mixing
with the Gauley River”); id. at 10 (acknowledging that fish are a “relevant biotic receptor[]” for
drilling fluid additives). Likewise, the risks associated with a “slower drilling rate,” id. at 7, and
a 50-foot bore pit depth (which would presumably increase the risk of groundwater intrusion and
involve a significantly larger spoil pile), id. at 72, have not been analyzed. Nor have additional
risks associated with “the possibility of encountering hard rock that cannot be penetrated by the
auger or cobbles that divert the bore away from the intended path,” 7 id. at 8, and difficult site
conditions. 8

Similar impacts can occur as a result of conventional bore, which is the proposed
crossing method for Stony Creek. BiOp at 24, Table 11; id. at 73. Conventional boring entails
excavating two pits, one on each side of the feature to be bored. While FWS states that this
eliminates construction activities “directly adjacent to the crossed stream” and “allows existing
riparian vegetation near the stream banks to remain in place,” id. at 73, the bore pits “are
typically closer to the feature being crossed due to design length constraints for a conventional
bore.” BiOp at 25. The Draft EIS for MVP’s Southgate extension discusses the environmental
impacts of boring, including to aquatic species:

Conventional bores require large entry and exit pit excavations at each end
of the bore pathway and therefore create the risk of sediment runoff
entering the adjacent waterbody. Of greatest risk to the waterbody is the
possibility of the borehole collapsing without warning. In such a case the
6
See Draft EIS for Mountain Valley Pipeline, LLC’s Southgate Project, FERC Docket No.
CP19-14-000 (July 2019) at 4-34.
7
See id. at 9 (“the resistivity data cannot preclude the possibility that unconsolidated materials
such as boulders and cobbles may exist within the path of the horizontal bore beneath the river”).
8
See, e.g., Supplements to Variance Request Nos. D-35 and G-12 (FERC Accession No.
20200514-5172) (“During field work, DAA field personnel attempted to collect resistivity data
on the north side of the Gauley River as well to evaluate the subsurface beneath the northern
bore pit. However, the full width of the Limits of Disturbance (LOD) was found to be full of
downed trees and very large boulders on a steep slope, with the underlying ground surface
inaccessible”).
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 bed of the waterbody could collapse and reroute the waterbody into the
bore pathway.

Draft EIS for Mountain Valley Pipeline, LLC’s Southgate Project, FERC Docket No. CP19-14-
000 (July 2019) at 4-34 (emphasis added). See also Pre-Construction Notification, Huntington
District (Jan. 2020) at Appendix F, section 1.1 (discussing potential “difficulties with
groundwater management, bore pit stabilization, and equipment ingress and egress”); id. at
section 7.4.2 (noting that Mountain Valley “considered the potential groundwater impacts as a
significant obstacle to boring the Greenbrier River… based on the potential pit depths of a
conventional bore.”); Tetra Tech, Trenchless Construction Feasibility Analysis: Pennsylvania
Pipeline Project (Dec. 2016) at 9 (water produced from dewatering conventional bore pits will
“temporarily lower the ground water table to some degree in the adjacent avoidance obstacle,
wetland, or waterbody”).

In addition, candy darter conservation needs include “sufficient water quantity and
velocities.” BiOp at 50. See also id. at 63 (“The proposed critical habitat is characterized as
having the following physical or biological features (PBFs) that are essential for the conservation
needs of the CD: … sufficient water quantity and velocities that support normal behavior,
growth, and viability of all life stages of the CD.”). Mountain Valley plans to withdraw water
from the Gauley River for hydrostatic testing, dust control, and hydroseeding at a location that is
“known to support” candy darter. Id. at 21, 72. 9 FWS’s conclusion that “no part of the proposed
action is predicted to… meaningfully alter water quantity or velocity within proposed critical
habitat” is not adequately supported. Id. at 139. The BiOp states that Mountain Valley
“anticipates” installing holding tanks near the withdrawal point to pull water over a longer
period, “commits” to placing temporary water intakes within pools rather than riffles, and “is
committed” to limiting withdrawals to 10% of the stream’s instantaneous flow. Id. at 22. As an
initial matter, these commitments do not appear to be binding, enforceable requirements.
Moreover, it is not clear that full compliance with these commitments would avoid impacts to the
candy darter or its habitat. Similarly, while the BiOp states that “[w]ater withdrawals are
conducted in compliance with conditions in the WVDEP Division of Water and Waste
Management’s Water Withdrawal Guidance Tool” that may minimize impacts to aquatic
organisms, id. at 72, FWS does not explain how compliance with those conditions ensures there
will be “no impacts” to the candy darter as a result of water withdrawals at the Gauley River
location. Id. at 72. The BiOp’s statement that “[p]roject subactivities in critical habitat subunit 2b
and 5b are not anticipated to affect PBF 1 or PBF 5 as no part of the proposed action is predicted
to … meaningfully alter water quantity or velocity within proposed critical habitat” is likewise
inadequately supported. Id. at 139.

9
The BiOp states that Mountain Valley “may also use water withdrawn from the sources in
Table 10, except for the Gauley River, during the bore process of streams and wetlands.” BiOp at
21-22. The Gauley River is the only source listed in Table 10. Id. at 22, Table 10.
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 The BiOp also downplays MVP’s impact on the recovery of the candy darter. According
to the BiOp, “[t]he ongoing threats of introgressive hybridization and stream degradation make
the recovery potential low for CD in the near term.” BiOp at 152. FWS “anticipate[s] adverse
effects to CD from upland sediment contribution” in both Stony Creek and the Gauley River. Id.
at 73. MVP would adversely affect the CD conservation needs, including “unembedded gravel
and cobble substrates with minimal sedimentation.” Id. at 151. See also id. at 49 (“CDs are
generally intolerant of excessive stream sedimentation and resulting cobble embeddedness”).

In addition, the BiOp’s conclusory statements regarding impacts and recovery are at odds
with FWS’s own evidence of the importance of the populations that will be adversely affected by
pipeline construction. The CD populations in Stony Creek and the Gauley River “are considered
to be among the most genetically pure populations,” which “gives added importance to these
particular populations for the future conservation and recovery of the species.” BiOp at 74. See
also id. (“The Upper Gauley and Middle New metapopulations are relatively free from
hybridization, making them essential to the recovery of the species.”); id. at 90 (noting that “the
Upper Gauley CD metapopulation is the only one that is currently secure from hybridization with
the variegate darter” and that “the importance of the pure CD genetics in the Upper Gauley
watershed is likely to increase in time”); id. at 89 (“The Upper Gauley River subunit is noted as
being important to the redundancy of the Upper Gauley CD metapopulation, and may serve as a
connection among the 6 CD-occupied streams in the Upper Gauley watershed.”); id. at 90 (“the
Stony Creek subunit is in considerably better condition than any other CD streams in VA”).

Also relevant to recovery is that candy darters “have a relatively short life cycle, reaching
sexual maturity by age 2 and often dying their third year.” Id. at 49 (citation omitted). FWS
states that it does “not anticipate a long-term reduction in fitness in these populations” because,
inter alia, “effects are expected to occur for a short duration and are expected to be primarily
temporary.” Id. at 150. See also id. at 152 (“in general, CD habitat will recover to a suitable
condition following temporary impacts”). But elsewhere FWS admits that impacts are expected
to last for years. See, e.g., id. at 139 (FWS “assum[es] effects to benthic invertebrates in aquatic
areas that receive significant increased sedimentation as a result of the MVP will persist for up to
4 years”); id. at 115 (“The effects of removal of streambank vegetation on sedimentation rates
are expected to continue for 3-5 years….”). FWS also “expect[s] that most adult CD will likely
not avoid areas of heavy sediment deposition by moving to other areas of suitable habitat within
the system as the sediment moves within the channel.” Id. at 110 (emphasis added). The BiOp’s
conclusion that “[i]n the long term, these CD populations are expected to recover to previous
abundances as stream conditions return to previous baseline levels following restoration of the
action area,” id. at 115, is not adequately supported.

In the same vein, the BiOp makes vague and conclusory statements regarding the effects
to CD proposed critical habitat. For example, the BiOp states that PBF 2 (a blend of unembedded
gravel and cobble that allows for normal breeding, feeding, and sheltering behavior) “will still
function as required by the species, but at a reduced level … until after restoration is

6
completed….” BiOp at 138. This leaves more questions than answers regarding the degree and
duration of this “reduced function.” Similarly, the BiOp states that PBF 3 “will still function as
required by the species within the impacts areas, but at a reduced level” and that “[t]hese changes
are expected to be limited in duration to the length of time that construction and restoration
activities are actively contributing excess sediment to the watershed.” Id. But this does not
explain the degree of reduced function or the anticipated duration of active contribution of excess
sediment. Similarly, while the BiOp discusses the duration of impacts to PBF 4, the assertion that
this PBF “will still function as required by the species within the impacts areas, but at a reduced
level” is vague and inadequate. Cf. id. at 138-39 (discussing PBF 4 (an abundant, diverse benthic
macroinvertebrate community that allows for normal feeding behavior) and explaining that FWS
is “assuming effects to benthic invertebrates in aquatic areas that receive significant increased
sedimentation as a result of the MVP will persist for up to 4 years”).

In addition, FWS states in the BiOp that “the ability to repatriate CDs to historically
occupied areas will not be diminished.” BiOp at 153. See also id. at 50, 151 (discussing
repatriation as a primary action to address CD conservation needs). This conflicts with FWS’s
Special Status Assessment Report for the candy darter, which states that “the stream crossings
and forest clearing associated with the permanent right-of-way are likely to increase sediment
loading in the relevant watersheds, possibly degrading the habitat in streams potentially suitable
for future candy darter reintroductions (if this is determined to be a feasible conservation tool).”
USFWS, Special Status Assessment (SSA) Report for the Candy Darter (Etheostoma osburni)
(Sept. 2017) at 39.

Indiana Bat

FWS failed to rationally specify the impact of the project on the Indiana bat by omitting
consideration of impacts in unoccupied summer habitat. FWS is aware that clearing suitable
summer habitat can adversely impact the Indiana bat, even if negative surveys suggest the habitat
is currently unoccupied. In its biological opinion for the Atlantic Coast Pipeline, FWS predicted
that “the majority of effects” to the Indiana bat from tree clearing would occur in suitable
unoccupied summer habitat. USFWS, Biological Opinion for the Atlantic Coast Pipeline (Oct.
16, 2017) (hereinafter “ACP BiOp”) at 100. Yet in the BiOp for MVP, FWS concludes that
clearing 1,252.11 acres of this same habitat type will have no adverse impacts on the endangered
Ibat. See BiOp at 11, 81. 10 FWS “offers no cogent explanation for this about-face,” which also

10
The number of acres cleared could increase if this type of habitat is cleared due to existing or
future slips. See BiOp at 15, Table 5 (estimating acreage of trees cleared due to past, ongoing,
and future slips or MVP modifications for other categories of Ibat habitat, but not for suitable
unoccupied summer habitat). The BiOp states that of the 1,252.11 acres, 17.77 acres “associated
with existing/future slip repair work and variance requests still remain to be cleared.” Id. at 81-
82. See also id. at 16 (“Many slips continue to grow over time.”). The BiOp indicates that
conditions are ripe for slips practically all year. See id. at 15 (discussing “continued growth of []
existing slips and the development of new slips during the rainy spring and summer months”); id.
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contradicts the best available scientific evidence. Defs. of Wildlife v. U.S. Dep’t of the Interior,
931 F.3d 339, 362 (4th Cir. 2019). FWS also fails to consider the importance of suitable
unoccupied summer habitat in light of climate change impacts. “[C]limate change poses a serious
and increasing threat to Indiana bats.” Ibat 5-Year Review at 27. “[D]ue to projected changes in
temperature, the most suitable summer range for Indiana bats [c]ould decline and become
concentrated in the northeastern U.S. and Appalachian Mountains.” Id. at 28 (citation omitted).
Accordingly, the Appalachian RU areas in Virginia and West Virginia “may serve as climatic
refugia for Indiana bats when other parts of the range become too warm.” Id. But currently
unoccupied habitat cleared for pipeline construction “will not be suitable summer habitat
available for future use.” ACP BiOp at 34.

In addition, the BiOp states that “[t]here are 69 suitable caves/mine portals that FERC is
assuming are occupied hibernacula within 5 miles of the MVP,” but that “it is not reasonable to
assume that all 69 suitable features would be occupied post-WNS.” BiOp at 77. Accordingly,
FWS “used known cave occupancy data from VA and WV to estimate how many of the suitable
features within the action area are likely to be occupied by Ibats.” Id. FWS divided the total
number of suitable caves within WV and VA known to contain Ibats (59) by the total number of
caves surveyed to date (395) in WV and VA. Id. at 77. But it is not clear that the FWS used an
analogous denominator when estimating how many of the suitable features within the action area
are likely to be occupied by bats:

Total # of suitable caves known to contain bats (59) Total # of assumed occupied Ibat caves (x)
Total # of caves surveyed to date (395) Total # of suitable caves/mine portals (69)

If the 395 figure in the denominator on the left represents all caves surveyed, not just suitable
caves, then it is incorrect to assume that only 15% of suitable caves are occupied. 11

The BiOp’s methodology for estimating the number of Ibats within unsurveyed areas is
also questionable. The BiOp states that in the “counties of interest” (twelve counties in West
Virginia intersected by the MVP project), 157 surveys conducted between 2009 and 2018
yielded 47 Ibat captures. Id. at 83. 12 In other words, during that period, there were 0.299 Ibat
captures per survey, or 29.9 Ibat captures per 100 surveys. The BiOp then states that MVP, with
1,934.96 acres of tree removal in unknown summer use habitat, “would have represented”
114.29 surveys because the average tree removal for 1,177 projects in West Virginia from 2016
to 2018 was 16.93 acres. Id. In other words, the BiOp states that because MVP has 114.29 times
more forest loss than the average amount of forest loss per project for 1,177 projects in WV from

at 16 (noting that “more slips are expected during the wetter months of the year (generally
November through April)….”).
11
For example, if only 100 of the 395 caves surveyed to date were found to be “suitable,” then
59% (59/100) would be the appropriate number to use to determine the total number of assumed
occupied bat caves: 0.59 x 69 caves = 40.7 caves assumed occupied caves within the action area.
12
It is not clear whether all 157 surveys were conducted during the summer.
8
2016 to 2018 (16.93 acres x 114.29 = 1,934.96 acres), therefore MVP would “represent” 114.29
surveys “on a habitat basis.” Id. But is unclear how the average size of 1,177 projects in West
Virginia from 2016 to 2018 relates to 2009-2018 capture data collected from projects in forested
areas located within West Virginia counties intersected by the MVP project. This is critical
because FWS uses this number to estimate the number of Ibats in the action area, and in turn the
number of colonies affected by the MVP. Id. Similarly, FWS does not adequately support its
assumption that each maternity colony would have 20-40 adult female bats. Id. at 84-85.

Errors in methodology are particularly concerning in light of the uncertainty regarding

take that has already occurred. See, e.g., id. at 120 (“[I]t is possible that individual Ibats have
been or will be injured or killed from active season clearing in this known maternity colony. We
have no precise way to estimate how many individuals have been or will be injured or killed.”);
id. at 58 (“now, more than ever, identification and protection of maternity sites is imperative for
even the short-term survival and eventual recovery of the species”).

The BiOp also improperly downplays effects due to removal of roost trees. FWS
acknowledges that “regardless of the timing of tree removal, impacts may occur to returning
Ibats the following active season from the loss of preferred roosts and foraging areas,” id. at 120,
and that “the loss of multiple roosts may stress individual bats, affect reproductive success, or
impact the social structure of a colony.” Id. at 122. See also id. at 122-23 (describing serious
impacts from removal of roost trees). Yet the BiOp simply concludes that “because there is
substantial roosting habitat remaining in the action area, we expect the majority of Ibats that
previously used the roost trees will relocate roosting areas with no effects or minimal effects to
individuals.” Id. at 123. FWS similarly asserts, without adequate support, that it “anticipate[s]
that Ibats will locate new travel corridors/foraging areas with no effects or minimal effects to
individuals.” Id.

Northern long-eared bat

Updated surveys are necessary to accurately assess impacts to northern long-eared bats.
See BiOp at 88 (describing summer mist-net surveys conducted in 2015 and 2016). The U.S.
District Court for the District of Columbia has remanded FWS’s rule listing the northern long-
eared bat as a threatened species. Ctr. for Biological Diversity v. Everson, No. 15-CV-477, 2020
WL 437289 (D.D.C. Jan. 28, 2020). The court remanded the listing decision, in part, because
FWS focused too narrowly on threats to the species from white-nose syndrome, failing to
appropriately assess the cumulative impact to the species from additional threats such as
“[c]urrent and future forest conversion [which] may have negative additive impacts where the
species has been impacted by WNS” such as in West Virginia. Id. at *8. The species is likely in
a more precarious position than FWS determined in its rule listing the species as threatened,
which it relies on in the MVP BiOp. BiOp at 85-86. Having current survey information will be
critical to accurately assessing the impact of this project on this species.

9
 In addition, FWS’s assumption that there are 17 NLEB hibernating in the three
hibernacula at issue, based on a single example where 17 NLEB were captured exiting a cave in
Virginia, is not adequately supported. Id. at 88. See also id. at 134 (“up to 17 NLEB may be
overwintering in each hibernacula”). FWS also does not adequately support its conclusion that
there will be no impacts to males hibernating in these sites solely “because males have less
energetic demands than females.” Id. at 134.

Mussels

In its revised Supplement to the Biological Assessment, Mountain Valley concluded that
the project is likely to adversely affect these species. Mountain Valley Pipeline, LLC,
Supplement to the Biological Assessment (revised May 28, 2020) at 132, 136. The clubshell is
“very susceptible to siltation.” Id. at 60. Upland sediment may detach from the Project Area and
travel into areas of assumed clubshell and snuffbox presence in the Little Kanawha River. Id. at
58, 64. See also id. at 132 (“The Project is anticipated to increase the embeddedness in the
Impact Area, resulting in adverse impacts to clubshell.”); id. at 136 (“The Project is anticipated
to increase the embeddedness in the Impact Area resulting in adverse impacts to snuffbox.”). The
BiOp omits the clubshell and snuffbox despite the risks that the Project poses to these species.

Cumulative Impacts

During the consultation process, FWS must “[f]ormulate its biological opinion as to
whether the action, taken together with cumulative effects, is likely to jeopardize the continued
existence of listed species or result in the destruction or adverse modification of critical habitat.”
50 C.F.R. § 402.14(g)(4). See also MVP, 2017 Biological Assessment at 9-1 (“Cumulative
effects can result from projects and continuing activities that incrementally contribute (increasing
or decreasing) to overall changes in the quantity or quality of habitat in the Action Area.”).
Despite the size of this Project, the BiOp includes a cursory analysis that considers only six
projects, and concludes that “no cumulative effects are anticipated.” BiOp at 140. FWS’s cursory
treatment of cumulative effects means that its consideration of aggregate effects does not include
the impact of future non-Federal activities that are reasonably certain to occur within the action
area. FWS’s failures are significant because “cumulative effects can be the deciding factor in
determining the likelihood of jeopardy or adverse modification.” Endangered Species
Consultation Handbook at 4-32.

* * *

In conclusion, the undersigned groups request that FWS stay the September 2020
biological opinion and incidental take statement. This project’s impacts on endangered and
threatened species adversely affect the interests that the undersigned groups and their members
have in protecting these species and their habitats. See, e.g., Alaska Fish & Wildlife Fed’n &
Outdoor Council v. Dunkle, 829 F.2d 933, 937 (9th Cir. 1987). Moreover, protecting these

10
species is unquestionably in the public interest. The Endangered Species Act “reveals a
conscious decision by Congress to give endangered species priority over the ‘primary missions’
of federal agencies,” including FERC. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978).
Congress has declared that preserving endangered and threatened species has “incalculable
value.” Id. at 188 (quotation omitted). Consultation must be reinitiated to consider the issues
outlined above; pending completion of that process, there must be no irreversible or irretrievable
commitment of resources. See 16 U.S.C. § 1536(d).

Sincerely

Elly Benson
Senior Attorney, Sierra Club
[email protected]

On behalf of Wild Virginia, Appalachian

Voices, Preserve Bent Mountain/BREDL,
Sierra Club, Defenders of Wildlife, Center
for Biological Diversity, Chesapeake
Climate Action Network, Indian Creek
Watershed Association, West Virginia
Rivers Coalition, West Virginia Highlands
Conservancy, and Preserve Giles County

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