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The Highlands Voice West Virginia Highlands Conservancy PO. Box 306 Non-Profit Org. Charleston, WV 25321 U.S. Postage PAID Permit No. 2831 Charleston, WV The Highlands Voice Since 1967, The Monthly Publication of the West Virginia Highlands Conservancy Volume 51 No. 6 June, 2018 Poor Plan to Protect Endangered Species Another Delay for the Atlantic Coast Pipeline By John McFerrin The United States Court of Appeals for the Fourth Circuit While directly harming any endangered species is illegal, has ruled that the Incidental Take Permit for the there are circumstances in which harm is allowed if Atlantic Coast Pipeline is void because the limits the harm is not the focus of the activity but rather is set by the Fish and Wildlife Service’s Incidental incidental to the activity. In the case of the Atlantic Take statement are “so indeterminate that they Coast Pipeline, the goal of construction is not to undermine the Incidental Take Statement’s “hunt, shoot, wound, kill, trap, capture, or collect” an enforcement and monitoring function under the endangered species. Rather, the developers want to Endangered Species Act.” build a pipeline, endangered species are in the way, The Endangered Species Act prohibits any and they may well be harmed by the construction. “take” of a species which is listed as endangered. Situations such as this are addressed by an Incidental “Take” is defined in the Endangered Species Take Permit. An incidental take permit is required when Act (ESA) as harass, harm, pursue, hunt, shoot, non-Federal activities will result in a “take” of threatened wound, kill, trap, capture, or collect any threatened or endangered or endangered wildlife. A habitat conservation plan (HCP) must species. Harm may include significant habitat modification where accompany an application for an incidental take permit. The purpose it kills or injures a listed species through impairment of essential of the habitat conservation planning process associated with the behavior (e.g., nesting or reproduction). permit is to ensure there is adequate minimizing and mitigating of (More on p. 3) What’s inside: Thoughts from our President 2 Why we joined 10 A plethora of products 16 A little update 3 Roster of officers 10 A celebration 4 Get a Hiking Guide 11 Expanding Bear Rocks Preserve 5 Baby trees for sale 11 Talking about the future 6 Mountain Valley Pipeline hits How to join 7 a snag 12 Get a history book 7 Mergansers 13 Wildflowers 8 Objecting to FERC policy 13 Upcoming workshop 8 Tree sitters 14 Visit us on the web at www.wvhighlands.org Find us on Facebook The Highlands Voice June, 2018 Page 2 Thoughts from our president By Larry Thomas In addition to providing an abundance construction in general. Access is also Lawsuits Seek to Restore of rain, May has produced a flurry of provided to ACP-specific project plans information that will be of interest to West and to environmental-review and approval Protections for Migratory Virginia Highlands Conservancy members. documents. In addition, project-specific Birds Information includes: requests for variances and exemptions, WASHINGTON (May 24, 2018) A as well as inspection and enforcement coalition of national environmental groups, Monitoring the Atlantic Coast documents, will be provided. including American Bird Conservancy, 3) CSI Mapping System Center for Biological Diversity, Defenders Pipeline The CSI Mapping System is an of Wildlife, National Audubon Society, Rick Webb, WVHC Board Member online interactive map developed to support National Wildlife Federation, and the and Committee Chair of the Pipeline citizen oversight of the construction phase of Natural Resources Defense Council, today Compliance Surveillance Initiative of the the ACP. The mapping system includes 200 filed litigation, National Audubon Society v. Allegheny-Blue Ridge Alliance (ABRA) has miles of the western mountainous section Department of the Interior, in the Southern provided the following resource information. of the ACP. The mapping system provides District of New York challenging the WVHC is a member of ABRA. the location of the ACP construction corridor current Administration’s move to eliminate The Pipeline CSI, a program of the and access roads, information concerning longstanding protections for waterfowl, Allegheny-Blue Ridge Alliance (ABRA), environmental risks and sensitivities, raptors, and songbirds under the Migratory has made the following online resources construction plans (“alignment sheets”), Bird Treaty Act (MBTA). available to citizens who are contending and water monitoring stations. The mapping In a legal opinion issued December with the Atlantic Coast Pipeline and other system includes a layer that indicates the 2017, the Administration abruptly reversed major pipelines in the central Appalachian extent of tree felling, and thus, the extent decades of government policy and practice region: of potential construction in the summer of — by both Democratic and Republican 1) Pipeline Incident Report form 2018. The mapping system will also provide administrations — on the implementation An online submission form is available for information related to CSI Incident Reports. and enforcement of the MBTA. citizen reports concerning stream impacts The Act’s prohibition on the killing and noncompliance with environmental Mapping system users can select or “taking” of migratory birds has long requirements for pipeline construction. from different base maps, determine been understood to extend to incidental The reporting form has been developed the layers that are displayed, access take from industrial activities — meaning as a collaborative effort involving multiple information about map features, and save unintentional but predictable and avoidable organizations, and it can be used for PDF versions of their maps. killing. Under the Administration’s revised submission of reports for different pipeline The CSI Mapping System is interpretation, the MBTA’s protections will projects. Form submissions will be currently set to display locations of stream apply only to activities that purposefully kill monitored by the Pipeline CSI, Mountain and wetlands crossings considered by the birds. Any “incidental” take — no matter Valley Watch, Trout Unlimited, and the West US Army Corps of Engineers prior to its how inevitable or devastating the impact on Virginia Rivers Coalition. Each organization issuance of the general Nationwide Permit birds — is now immune from enforcement will address specific pipelines and will follow 12. As indicated in the attached screen under the law. its own protocol for responding to incident shot, information concerning the individual The risk of liability under the MBTA reports, including follow-up investigation crossings, including identifiers (FeatID), can has long provided the oil and gas industry, and submission of complaints to the be accessed via popup windows. Although wind energy development companies, and regulatory agencies. the Virginia DEQ is accepting comments on power transmission line operators with an The Pipeline Incident Report the adequacy of the NWP12 for protecting incentive to work with the U.S. Fish and form is available at pipelineupdate.org/ state waters in lieu of individual state review, Wildlife Service to minimize bird deaths. For csi-reporting/. Other reporting methods the DEQ website that provides water body example, in an effort to protect migratory provided by ABRA, including a hotline crossing information is not working. The CSI birds and bats and avoid potential MBTA and a dedicated email address, as well Mapping System provides access to the liability, the wind industry, conservation as guidance for citizen observers, are missing information. For more on this issue, groups, and the U.S. Fish and Wildlife also provided. Additional information and see Calendar / Events at pipelineupdate. Service worked to develop comprehensive methods for reporting are provided by the org/csi. guidelines aimed to ensure best practices other collaborating organizations. for siting and developing wind farms. The 2) Rules for the Atlantic Coast Pipeline Administration’s new policy eliminates this Multiple agencies have been Protecting Migratory Birds incentive for industries and individuals to Does it or doesn’t it? The courts will involved in the review and issuance minimize and mitigate foreseeable impacts now decide if the Migratory Bird Treaty Act of permits and approvals for the ACP. of their activities on migratory birds, putting See pipelineupdate.org/environmental- extends to incidental take from industrial review for access to regulatory agency activities. Press release. websites and to environmental regulations (Continued on p. 4) and guidelines that apply to pipeline The Highlands Voice June , 2018 Page 3 More about the Pipeline (Continued from p. 1) the effects of the authorized incidental take. Incidental Take Permit is a necessary FERC has not said what it thinks, The purpose of the incidental take permit is component of the approval of the pipeline. whether all construction should stop, etc. It to authorize the incidental take of a listed Without this, the approval of the pipeline is doesn’t help in the confusion that the Court species, not to authorize the activities that invalid and there should be no construction has not yet done a full opinion. All it has result in take. anywhere. issued so far is a single page order stating The pipeline’s construction imperils This confusion comes about because its conclusion that the limits set by the Fish eight threatened or endangered species of the number of agencies involved and the and Wildlife Service are so indeterminate including a fish called the Roanoke Log relationship between those agencies. The that they do not meet the requirements of Perch, two types of bats, and the Rusty big kahuna on the pipeline is the Federal the Endangered Species Act. The Court Patched Bumble Bee that United States Energy Regulatory Commission (FERC). promised a full opinion later; when that Fish and Wildlife Service added to the It gets to say whether the pipeline as a comes it may, or may not, shed some light endangered species list just last year. In whole is approved. At the same time, other on whether all construction should stop.
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