ICWA PERSPECTIVE: “As West Virginians, we believe in paying attention to the ‘canary in the mine’. Today, our vanishing species are like a swelling choir of silenced canaries as we humans move closer to the endangered species list ourselves. … We applaud the Fourth Circuit judges for their decision in defense of endangered species, current and future.”
See links below for news coverage, case-related documents and more about the candy darter.
MOUNTAIN VALLEY PIPELINE LOSES AGAIN IN FEDERAL COURT:
Chalk one up for the Candy Darter!!
On February 3, 2022 the United States Court of Appeals for the 4th Circuit struck down one more approval for the Mountain Valley Pipeline. The Court rejected the US Fish and Wildlife Service Biological Opinion that the pipeline would not affect two endangered fish species in the pipeline’s pathway through West Virginia and Virginia. (A version of this update appears in the Monroe Watchman.)
The Court’s own words were a strong and eloquent indictment of both the FWS’s failures and MVP’s threat. In addressing the delay in completion of the pipeline that would be caused by its decision, the Court wrote: “(T)he Endangered Species Act’s directive to federal agencies could not be clearer: halt and reverse the trend toward species extinction, whatever the cost.”
The Court’s unanimous decision is the second time in nine days that it “vacated” federal agency decisions regarding the MVP project and “remanded” (or sent them back) to the agencies. On January 25 the same court invalidated approvals for pipeline construction through the Jefferson National Forest.
The February 3 decision will protect the candy darter and the Roanoke logperch, two endangered species of fish threatened by MVP’s plans to cross through and under creeks and rivers in West Virginia and Virginia. For Monroe County and the Indian Creek watershed the candy darter and Indiana bat, another endangered species mentioned in the decision, hold special meaning (see more below).
The case was argued by the Sierra Club on behalf of a coalition of eleven organizations, including Indian Creek Watershed Association, WV Rivers Coalition, WV Highlands Conservancy, and Appalachian Voices. Appalachian Mountain Advocates also represented the organizations.
In its Order, the Court determined that the Fish and Wildlife Service (FWS) had failed to adequately evaluate at least three key aspects of the threat to endangered species presented by construction of the MVP.
- The FWS failed to adequately evaluate the environmental baseline health of the species and its local ecosystem and habitat within the pipeline area.
- The FWS failed to adequately evaluate all of the causes and cumulative effects. The Order warns that “an agency may not take action that deepens the jeopardy [of an endangered species] by causing additional harm. . . . Put differently, if a species is already speeding toward the extinction cliff, an agency may not press on the gas.”
- The FWS failed to properly evaluate the impact of climate change. In the Court’s words: “The model failed to account for the one thing we know about climate change: that it will get worse over time.”
In response to the February 3 Order, Sierra Club Senior Attorney Elly Benson released the following statement: “MVP’s dangerous pipeline project has already destroyed and degraded the habitat of endangered species along its route, in addition to the threat it poses to clean air, water, and our communities. We have seen its harmful effects on the region’s forests and streams as MVP has put profits before people and wildlife. Today’s decision underscores that the Fish and Wildlife Service can’t minimize MVP’s impacts on vulnerable species like the Roanoke logperch and candy darter that are already facing numerous other serious threats, including climate change.”
Two endangered species cited in the Order hold special interest for Monroe County.
The CANDY DARTER is a small, freshwater fish native to streams and rivers within portions of the Upper Gauley and greater New River watersheds in Virginia and West Virginia. These were the only known populations of candy darters in the world, and have gradually decreased due to environmental pressures. Although not discussed by the Court in its opinion, Monroe County residents might be interested in the following information about the candy darter.
- Historical evidence shows that there were sightings of the candy darter’s presence in Indian Creek up until the 1970s, after which the population probably succumbed to increased sedimentation. The USFWS Species Status Assessment (SSA) shows the candy darter to be locally extinct in Indian Creek, but shows Indian Creek to be a potential site for restoration of this species.
- Because of its unique location and habitat, Indian Creek has the potential to support the reintroduction of the candy darter. In addition to sedimentation, another potential contributor to the loss of candy darters is a “variegate” species that can mate with the candy darter and create a hybrid that has displaced the pure candy darter in many former locations. Indian Creek is located above the Bluestone Dam on New River. Importantly, the barrier of the dam provides a refuge from hybridization with the variegate candy darter found in the Kanawha and New River watersheds downstream of the dam. Indian Creek’s ability to support a new isolated population could provide insurance that the candy darter will not become extinct.
- A 2018 FWS flyer describes the candy darter’s history, the challenges it faces from habitat loss and hybridization, and steps people can take to help reduce loss. See below for links to this flyer and other news and information.
Howdy Henritz, president of ICWA, cited the candy darter in his response to the Court’s decision: “We are grateful to the Fourth Circuit Court for their decision in defense of endangered species. The WV Department of Natural Protection and the US Fish and Wildlife Service are considering re-introducing the endangered candy darter to Indian Creek in Monroe County. Sedimentation in its habitat is a major contributor to the demise of the candy darter, and MVP has already been cited hundreds of times for failure to control sediment (mud) from entering waterways along the pipeline project. Approval for MVP to conduct stream crossings would almost certainly kill the opportunity to reintroduce the beautiful candy darter to its natural habitat of Indian Creek.”
Monroe County caves are also home to the endangered INDIANA BAT, and the Fish and Wildlife Service was required to evaluate MVP’s construction plans in terms of the likely “incidental take” of protected bats along the project route.
According to the Sierra Club: ”The court concluded that because it’s vacating and remanding based on deficient analysis of the fish species, it was unnecessary to address our claims regarding the incidental take statement. But the court recommended to FWS that on remand they further explain why they anticipate no effects to the bat from clearing more than 1,000 acres of suitable unoccupied summer habitat, and said the agency “must” explain why it came to a different result here than in the Atlantic Coast Pipeline Biological Opinion. The court also said FWS should clarify why its 2015-16 bat surveys are still valid.”
ICWA PERSPECTIVE: “As West Virginians, we believe in paying attention to the ‘canary in the mine’. Today, our vanishing species are like a swelling choir of silenced canaries as we humans move closer to the endangered species list ourselves. Mountain Valley Pipeline is not just a danger to bats, fish and other individual species. It directly threatens the water and safety of its near neighborhoods and would add unforgivable fuel to the climate chaos endangering life around the world. We applaud the Fourth Circuit judges for their decision in defense of endangered species, current and future.”
POST-DECISION IMPACTS: The importance of complying with the Endangered Species Act has broad implications for the other authorizations needed by MVP, including the vacated permission to cross the Jefferson National Forest and the authorizations for stream-crossings.
On Monday, February 7, 2022 a Motion was filed with the FERC for a Stop-Work Order due to MVP’s loss of necessary federal authorizations. Seeking to ensure that MVP not be allowed to conduct construction anywhere along the route until a valid Biological Opinion was in place, the Motion was submitted by Appalachian Mountain Advocates on behalf of ICWA and other conservation organizations. Citing the recent rulings that vacated the Forest Service and Bureau of Land Management decisions and the Fish and Wildlife Service’s biological opinion, the Motion includes special emphasis on the force of the Endangered Species Act.
“The Commission’s authorization of construction of the MVP is conditioned on a determination by FWS that the project will not jeopardize the continued existence of endangered or threatened species. The Fourth Circuit has now found arbitrary and capricious FWS’s conclusion that the MVP would not jeopardize endangered species and, in particular, cautioned FWS to look carefully at whether the Pipeline would cause jeopardy to the candy darter. Without assurance that the MVP will not jeopardize those species, ESA Section 7(a)(2) outright bars the project from moving forward.”
The Motion makes a strong case to FERC that any activity by MVP must be “strictly limited to that necessary to stabilize or restore existing disturbed areas and must not include any new clearing or trenching.” See below for a link to the full Motion.
- Federal court (again) overturns (another) MVP permit – Virginia Mercury.2-3-2022
- Federal appeals court hands MVP opponents another win – WV Gazette-Mail.2-4-2022
- 2022-02-03 4th Circuit Decision Vacating and Remanding FWS BiOp
- 2022-02-07 Motion to FERC for Stop-Work Order after FS permit and FWS BiOp vacated
CANDY DARTER INFO