Motion For Stay of MVP BiOp W - o Attachments

USCA4 Appeal: 20-2159 Doc: 23-1 Filed: 11/02/2020 Pg: 1 of 27 Total Pages:(1 of 968)
No. 20-2159
IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
APPALACHIAN VOICES; WILD VIRGINIA; WEST VIRGINIA RIVERS

COALITION; PRESERVE GILES COUNTY; PRESERVE BENT MOUNTAIN,
a chapter of Blue Ridge Environmental Defense League; WEST VIRGINIA
HIGHLANDS CONSERVANCY; INDIAN CREEK WATERSHED
ASSOCIATION; SIERRA CLUB; DEFENDERS OF WILDLIFE;
CHESAPEAKE CLIMATE ACTION NETWORK; and CENTER FOR
BIOLOGICAL DIVERSITY
Petitioners,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR;
DAVID BERNHARDT, in his official capacity as Secretary of the U.S.
Department of the Interior; UNITED STATES FISH AND WILDLIFE SERVICE,
an agency of the U.S. Department of Interior; AURELIA SKIPWITH, in her
official capacity as Director of the U.S. Fish and Wildlife Service; and CINDY
SCHULZ, in her official capacity as Field Supervisor, Virginia Ecological
Services, Responsible Official
Respondents,
and
MOUNTAIN VALLEY PIPELINE, LLC,
Respondent-Intervenor.
PETITIONERS’ MOTION FOR STAY OF RESPONDENT

U.S. FISH AND WILDLIFE SERVICE’S BIOLOGICAL OPINION
AND INCIDENTAL TAKE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 18(a) and Local Rule 27(e),
Petitioners seek a stay of the U.S. Fish and Wildlife Service’s (“FWS”) Biological
Opinion (“BiOp”) and Incidental Take Statement (“ITS”)1 for the Mountain Valley
Pipeline (“MVP”), issued on September 4, 2020. This Court has jurisdiction under
the Natural Gas Act. 15 U.S.C. §717r(d)(1). Respondents and
Respondent-Intervenor Mountain Valley Pipeline, LLC (“Mountain Valley”) have
been informed of this motion and intend to file responses in opposition.
INTRODUCTION
Mountain Valley is in the process of constructing approximately 304 miles of
new 42-inch diameter gas pipeline across West Virginia and Virginia. This
construction—including cutting a 125-foot-wide right-of-way through forests and
over highly erodible steep slopes in Appalachia—continued even after this Court
vacated several of MVP’s required federal authorizations. Pipeline construction
degrades the aquatic habitat of the endangered Roanoke logperch (“RLP”) and
candy darter (“CD”), and destroys the habitat of imperiled bat species already
suffering precipitous population declines.
These species are in a precarious position. “Small [Roanoke] logperch
populations could go extinct with minor habitat degradation,” and “[a]ll the
populations are small.”2 For candy darter, which “are generally intolerant of
1
The BiOp/ITS is attached as Exhibit A.
2
U.S. Fish and Wildlife Service, Roanoke Logperch: Percina rex,
https://www.fws.gov/northeast/pdf/RoanokeLogperch.pdf.
2
excessive stream sedimentation,” BiOp at 49, the “risk of extinction is high.”3 And
project-related sedimentation would harm populations that are critical to species
recovery. See id. a t 74 (“The Upper Gauley and Middle New metapopulations are
relatively free from hybridization, making them essential to the recovery of the
species.”). Virginia and West Virginia hibernacula surveys indicate that Indiana
bat populations have decreased at least 95% in recent years. Id. at 78.
In October 2018, a federal scientist who has studied the Roanoke logperch for
over thirty years sent comments to FWS outlining serious flaws in the original
Biological Opinion for MVP (“2017 BiOp”). Ex. B at 005-013. Those comments
were not made public until April 2019. Shortly thereafter, Petitioners’ members
observed a marked increase in construction activity in watersheds that contain
Roanoke logperch habitat, and a corresponding increase in sediment in rivers and
streams. Exs. X, Z, BB. Even though FWS and the Federal Energy Regulatory
Commission (“FERC”) were aware of glaring deficiencies in the 2017 BiOp, see
Ex. B, pipeline construction continued apace until Petitioners filed suit (Appeal
No. 19- 1866). On October 11, 2019, this Court granted Petitioners’ motion to stay
the 2017 BiOp.
On September 4, 2020, FWS issued a new BiOp and ITS. Petitioners opposed
MVP’s subsequent requests to resume pipeline construction. Exs. C–F. Although
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.
3
MVP still lacks authorizations from the U.S. Forest Service and Bureau of
Land Management, and notwithstanding this Court’s temporary stay of the
U.S. Army Corps of Engineers authorizations for the project, FERC has
authorized MVP to proceed with construction—in violation of a mandatory
condition in the FERC
Certificate requiring that MVP obtain all federal authorizations before
proceeding with construction. See Sierra Club v. U.S. Dep’t of the Interior, 899
F.3d 260, 285 n.11 (4th Cir. 2018).
On October 27, 2020, Petitioners sent a letter to FWS requesting an
administrative stay of the BiOp and ITS. Ex. G. On November 2, FWS denied the
requested relief. Ex.GG. FWS noted that “neither the Endangered Species Act nor
its implementing regulations provide for an administrative stay of a final
biological opinion,” and concluded that Petitioners’ request did “not present any
basis for staying the Biological Opinion or for requesting that FERC reinitiate
consultation.” Id. at 1, 2.
Earth-disturbing construction activity has commenced; in recent days, local
residents have observed heavy machinery and construction activity along the
MVP route, including in watersheds that contain endangered species habitat. Ex.
DD at ¶¶13–16.
4
ARGUMENT
Whether to issue a stay pending review turns on “consideration of four
factors: ‘(1) whether the stay applicant has made a strong showing that he is likely
to succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public interest lies.’” Nken
v. Holder, 556 U.S. 418, 434 (2009) (citation omitted). Petitioners meet all four
factors.
A. Petitioners are Likely to Succeed on the Merits
The BiOp and ITS are final agency actions reviewable under the
Administrative Procedure Act. Sierra Club, 899 F.3d at 270. The Court “shall hold
unlawful and set aside agency action, findings, and conclusions found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law.” 5 U.S.C. §706(2)(A).
1. The Incidental Take Limit for Roanoke Logperch and Candy Darter
is Arbitrary and Capricious
The Endangered Species Act (“ESA”) prohibits “take” of threatened and
endangered species. 16 U.S.C. §1538(a)(1)(B); 50 C.F.R. §17.31. This prohibition
extends to “[h]arm and harassment[,] includ[ing] the disruption of normal
behavioral patterns and indirect injury caused by habitat modification.” Sierra
Club, 899 F.3d at 269 (citations omitted). Congress created “a narrow exception to
the prohibition against take: when ‘such taking is incidental to … the carrying out
5
of an otherwise lawful activity.’” Id. (quoting 16 U.S.C. §1539(a)(1)(B)). To take a
species under this exception, agencies (or private entities taking species pursuant to
agency authority) must receive an incidental take statement that sets a monitorable
and enforceable limit on the amount of take, which will “trigger” additional review
if exceeded. Id. at 269-70.
Here, FWS uses suspended sediment concentration (“SSC”) thresholds to
measure Roanoke logperch and candy darter “take” from project-related
sedimentation. Specifically, FWS “used the analytical framework in the Biological
Effects of Sediment on Bull Trout and Their Habitat – Guidance for Evaluating
Effects” to “assess the suspended sediment concentrations at which adverse effects
will occur.” BiOp at 100, 111. The ITS states that the take limit is exceeded if
project-related SSC/turbidity levels exceed the thresholds described in the bull
trout framework at the downstream limit of certain “impact areas.” Id. at 168, 172.
The take limit for RLP and CD is arbitrary because although FWS purported
to employ the bull trout framework, FWS weakened its standards without
“provid[ing] a reasoned explanation for th[is] change,” Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2125 (2016), and without considering the particular
sensitivity of RLP and CD to sedimentation impacts such that it “entirely fail[ed]
to consider an important aspect of the problem,” see Sierra Club, 899 F.3d at 293.
6
The framework, which was prepared by FWS’s Washington Fish and
Wildlife Office, 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 (emphasis added). But for MVP, FWS
states that it expects adverse effects to RLP and CD “[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.” Id. at
101, 112 (emphasis added). In short, FWS inexplicably altered the bull trout
thresholds such that “the elevated concentrations must persist continuously to
result in take of RLP and CD.” Id., Appendix F at 2. This change reduces the
likelihood that the take limit will be triggered—and that the monitoring plan’s
“Rapid
Response Protocol” will be initiated—during a sedimentation event. See id. ,
Appendix F at 15.
FWS does not provide a reasoned explanation for abruptly abandoning its
prior determination—which also reflects the best available science—that
adverse effects will occur at elevated sediment concentrations even if exposure
is not
continuous. The agency’s only effort to explain away this discrepancy involves
quoting, in a footnote, the dictionary definitions of “cumulative,” “continuous,”
and “duration.” Id. at 101, n.21. But quoting Merriam-Webster does not constitute
7
a rational explanation for weakening thresholds that were developed by FWS’s
own scientists and which the agency purports to adopt here as the “best available
methodology.” Id. at 100. FWS’s excuse for this change—that the bull trout
thresholds were developed based on a paper that used the term “exposure
duration,” and the dictionary defines “duration” as “continuance in time,” id. at
101, n.21—irrationally conflates the lay definition of the word “duration” and the
scientific term “exposure duration.” See, e.g., U.S. E.P.A., Guidelines for Exposure
Assessment 7 n.7 (May 1992)4 (defining “exposure duration” as “a time interval of
interest for assessment purposes during which exposure occurs, either continuously
or intermittently” ) (emphasis added).
In the past, FWS has faithfully applied its bull trout framework in incidental take
statements, using “cumulatively” for the three- and seven-hour threshold
concentrations. See, e.g., Biological Opinion on Index-Galena Road Relocation
Project 7 5–76 (Feb. 14, 2017); Biological Opinion on Telegraph Vegetation
Project 2 -42 (Jan. 4, 2017); Biological Opinion on Monte Cristo CERCLA Project
83 (Sept. 16, 2011); Biological Opinion on State Route 20, Skagit River Emergency
Bank Stabilization and Chronic Environmental Deficiency Project 5 3 (Aug. 16,
4
https://www.epa.gov/sites/production/files/2014-11/documents/guidelines_exp_
assessment.pdf.
8
2011); Biological Opinion on State Route 410 White River CED (MP 41.4– 42.0)
Project 6 7 (June 7, 2010).5
FWS’s unreasoned departure from the agency’s past practice of using the
“cumulative” standard developed by its own scientists, and its substitution of the
less stringent “continuous” standard based on the lay definition of the word
“duration,” renders the ITS defective. See Jimenez-Cedillo v. Sessions, 885 F.3d
292, 298 (4th Cir. 2018) (agency acts arbitrarily when it departs from past practice
without reasoned explanation).
FWS’s alteration of the bull trout effects framework is particularly troubling
because it ignores critical differences between bull trout and the RLP and CD.
These differences establish that, even if FWS were correct to use the bull trout
effects thresholds here, it should not have weakened those thresholds when
applying them to these species. RLP and CD are small benthic6 darters that are
“particularly susceptible to siltation impacts due to [their] specialized feeding
strategy” (RLP) and “particularly sensitive to changes resulting from increased
sedimentation” (CD). Ex. M at 8-58; BiOp at 110. Bull trout, in contrast, are large
apex predators unlikely to suffer direct impacts to their feeding behavior from
5
Excerpts of these biological opinions are attached hereto as Exhibits H–L. See
Sierra Club, 899 F.3d at 276, n.4 & n.7 (taking judicial notice of biological
opinions).
6
Benthic species are those that live, breed, and feed primarily on the bottom level
of a waterbody. See https://biologydictionary.net/benthos.
9
sediment deposition (that is, sediment that accumulates on the streambed) to the
same extent as benthic invertivores like RLP and CD. See id., Appendix C at 4;
Ex. N at 78 (“The impacts of sediment deposition are particularly important for
benthic species such as darters.”).7
Moreover, under the ESA, FWS must consider life cycles and migration
patterns when evaluating project-related effects. See Nat’l Wildlife Fed’n v. Nat'l
Marine Fisheries Serv., 524 F.3d 917, 934 (9th Cir. 2008). Candy darters are
benthic spawners—meaning they lay their eggs on the stream bottom—that “have a
relatively short life cycle, reaching sexual maturity by age 2 and often dying during
their third year.” BiOp at 49 (citation omitted). Although FWS anticipates that
measurable increases in suspended sediment will be “short-term and episodic,” id.
at 101, it predicts that impacts from project-related sedimentation will continue for
up to five years. See, e.g., id. at 115. In other words, the time period FWS expects
sediment effects to persist exceeds the lifespan of the candy darter. With
their short generational cycles, candy darters are particularly vulnerable to effects
7
Although sediment deposition on stream bottoms affects feeding and breeding of
these benthic species, the ITS has no trigger for re-consultation based on sediment
deposition. This impermissibly risks the survival and recovery of critical RLP and
CD populations, and renders the ITS defective. See Miccosukee Tribe of Indians of
Fla. v. United States, 566 F.3d 1257, 1275 (11th Cir. 2009). Mountain Valley has
performed embeddedness field evaluations and acknowledges that it has the ability
to monitor sediment deposition. Ex. N at 9–10. See id. at 79 (explaining that
monitoring “would allow for early and immediate action if the monitored
deposition in a particular stream begins to approach predetermined benchmarks for
the amount of anticipated incidental take….”).
10
from sediment deposition that degrades spawning habitat for a prolonged
period. See Ex. M at 8-64 (“[I]ntroduced sediment, and any associated
contaminants or nutrients, can be sequestered in streams and impart a legacy
effect to future
generations in the form of altered aquatic community assemblages and/or reduced
sheltering, feeding, or breeding habitats.”); see also Pac. Coast Fed’n of
Fishermen’s Associations v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1094 (9th
Cir. 2005). In contrast, bull trout “frequently live for 10 years and occasionally for
20 years or more.” FWS, Recovery Plan for the Coterminous United States
Population of Bull Trout (Salvelinus confluentus) 4 (2015)8 (citation omitted).
Furthermore, “[t]he ability to migrate is important to the persistence of bull trout as
it allows them to seasonally or temporally occupy habitat that may be
advantageous on an intermittent basis,” id. at 5, whereas CD are less mobile and
“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.” BiOp at 110.
These factors establish that CD and RLP are more sensitive to increased
sedimentation—particularly sediment deposition that impacts the streambed for a
prolonged period—than bull trout. Accordingly, a conservative approach would
reflect that CD and RLP “take” will likely occur at lower thresholds than those
8
https://www.fws.gov/pacific/bulltrout/pdf/Final_Bull_Trout_Recovery_Plan_
092915.pdf.
11
described in the bull trout framework. See Ctr. for Biological Diversity v. Bureau
of Land Mgmt. , 422 F. Supp. 2d 1115, 1127 (N.D. Cal. 2006) (“To the extent that
there is any uncertainty as to what constitutes the best available scientific
information, Congress intended ‘to give the benefit of the doubt to the species.’”).
Instead, however, FWS inexplicably applies a higher take threshold that would be
appropriate only if there were reason to believe that CD and RLP are more t olerant
of sedimentation than bull trout. Because FWS failed to consider the effect of its
alteration in light of the particular sensitivity of the species at issue here, its BiOp
is arbitrary and capricious. Sierra Club, 899 F.3d at 293.
2. FWS Arbitrarily Ignored the Impact of Clearing Suitable

Unoccupied Summer Habitat on the Indiana Bat
Because the take limit creates a “‘trigger’ that, when reached, results in an
unacceptable level of incidental take,” Sierra Club, 899 F.3d at 269, FWS must
accurately “[s]pecif[y] the impact, i.e., the amount or extent, of such incidental
taking on the species.” 50 C.F.R. §402.14(i)(1)(i). Here, FWS arbitrarily concluded
that clearing 1,252.11 acres of suitable unoccupied summer habitat type would
have no adverse impacts on the endangered Indiana bat (“Ibat”). BiOp at 11, 81.
In its biological opinion for the similar Atlantic Coast Pipeline (“ACP”), this same
field office concluded that “clearing [unoccupied summer] habitat will have
several anticipated indirect impacts, including the expenditure of additional travel
energy by pregnant females, which could lead to decreased pup survival, and
12
increased risk of predation, leading to injury or death.” Defs. of Wildlife v. U.S.
Dep’t of the Interior, 931 F.3d 339, 362 (4th Cir. 2019). FWS “anticipate[d] effects
will be greatest to pregnant females that expend additional energy to seek alternate
travel corridors as a result of tree clearing.” Ex. O at Appendix B, Table 7. These
impacts are not trivial. Female bats have “tight energy budgets,” BiOp at 122, and
“given the significant declines in populations across much of the range, it is
essential to minimize impacts to reproductive potential for surviving Ibats.” Id. at
155.
In Defenders of Wildlife, this Court held that FWS’s failure to explain an
about-face on the effects of the destruction of unoccupied summer habitat rendered
a biological opinion arbitrary and capricious. 931 F.3d at 362-63. The BiOp here
suffers from that same flaw. FWS does not explain why destroying over a thousand
acres of this habitat would result in no a dverse effects for MVP, while it concluded
for ACP that “a ‘majority’ of the impacts to Ibats would be caused by the clearing
of” this habitat. Defenders, 931 F.3d at 362. The fact that no Ibats were captured in
mist-net surveys conducted in 2015 and 2016 does not explain this difference. BiOp
at 81. For ACP, negative surveys similarly suggested no Ibat presence in
unoccupied summer habitat. Defenders, 931 F.3d at 362. Indeed, the very
definition of this habitat type is “suitable for Ibat occupation but in which Ibats
have not been detected
13
during the summer.” Id. a t 360. Thus the negative surveys “do not explain
th[is] complete change in position….” Id. at 362.
Moreover, the “BiOp’s conclusion is in conflict with the evidence before the
agency.” Id. “[T]wo of the ‘primary factors’ that influence the Ibat’s status are
‘habitat loss and degradation’ and ‘forest fragmentation.’” Id. In addition, FWS
fails to consider the importance of suitable unoccupied summer habitat in light of
climate change, which “poses a serious and increasing threat to Indiana bats.” Ex.
P at 27. Due to projected temperature changes, the Appalachian Mountain
Recovery Unit areas in Virginia and West Virginia “may serve as climatic refugia
for Indiana bats when other parts of the range become too warm.” Id. a t 28
(citation omitted). But currently unoccupied habitat cleared for pipeline
construction “will not be suitable summer habitat available for future use.” Ex.
O at 34.
The BiOp is thus “arbitrary and capricious because, in reaching incidental
take conclusions for [the Indiana bat], it did not consider the potential effects of”
clearing suitable unoccupied summer habitat. Ctr. for Biological Diversity v. U.S.
Bureau of Land Mgmt. , 698 F.3d 1101, 1119 (9th Cir. 2012). FWS was required to
consider these impacts or, alternatively, offer a “cogent explanation for [its] about
face.” Defenders, 931 F.3d at 362. It did neither.
14
3. FWS’s Flawed Cumulative Effects Analysis Undermines Its
Conclusions
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) (emphasis added). Cumulative effects are “those
effects of future State or private activities, not involving Federal activities, that are
reasonably certain to occur within the action area of the Federal action subject to
consultation.” Id. §402.02. See E

x. M at 9-1 (explaining that such non-federal
actions may include oil and gas exploration and production (including non
jurisdictional natural gas gathering systems); energy projects, including power
plants or electric transmission lines; mining operations; transportation or road
projects; and commercial/residential/industrial and other development projects).
Given that the “action area” is approximately 1,002,628 acres of land and
1,163 miles of streams, BiOp at 74, 39, there is little doubt that future non-Federal
activities will have effects within the action area. See Ex. M at 9-5 (discussing
“potential cumulative effects” on Indiana bat “from anticipated losses of suitable
forested habitat from nearby energy projects, forestry practices, regional
population growth, and increases in agriculture and pesticide use”). These are the
types of activities and impacts that FWS has previously considered when analyzing
cumulative effects. For example, in a biological opinion for a 32-mile gas pipeline
15
in Virginia, this same field office wrote that “[c]umulative effects likely to impact
these species include ongoing coal mining, the transport of coal via rail, natural gas
production, siltation from upland activities, and point and non-point source
pollution inputs into waterbodies from roadways and surrounding upland
development.” Ex. Q at 33. See also USFWS, Biological Opinion for Koppers, Inc.
Intake Structure Modifications 7 (May 21, 2014) (“Urbanization, increased
impervious surfaces, untreated runoff, sedimentation, and contaminant spills have
been and are continuing threats to the logperch ….”); USFWS, Biological Opinion
for Route 40 near Stony Creek, Virginia (April 17, 1998) at 8 (“Cumulative effects
… include ongoing siltation, and toxics inputs into the waterway from the bridge
and roadway in the action area.”).
Yet in this BiOp for a 304-mile pipeline with an action area of over a million acres
and over a thousand miles of streams, FWS includes only a cursory analysis before
concluding that “no cumulative effects are anticipated.” BiOp at 140. Compare id.
x. Q at 32–36. The BiOp relies on Mountain Valley’s recent Supplement to

with E
the Biological Assessment, which includes a table listing fifteen “[e]nergy and
transportation projects within two miles of the Mountain Valley Pipeline Project.”
Ex. N at 144–45. The Supplement suggests that Mountain Valley identified these
projects by reviewing “publicly available Construction Stormwater permits in West
Virginia and Virginia.” Id. a t 142. In the BiOp, FWS considers
16
iOp at 140 (“Mountain Valley determined the list of
only six projects. See B
projects from … the [Supplement] is now limited to 3 projects in VA…. Mountain
Valley’s review also identified 3 additional non-federal projects in the action area
in WV….”). FWS proceeds to quickly dismiss each of these remaining six projects
because they are “ongoing or completed,” FWS “could find no available
information to determine” if the project is “ongoing, completed, or some other
status,” or “there are no anticipated impacts on listed species.” Id.
There are several problems with FWS’s truncated approach. As an initial
matter, FWS appears to rely entirely on Mountain Valley’s identification of
projects that require a state construction stormwater permit. See id. But as the
agency’s Endangered Species Consultation Handbook explains, a variety of
sources should be used to identify future non-Federal actions, including
“observations and inquiries during field reconnaissance in the action area;
discussions with State game and fish agencies and other Federal, State, tribal and
local agencies, and conservation organizations; and newspapers and other sources
of local information (e.g., radio, television, libraries).” Ex. R at 4-32.9 Here, there
was no meaningful effort to identify such activities.
9
Similarly, in the 2017 Environmental Impact Statement, FERC “identifie[d] other
projects or actions within the geographic scope of analysis for the MVP … through
scoping and independent research, as well as information provided by the
Applicants.” Ex. S at 4-581.
17
It is undisputed that sources such as third-party construction and disturbed
land associated with forestry operations, agriculture, mining, and residential and
commercial development affect land and waterways within the action area. BiOp,
x. M at 9-1; Ex. T (FERC, Environmental Compliance

Appendix F at 1. See also E
Monitoring Program, Weekly Summary Report for Aug. 30–Sept. 5, 2020) at 6
(“[T]he coal company is going to build a coal road across the Mountain Valley
easement so the coal company can access its easement on the other side of the
pipeline right-of-way.”); Ex. U (FERC, Environmental Compliance Monitoring
Program, Weekly Summary Report for Sept. 6–12, 2020) at 4 (“[A] landowner’s
logging crew damaged erosion control devices off [an] access road…. [T]he
environmental crew will replace the damaged erosion control devices once the
logging crew has completed work in this area.”).
It is not credible to claim that no such activities are reasonably certain to occur in
the action area in the future. See, e.g. , Ex. S at 4-595 (“Multiple non-jurisdictional
intrastate oil and gas well interconnect and gathering facilities are either proposed,
under construction, or have been recently constructed in the vicinity of the
proposed projects.”); id. at 4-598 (“The PADOT, WVDOT, and VADOT are
overseeing multiple ongoing and proposed infrastructure projects in the
geographic scope for the proposed projects….”); id. at 4-599 (discussing mining
operations that “require[] surface clearing, excavation, and mineral extraction,”
and noting that “[t]hese
18
activities are presently ongoing and could occur into the foreseeable future”). But
FWS made no attempt to obtain information about specific future activities, or to
undertake any analysis based on ongoing activities. See Ex. R at 4-33 (noting, as
an example, that where natural gas development was occurring in the county and
within the action area for a proposed new highway, “[f]uture natural gas
development is a cumulative effect as it is regulated by the State” and “[t]he
frequent occurrence of new drilling sites in the area indicated this activity was
‘reasonably certain to occur’ in the future”).
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. This failure is
significant because “cumulative effects can be the deciding factor in determining
the likelihood of jeopardy or adverse modification.” Id. a t 4-32.
4. FWS Arbitrarily Excluded Impacts in the Blackwater River

Drainage
FWS identifies 14 waterbody crossings categorized as either “RLP suitable
habitat” or “known to support RLP-presence assumed.” BiOp at 68. But FWS
quickly concludes “no impacts to RLP are anticipated from the MVP Blackwater
River drainage crossings” (6 of the 14 crossings), and states that those “crossings
will not be discussed further in this Opinion.” Id. a t 69. FWS fails to provide
19
adequate support for its decision to eliminate these crossings—and the concomitant
impacts to RLP—from further consideration.
FWS states that, “[t]o date, survey efforts have not documented RLP in the
Blackwater River drainage.” Id. at 68. But “[p]resence/absence surveys for RLP
were not conducted for the proposed action.” Id. And “many of the watersheds
within the Roanoke-Chowan remain undersampled (e.g., Blackwater River
system)….” Ex. V at 40. Accordingly, FWS cannot rely on historical survey data to
conclude that RLP do not occupy the Blackwater River drainage. Nor does
environmental DNA (eDNA) sampling demonstrate absence of RLP: although
eDNA analysis did not detect RLP, FWS acknowledges that eDNA testing results
are not a “definitive means for determining presence/probable absence.” BiOp at
x. N at 6 (“Mountain Valley does not consider eDNA sampling

69 n.4. See also E
to be a substitute for traditional presence/probable absence surveys.”). The BiOp
does not reconcile its discussion of survey data with its overall conclusion that
“RLP presence in the action area is assumed where suitable habitat was identified.”
x. V at 40 (noting that several occurrence models developed

BiOp at 68. See also E
by Virginia Tech “suggest that logperch may occur within (1) many more
waterbodies within
watersheds with known documented occurrences, and (2) waterbodies in
watersheds with no known occurrences.”); Ex. W at ¶¶13-14 (landowner
describing observing Roanoke logperch in Little Creek in 2018).
20
In addition, FWS’s suggestion that time-of-year-restrictions (“TOYR”) will
avoid impacts on any RLP that are present in this drainage, BiOp at 69, fails to
consider all the avenues for impact. For example, TOYRs on instream work do not
protect RLP from increased sedimentation caused by upland soil disturbance or
longer-term consequences of open-cut stream crossings. See, e.g. , id. at 96 (noting
adverse impacts to RLP “when sediment entering a waterbody prior to the start of
the TOYR is resuspended during the TOYR and reaches levels that would degrade
spawning habitat”); id. at 108 (“The effects of removal of streambank vegetation
on sedimentation rates are expected to continue for 3-5 years.”); Ex. B at 010
(“TOYRs cannot address indirect and/or cumulative effects of MVP
sediment-loading on a) young-of-year growth and survival, which is crucial to
population persistence or b) general habitat suitability, including for spawning, in
subsequent seasons and year.”).
In sum, FWS’s reasons for concluding that “no impacts to RLP are
anticipated from the MVP Blackwater River drainage crossings” are inadequate,
and FWS’s decision to omit these crossings from consideration when analyzing
impacts to the Roanoke logperch was arbitrary and capricious.
B. Petitioners Will Be Irreparably Injured Absent a Stay
“In light of the stated purposes of the ESA … establishing irreparable injury
should not be an onerous task for plaintiffs.” Cottonwood Envtl. Law Ctr. v. U.S.
Forest Serv., 789 F.3d 1075, 1091 (9th Cir. 2015); see also Amoco Prod. Co. v.
Vill.
21
of Gambell, 480 U.S. 531, 545 (1987). Absent a stay, MVP will continue pipeline
construction activities that will irreparably harm endangered species before
resolution of this petition. For example, new clearing, grading, trenching,
crossings, and other construction activities will increase sediment loads in rivers
and streams, which will harm endangered species. See, e.g. , Ex. X at ¶¶8–11; Ex. Y
at ¶¶6, 9; Ex. FF at ¶19; BiOp at 167, 171 (predicting that 24.3 km within the
Roanoke and Pigg River systems (RLP habitat) and 3.0 km within the Stony Creek
and Gauley River systems (CD habitat) “are expected to be impacted through water
quality and habitat
degradation”). When it granted a stay of FWS’s 2017 BiOp, this Court
necessarily concluded that MVP construction activities would cause irreparable
harm. That remains so today.
Petitioners’ members enjoy observing, searching for, and studying the
endangered species harmed by construction. Exs. W–FF. For example, Louisa Gay
reads scientific papers on the Roanoke logperch and has searched for them in the
North Fork of the Roanoke River. Ex. EE at ¶¶5-6. Diana Christopulos lives a
quarter mile from the Roanoke River and enjoys observing Roanoke logperch in
the river. Ex. BB at ¶¶6, 12. Russell Chisholm frequently travels to Stony Creek
and hopes to see candy darter there. Ex. CC at ¶11. Petitioners’ members have a
demonstrated interest in these species and are injured by impacts that occur
because of FWS’s unlawful BiOp and ITS.

22
C. Balancing the Parties’ Interests Favors Listed Species
“Congress has spoken in the plainest of words, making it abundantly clear
that the balance has been struck in favor of affording endangered species the
highest of priorities.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978). As a
result, “when evaluating a request for injunctive relief to remedy an ESA ...
violation, the equities and public interest factors always tip in favor of the
protected species.” Cottonwood, 789 F.3d at 1091.
FWS will not incur any substantial injury if the BiOp and ITS are stayed.
MVP may argue that delaying construction will result in economic harm, but
temporary harm to its economic interests is far outweighed by irreparable harm to
endangered species. Moreover, the Court should not give weight to economic
harm that may result from MVP’s strategy of rushing to construct the pipeline
despite lacking authorizations from the U.S. Forest Service and Bureau of Land
Management. (In addition, this Court recently issued a temporary administrative
stay of the U.S. Army Corps of Engineers authorizations.) FERC’s certificate for
the project prohibits construction until MVP receives all “authorizations required
under federal law.” Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043, at *76.
Mountain Valley has consistently ignored this Court’s admonition that, absent
such
authorizations, a pipeline developer, “should it continue to proceed with construction,

23
would violate FERC’s certificate of public convenience and necessity.” Sierra
Club, 899 F.3d at 285 n.11.
D. A Stay Pending Review is in the Public Interest
For the same reasons, a stay pending review is in the public interest.
Cottonwood, 789 F.3d at 1090 (“Congress established an unparalleled public
interest in the ‘incalculable’ value of preserving endangered species”). Endangered
species “are of ‘esthetic, ecological, educational, historical, recreational, and
scientific value to the Nation and its people.’” Gibbs v. Babbitt, 214 F.3d 483, 487
(4th Cir. 2000) (quoting 16 U.S.C. §1531(a)(3)). The public interest is not harmed
by a delay in construction.
CONCLUSION
Petitioners request that the Court stay the BiOp and ITS pending completion
of the Court’s review.
DATED: November 2, 2020 Respectfully submitted,
/s/ Elizabeth F. Benson
Elizabeth F. Benson (Cal. Bar No. 268851)

Nathan Matthews (Cal. Bar No. 264248)
Sierra Club
2101 Webster Street, Suite 1300
Oakland, CA 94612
Telephone: (415) 977-5723
Fax: (510) 208-3140
[email protected]
[email protected]
24
Benjamin A. Luckett
Derek O. Teaney
Appalachian Mountain Advocates
P.O. Box 507
Lewisburg, WV 24901
Telephone: (304) 646-1182
[email protected]
[email protected]
Counsel for Petitioners

25
CERTIFICATE OF COMPLIANCE
1. This motion complies with the type-volume limitation of Fed. R. App. P.
27(d)(2)(A) because this motion contains 5,200 words, excluding the parts of the
motion exempted by Fed. R. App. P. 27(d)(2) and Fed. R. App. P. 27(a)(2)(B).
2. This motion complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
motion has been prepared in a proportionally spaced typeface using Microsoft
Word in Times New Roman 14-point font.
Dated: November 2, 2020

Elizabeth F. Benson
26
CERTIFICATE OF SERVICE
I hereby certify that on November 2, 2020, I electronically filed the
foregoing Motion for Stay on behalf of Petitioners with the Clerk of Court using
the CM/ECF System, which will automatically send e-mail notification of such
filing to all counsel of record.

Elizabeth F. Benson
27
PETITIONERS’ EXHIBIT LIST
EXHIBIT DESCRIPTION
A U.S. Fish & Wildlife Service, Biological Opinion and Conference
Opinion for Mountain Valley Pipeline (Sept. 4, 2020)
B Letter from K. Hastie (FWS) to K. Bose (FERC) with Enclosure (P.
Angermeier Comments on Roanoke Logperch Portion of MVP
Biological Opinion) (April 12, 2019)
C Letter from E. Benson (Sierra Club) et al. to K. Bose (FERC)
Opposing Mountain Valley Pipeline, LLC’s September 22, 2020
Request to Resume Certain Construction Activities (Sept. 23, 2020)
D Letter from E. Benson (Sierra Club) to K. Bose (FERC) Opposing
Mountain Valley Pipeline’s September 22, 2020 Request to Resume
Certain Construction Activities (Sept. 25, 2020)
E Letter from E. Benson (Sierra Club) to K. Bose (FERC) Responding to
Mountain Valley Pipeline, LLC’s September 28, 2020 Answer to
Opposition to Resuming Construction (Sept. 30, 2020)
F Letter from E. Benson (Sierra Club) to K. Bose (FERC) Responding to
Mountain Valley Pipeline, LLC’s October 15, 2020 Request to
Resume Certain Construction Activities (Oct. 16, 2020)
G Letter from E. Benson (Sierra Club) to A. Skipwith et al. (FWS)
Requesting Stay of Biological Opinion and Incidental Take Statement
(Oct. 27, 2020)
H U.S. Fish & Wildlife Service, Biological Opinion for Index-Galena Road
Relocation Project (Feb. 14, 2017) (excerpts)
I U.S. Fish & Wildlife Service, Biological Opinion for Telegraph
Vegetation Project (Jan. 4, 2017) (excerpts)
J U.S. Fish & Wildlife Service, Biological Opinion for Monte Cristo
CERCLA Project (Sept. 16, 2011) (excerpts)
K U.S. Fish & Wildlife Service, State Route 20, Biological Opinion for
Skagit River Emergency Bank Stabilization and Chronic
Environmental Deficiency Project ( Aug. 16, 2011) (excerpts)
L U.S. Fish & Wildlife Service, Biological Opinion for State Route 410
White River CED (MP 41.4 - 42.0) Project ( June 7, 2010) (excerpts)
M Biological Assessment for Mountain Valley Pipeline, LLC, Mountain

Valley Pipeline Project, FERC Docket No. CP16-10-000 (2017)
(excerpts)
N Mountain Valley Pipeline, LLC, Supplement to the Biological
Assessment (April 2020; Revised May 28, 2020)
O U.S. Fish & Wildlife Service, Biological Opinion for the Atlantic
Coast Pipeline (Oct. 16, 2017) (excerpts)
P U.S. Fish & Wildlife Service, Indiana Bat (Myotis sodalist) 5-Year
Review: Summary and Evaluation (Sept. 2019) (excerpts)
Q USFWS, Biological Opinion on the Jewell Ridge Gas Pipeline (April 17,
2006) (excerpts)
R U.S. Fish & Wildlife Service and National Marine Fisheries Service,
Endangered Species Consultation Handbook (March 1998) (excerpts)
S Federal Energy Regulatory Commission, Final Environmental Impact
Statement for Mountain Valley Pipeline (June 2017) (excerpts)
T FERC, Environmental Compliance Monitoring Program, Weekly
Summary Report for Aug. 30–Sept. 5, 2020 (FERC Accession No.
20200922-4000)
U FERC, Environmental Compliance Monitoring Program, Weekly
Summary Report for Sept. 6–12, 2020 (FERC Accession No.
20200930-4000)
V Mountain Valley Pipeline, LLC, Supplemental Information to the
Biological Assessment (July 2017) (excerpts)
W Declaration of Carolyn Reilly
X Declaration of Tina Badger
Y Declaration of Roberta Bondurant
Z Declaration of Kirk Bowers
AA Declaration of Kathy Chandler
BB Declaration of Diana Christopulos
CC Declaration of Russell Chisholm
DD Declaration of Mary Elisabeth Coffey
EE Declaration of Louisa Gay
FF Declaration of Grace Terry
GG Letter from C. Schulz (FWS) to E. Benson (Sierra Club) Responding to
Request for Administrative Stay (Nov. 2, 2020)
USCA4 Appeal: 20-2159 Doc: 23-3 Filed: 11/02/2020 Pg: 1 of 363 Total Pages:(30 of
968)Exhibit A
USCA4 Appeal: 20-2159 Doc: 23-3 Filed: 11/02/2020 Pg: 2 of 363 Total Pages:(31 of 968)Document
Accession #: 20200904-3027 Filed Date: 09/04/2020
Note to: FERC Docket No. CP16-10
Note from: Jennifer Fink, Project Manager, Gas Branch 3
Date: September 4, 2020
Subject: Biological Opinion and Conference Opinion-U.S. Fish and Wildlife Service
Attached is a Biological Opinion and Conference Opinion for the Mountain Valley
Pipeline Project. This document was provided to the Federal Energy Regulatory
Commission via email from the United States Fish and Wildlife Service on September 4,
2020.
USCA4 Appeal: 20-2159 Doc: 23-3 Filed: 11/02/2020 Pg: 3 of 363 Total Pages:(32 of
968)Document Accession #: 20200904-3027 Filed Date: 09/04/2020
United States Department of the

Interior
FISH AND WILDLIFE SERVICE
Virginia Field Office

6669 Short Lane
Gloucester, VA 23061
September 4, 2020
Ms. Kimberly Bose, Secretary

Federal Energy Regulatory Commission
888 First Street NE, Room 1A
Washington, D.C. 20426
Attn: James Martin, Branch Chief
Re: Mountain Valley Pipeline, LLC; Docket

Number CP16-10-000; Project #05E2VA00-
2016-F-0880 and #05E2WV00-2015-F-0046
Dear Ms. Bose:
On November 21, 2017, the U.S. Fish and Wildlife Service (Service) provided the Federal
Energy Regulatory Commission (FERC) with a non-jeopardy biological opinion (BiOp) based
on our review of the referenced project and its effects on the federally listed species in Table 1
in accordance with Section 7 of the Endangered Species Act (16 U.S.C. 1531-1544, 87 Stat.
884), as amended (ESA).
Table 1. Listed species considered in the November 21, 2017 BiOp.
Species Common Name Species Scientific Name ESA Status State
Small whorled pogonia
(SWP) Isotria
medeoloides t hreatened West Virginia (WV)
Virginia spiraea (VASP) Spiraea virginiana t hreatened WV
Roanoke logperch (RLP) Percina rex endangered Virginia (VA)
Indiana bat (Ibat) Myotis sodalis e ndangered VA, WV
Northern long-eared bat
(NLEB) Myotis
septentrionalis threatened VA, WV
On August 28, 2019, FERC requested reinitiation of Section 7 consultation. On September 11,
2019, the Service accepted FERC’s request. On October 16, 2019, the Service requested that
FERC provide additional data/information. Also in October 2019, the U.S. Court of Appeals for
the Fourth Circuit stayed the 2017 BiOp pending the resolution of a legal challenge. On
December 10, 2019, the Service sent FERC a letter documenting the agreement between the
Service and FERC to extend the consultation period by 60 days to February 10, 2020. On
February 7, 2020, the Service sent FERC a letter documenting the agreement between the
Service and FERC to extend the consultation period by an additional 45 days to March 26, 2020.
On March 25, 2020, the Service sent FERC a letter documenting the agreement between the
Service and FERC, with the consent of the project applicant in accordance with 50 CFR
§402.14(e), to extend the consultation period by an additional 32 days to April 27, 2020. On
April 27, 2020, the Service sent FERC a letter documenting the agreement between the Service
and FERC, with the consent of the project applicant in accordance with 50 CFR §402.14(e), to
extend the consultation period by an additional 30 days to May 27, 2020.
We have drafted a new BiOp and incidental take statement (ITS) to address new data and to
ensure that we continue using the best available scientific and commercial information. This
revised BiOp and conference opinion (CnOp) replaces in its entirety the Service’s 2017 BiOp.
This document transmits the Service’s (BiOp + CnOp = Opinion) Opinion based on our review
of the referenced project and its effects on the federally listed species and proposed critical
habitat in Table 2 in accordance with Section 7 of the ESA.1
Table 2. Listed species and proposed critical habitat considered in this Opinion.
Species Common Name Species Scientific Name ESA Status State
VASP Spiraea virginiana t hreatened WV
RLP Percina rex endangered VA
Candy darter (CD)a Etheostoma osburni endangered, proposed
critical habitat VA,

WV
Ibat Myotis sodalis endangered VA, WV
NLEB Myotis septentrionalis t hreatened VA, WV

a
Added since 2017 BiOp.
On March 29, 2019, FERC requested emergency consultation (50 CFR §402.05) with the
Service. This emergency consultation provision applies to “situations involving acts of God,
disasters, casualties, national defense or security emergencies, etc.” Specifically, Mountain
Valley Pipeline, LLC (Mountain Valley) needed to address 2.47 acres of slip repair (slips are a
type of slope failure that result in a downward falling or sliding of a mass of soil, rock, trees, and
other debris from a steep slope onto an area below) associated with the Mountain Valley Project
(MVP), in Wetzel County, WV. This action adversely affected Ibat. This Opinion incorporates
1
By letter dated July 9, 2020, the Service concurred with FERC’s determination that the project is not likely to
adversely affect certain listed species, which concluded the Section 7 process for those species. The basis for the
Service’s concurrence is documented in the record and summarized in memoranda to the file dated July 28, 2020,
and September 3, 2020.
2
information on the nature of the emergency actions and the impacts to Ibat, including the
information and recommendations provided by the Service during the emergency consultation.
This Opinion is based on information provided in the June 23, 2017 Final Environmental Impact
Statement (FEIS) (FERC 2017a); July 10, 2017 Biological Assessment (BA) (FERC 2017b);
May 28, 2020 second revised Supplement to the Biological Assessment (SBA) prepared by
Mountain Valley (Mountain Valley 2020); multiple responses for data and information from
FERC and Mountain Valley to the Service; telephone conversations; field investigations; and
other sources of information. In several instances we relied on and adopted the findings of FERC
and Mountain Valley after determining that those findings were reasonable, the product of sound
methodological choices, and consistent with the best available scientific data. The consultation
history is located after the Literature Cited. Because the project traverses 2 states under the
geographic jurisdiction of the 2 Service Field Offices in Gloucester, VA (VAFO), and Elkins,
WV (WVFO), each maintain their geographic portion of the administrative record in their
respective Field Office.
3
Table of Contents
BIOLOGICAL OPINION .............................................................................................................................................7
DESCRIPTION OF PROPOSED ACTION..............................................................................................................7
ACTION AREA ..................................................................................................................................................35
STATUS OF THE SPECIES...................................................................................................................................41
Virginia spiraea (VASP)......................................................................................................................................41
Roanoke logperch (RLP).....................................................................................................................................44
Candy darter (CD) ...............................................................................................................................................49
Indiana bat (Ibat)/Northern long-eared Bat (NLEB)............................................................................................53
STATUS OF CRITICAL HABITAT ......................................................................................................................62
Candy darter (CD) proposed critical habitat........................................................................................................62
ENVIRONMENTAL BASELINE ..........................................................................................................................64
Status of the Species within the Action Area.......................................................................................................65
Candy darter (CD) ...............................................................................................................................................72
Indiana bat (Ibat) .................................................................................................................................................74
Northern long-eared bat (NLEB).........................................................................................................................85
Status of Proposed Critical Habitat within the Action Area..............................................................................89
Candy darter (CD) proposed critical habitat........................................................................................................89
EFFECTS OF THE ACTION..................................................................................................................................91
Candy darter (CD) .............................................................................................................................................108
Indiana bat (Ibat) ...............................................................................................................................................115
Northern long-eared bat (NLEB).......................................................................................................................130
Candy darter (CD) proposed critical habitat......................................................................................................137
JEOPARDY AND ADVERSE MODIFICATION ANALYSIS ...........................................................................140
Jeopardy Analysis Framework...........................................................................................................................141
Analysis for Jeopardy......................................................................................................................................142
Virginia spiraea (VASP)....................................................................................................................................142
Roanoke logperch (RLP)...................................................................................................................................145
Candy darter (CD) .............................................................................................................................................149
Indiana bat (Ibat) ...............................................................................................................................................153
Adverse Modification Analysis Framework......................................................................................................162
Analysis for Adverse Modification.................................................................................................................163
Candy darter (CD) proposed critical habitat......................................................................................................163
CONCLUSION .....................................................................................................................................................164
4
Virginia spiraea (VASP)....................................................................................................................................164

Candy darter (CD) .............................................................................................................................................164
Indiana bat (Ibat) ...............................................................................................................................................165
INCIDENTAL TAKE STATEMENT.......................................................................................................................165
AMOUNT OR EXTENT OF TAKE ANTICIPATED..........................................................................................166
Candy darter (CD) .............................................................................................................................................170
Indiana bat (Ibat) ...............................................................................................................................................173
REASONABLE AND PRUDENT MEASURES..................................................................................................178
Candy darter (CD) .............................................................................................................................................179
Indiana bat (Ibat) ...............................................................................................................................................179
TERMS AND CONDITIONS...............................................................................................................................179
Candy darter (CD) .............................................................................................................................................180
Indiana bat (Ibat) ...................................................................................................................................................180
MONITORING AND REPORTING REQUIREMENTS.....................................................................................181
Candy darter (CD) .............................................................................................................................................182
Indiana bat (Ibat) ...............................................................................................................................................183
CONSERVATION RECOMMENDATIONS...........................................................................................................184
Virginia spiraea (VASP)........................................................................................................................................184
Roanoke logperch (RLP).......................................................................................................................................184
Candy darter (CD) .................................................................................................................................................184
Indiana bat (Ibat) ...................................................................................................................................................185
Northern long-eared bat (NLEB)...........................................................................................................................185
REINITIATION NOTICE.........................................................................................................................................185
LITERATURE CITED..............................................................................................................................................187
Appendix A. Consultation History. ...........................................................................................................................214
Appendix B. Species-Specific Effects Tables. ..........................................................................................................218
Appendix C. Biological Effects of Sediment on Bull Trout and Their Habitat – Guidance for Evaluating Effects
(Muck 2010). .............................................................................................................................................................219
Appendix D. RLP and CD Mixing Zone Impact Tables and Maps. ..........................................................................220
5
Appendix E. Table 14................................................................................................................................................221

Appendix F. Monitoring Plan. ...................................................................................................................................222
Appendix G. Nonjurisdictional Facilities. .................................................................................................................223
Appendix H. List of Acronyms used in Opinion. ......................................................................................................224
6
BIOLOGICAL OPINION
DESCRIPTION OF PROPOSED ACTION
As defined in the ESA Section 7 regulations (50 CFR 402.02), “action” means “all activities or
programs of any kind authorized, funded, or carried out, in whole or in part, by federal agencies
in the United States or upon the high seas.” The following is a summary of the proposed action2
and a detailed description can be found in FERC’s MVP and Equitrans Expansion Project FEIS
(FERC 2017a) and BA (FERC 2017b) for MVP and the SBA (Mountain Valley 2020).
Mountain Valley is proposing to construct a 304-mile natural gas pipeline in WV and VA

(Figure 1), which requires a number of state and federal approvals, including a Certificate of
Public Convenience and Necessity from FERC and a right-of-way (ROW) grant from the Bureau
of Land Management (BLM) (Mountain Valley 2020).
Project Route – As proposed, the 42-inch diameter natural gas pipeline will cross 17 counties
within WV and VA. The pipeline route begins at an interconnection with Equitrans, L.P.’s
existing H-302 pipeline at the Mobley Interconnect and Tap in Wetzel County, WV, and
proceeds to the Transcontinental Gas Pipeline Company’s existing compressor station 165 in
Pittsylvania County, VA. Additional components include 3 new compressor stations, 4 meter and
regulation (M&R) stations (i.e., interconnects), 3 taps, 8 pig launchers and receivers at 5
locations, 36 new mainline valves (MLVs), and 31 cathodic protection beds. MVP will deliver
up to 2 billion cubic feet (ft) per day of natural gas from the Appalachian Basin to markets in the
Mid-Atlantic and Southeastern U.S.
Per the SBA (Mountain Valley 2020), the project route and facilities remain largely unchanged
from what was presented in the BA (FERC 2017b). The route at that time was approximately
303.4 miles whereas it is now approximately 304.2 miles. The additional 0.8 mile of ROW is
primarily a result of MVP shifts to avoid impacts to sensitive resources or accommodate
landowner requests. Original tree clearing proposed for the MVP was 4,459.37 acres and is now
approximately 4714.87 acres. This change is a result of ROW alignment shifts, changes to access
roads (AR), necessary additions to the MVP work area, and Mountain Valley responses to
landslides. All MVP route changes were approved by FERC via the variance process and
underwent ESA Section 7 review by FERC, in consultation with the Service as appropriate.
Construction Timeline (Mountain Valley 2020) – As of May 4, 2020, Mountain Valley

completed construction along approximately 256 miles of the MVP, with 155 miles fully
restored. Following FERC approval and receipt of necessary permits, Mountain Valley is
targeting the resumption of construction in the third quarter of 2020.
2
Although portions of the project have already been completed as discussed in more detail below, this Opinion
analyzes the effects of the entire project, including activities that have already been completed and those that have
yet to occur.
7
8
Proposed Facilities – A brief description of the 7 types of above-ground facilities are included
below. Additional details describing the facilities are included in Section 2.1 of the FEIS (FERC
2017a) and Section 3.1 of the BA (FERC 2017b).
1. Compressor stations – utilize engines to maintain pressure within the pipeline to deliver
the contracted volumes of natural gas to specific points at specific pressures. Designed to
attenuate noise and allow for operation and maintenance (O&M) activities.
2. M&R stations – measure the volume of gas removed from or added to a pipeline system
at receipt and delivery interconnects. Consist of a small graveled area with a small
building(s) that enclose the measurement equipment.
3. Taps – connect the MVP pipeline with other natural gas systems operated by other
companies.
4. MLVs – consist of a small system of aboveground and underground piping and valves that
control the flow of gas within the pipeline and can also be used to vacate, or blowoff, the
gas within a pipeline segment, if necessary.
5. Pig launchers and receivers – facilities where internal pipeline cleaning and inspection
tools, referred to as “pigs,” can be inserted or retrieved from the pipeline. Generally
consist of a segment of aboveground piping.
6. Cathodic protection systems – systems that help prevent corrosion of underground
pipeline facilities. Typically include a small, aboveground transformer-rectifier unit and
an associated anode ground bed located underground.
7. Very small aperture terminal equipment – provides telecommunication services at all
compressor stations, M&R stations, and MLV sites.
Land Requirements – Construction of the MVP pipeline will disturb approximately 6,951.71
acres of land (FERC 2017b), 296.45 acres of which are associated with expected disturbance for
future variances including slip repairs. Following construction, approximately 2,208.22 acres
will be maintained for O&M of the pipeline. The remaining approximately 4,447.04 acres of
disturbed land will be restored and allowed to revert to former use. A brief description of the 6
types of land requirements is included below. Additional details describing the land requirements
are included in Section 2.3 of the FEIS (FERC 2017a) and Section 3.2.3 of the BA (FERC
2017b).
1. Pipeline ROW – the construction ROW consists of 2 portions, the temporary construction
ROW and the permanent ROW. The temporary construction ROW will be restored or
will revert to former use; a 50-ft permanent ROW (i.e., operational easement) will be
maintained and utilized for O&M purposes. Mountain Valley will generally use a 125-ft
construction ROW to install the pipeline in uplands and a 75-ft construction ROW
through wetlands.
2. Additional temporary workspace (ATWS) – additional space required in particular areas
necessary to complete construction of the pipeline. Examples include, but are not limited
to, areas adjacent to crossings of roadways, railroads, waterbodies, wetlands, or other
utilities; areas requiring extra trench depth; certain pipe bend locations; truck turnarounds
or equipment passing lanes; staging and fabrication areas. ATWS will be used only
during construction; after pipeline installation, all ATWS will be restored to their pre
construction condition and use.
9
3. Aboveground facilities – includes compressor stations, M&R stations and interconnects,

taps, MLVs, and pig launcher and receivers. Temporary work areas used during
construction of the aboveground facilities will be restored to their pre-construction
condition and use after the facilities are built.
4. Contractor and storage yards (yards) – used to temporarily store pipe, materials, and
equipment; set up offices; and mobilize workers. After pipeline installation, all yards will
be restored to their pre-construction conditions and use.
5. Cathodic protection areas – used for installing cathodic protection rectifiers and
groundbeds.
6. ARs – necessary to gain access to the construction ROW and aboveground facilities.
Many of the proposed ARs are existing roads and virtually all existing ARs will require
improvements for pipeline construction traffic.
Construction Procedures – Mountain Valley will design, construct, operate, and maintain the
MVP pipeline and facilities in accordance with U.S. Department of Transportation regulations
under 49 CFR 192 and other applicable federal and state requirements. Mountain Valley will
comply with siting and maintenance requirements under 18 CFR 380.15 and other applicable
federal and state regulations and implement various forms of mitigations as defined in 40 CFR
1508.20. They will adopt FERC’s general construction, restoration, and operational mitigation
measures as outlined in FERC’s Upland Erosion Control Revegetation and Maintenance Plan
(FERC Plan) (FERC 2013a) and Wetland and Waterbody Construction and Mitigation
Procedures (FERC Procedures) (FERC 2013b). Construction plans include some modifications
to FERC Procedures and more details can be found in Section 2.4.1.1 of the FEIS (FERC 2017a).
Specific mitigation plans for National Forest lands have been determined in consultation with the
U.S. Forest Service (USFS).
A brief description of the 8 types of typical construction procedures associated with the project is
included below. Also provided below, where appropriate, is a description of significant work that
has been completed to date and new information regarding certain construction procedures.
Additional details describing the typical construction procedures are included in Section 2.4.2 of
the FEIS (FERC 2017a). The typical construction procedures described below have proceeded,
and will generally continue to proceed in an assembly line fashion with construction crews
moving down the construction ROW as work progresses. After tree-clearing, construction and
restoration at any point along the pipeline route takes about 3 weeks to complete; although
progress can be delayed by topography, weather, or other factors (FERC 2017a, 2017b). Within
20 days of backfilling the trench (10 days in residential areas) all work areas are graded. The
initial proposed construction schedule can be found in Section 2.5 and Table 4.9.2-1 of the FEIS
(FERC 2017a).
1. Surveying and staking – marking of the limits of the construction ROW, centerline,
ATWS, other approved work areas, and environmentally sensitive areas using temporary
flagging or tape.
2. Clearing and grading – removal of trees, shrubs, brush, roots, and large rocks from the
construction work area and leveling of the construction ROW to allow for operation of
construction equipment.
10
Tree Removal – The action area (described below) includes 6 categories of Ibat habitat:
• Known use summer habitat – defined as areas within a 5-mile radius of a pregnant female
or juvenile capture or within 2.5 miles of a known roost tree. Areas within these distances
are generally considered the likely Ibat home range.
• Unknown use summer habitat – defined as unsurveyed areas where Ibats are reasonably
likely to occur based on their location and presence of suitable habitat.
• Known occupied hibernacula – defined as caves/mine portals which are currently
occupied, or were historically occupied, by hibernating Ibats.
• Assumed occupied hibernacula – defined as suitable caves/mine portals which are
reasonably certain to be occupied by hibernating Ibats.
• Unknown use spring staging/fall swarming habitat – defined as roosting and foraging
habitat within a 5-mile radius of a potentially suitable hibernaculum that have not been
surveyed for Ibats.
• Known use spring staging/fall swarming habitat – defined as roosting and foraging
habitat within a 5-mile radius of priority 3 and 4 hibernacula or a 10-mile radius of
priority 1 and 2 hibernacula.
In addition to the categories described above, 1,252.11 acres of previously surveyed suitable
summer habitat have been or will be cleared (i.e., trees felled). No Ibats were captured during
these survey efforts. These areas include forested/wooded habitats in an Ibat recovery unit in
which survey results, per the level of effort outlined in the Range-wide Indiana bat Summer
Survey Guidelines (Service 2017a), suggest probable absence during the summer months.
Because no Ibats are expected to be exposed to stressors in these surveyed areas, the Service
does not anticipate any adverse effects to individuals of the species from the proposed action in
those areas (see Environmental Baseline section). This habitat was previously considered its own
habitat category in the 2017 BiOp (suitable unoccupied habitat); however, because no Ibats are
expected to use these areas for any purpose, we are no longer considering these areas to be a
separate habitat category for purposes of evaluating likely effects on individuals of the species.
For more detailed information on these areas and the survey effort refer to the Ibat
Environmental Baseline section.
Most of the tree clearing required for the MVP has been completed. Tree removal in each bat
habitat category that has occurred since issuance of the 2017 BiOp is provided in Table 3. An
additional 1.74 acres of trees remain to be cleared for the project (Mountain Valley 2020). These
acres occur on 2 separate areas on the ROW (M. Neylon, Mountain Valley, email to T. Lennon,
Service, June 10, 2020). One area, 1.50 acres in size, within unknown use spring staging/fall
swarming habitat, remains to be cleared due to occupancy by protestors. The other area, 0.24
acres in size, is within unknown use fall swarming/spring staging habitat near MP 119.7 and was
not able to be cleared due to the vacatur of Mountain Valley’s U.S. Army Corps of Engineers’
(Corps) authorization.
11
Table 3. Tree clearing acreage in bat habitat category by month (Mountain Valley 2020; P. Moore, Beveridge &
Diamond PC, email to C. Schulz, Service, August 17, 2020). Total does not include acreage associated with NLEB
because they are accounted for within one or more Ibat habitat category. This total identifies clearing that has
already occurred. Numbers in rows and columns may not sum to exact totals due to rounding.
Bat
Habitat Category Ibat Feb Mar Apr May Jun Aug Sep Nov Mar Apr May Aug Sep Nov Total
known use (acres)
2018 2019
0 0 0 0 0 0 0 308.19
summer
habitat
(acres
cleared)
Ibat
known
use spring staging / fall
swarming habitat 53.45 194.67 431.05 105.97 0.31 0 39.73 0 0.08 0.01 0 0 0 0 825.27 0
(acres
cleared)
Ibat
unknown use spring staging / fall
swarming habitat
(acres
cleared)** Ibat 268.31*** 893.89 630.67 0 3.50 5.73 0.34 0.64 4.87 15.24 0.26 0.31 0
unknown use
summer
habitat
(acres
cleared)
NLEB
known
use spring staging / fall 1,823.76 0 15.62 0 0 0 0 0 0 0 0 0 0 0 0 15.62
swarming habitat
(acres
cleared)
Total
135.05 80.68 0 0 0 0 0 0 8.09 1.93 0 0.55 0 0 226.30 15.49 292.70* 0 0 0 0 0
acres 203.99 841.97**** 1324.94 736.64 0.31 3.50 45.46 0.34 8.81 6.81 15.24 0.81 0.31 0 3,189.12**** *This
total includes 3.21 acres that
also fall within NLEB habitat.
**Approximately 32 acres of tree clearing along Pocahontas Road in Giles County, VA is included in the total.
However, only tree trimming and the removal of several trees occurred along the road, making it very difficult to
obtain an accurate acreage assessment. To be conservative, Mountain Valley has assumed tree felling along the
entire length and width of the road.
***This total includes 6.83 acres that also fall within NLEB habitat.
****These totals do not include the 10.04 acres of habitat that overlap between NLEB and Ibat categories.
Tree Removal (slips not anticipated in 2017 BiOp) – Slips are a type of slope failure that result in
a downward falling or sliding of a mass of soil, rock, trees, and other debris from a steep slope
onto an area below (M. Hoover, Mountain Valley, email to C. Schulz, Service, July 1, 2020).
Slips can be caused by a variety of factors, such as long duration or high-intensity rainfall events,
rapid snowmelt, freeze/thaw conditions, slope height and steepness, vegetation, and underlying
12
geology.
Unanticipated slips required tree clearing not considered in the 2017 BiOp to restore the ROW
and stabilize and rehabilitate the areas impacted by the slip (P. Moore, Beveridge & Diamond
PC, email to C. Schulz, Service, April 3, 2020). Table 4 summarizes the acres of bat habitat by
category affected by slips.
Table 4. Acreage of fallen trees by bat habitat category (P. Moore, Beveridge & Diamond PC, email to A. Bossie,
DOI, April 27, 2020). All slip-related tree felling is subject to variance approval by FERC and Section 7
consultation where listed species or designated critical habitat may be affected.
Approximate MP Estimated
Acreage of
Downed Trees Bat

Habitat Category Time of Year
1.2 0.32 Ibat Known Summer Use Habitat February 2018
8.9 0.03 Ibat Known Summer Use Habitat March 2018
9.3 0.03 Ibat Known Summer Use Habitat March 2018
15.5 0.27 Ibat Unknown Use Summer Habitat March 2018
20.9 0.09 Ibat Unknown Use Summer Habitat April 2018
23.9 0.39 Ibat Unknown Use Summer Habitat May 2018
Total 14.96
Mountain Valley has adhered to all bat time-of-year restrictions (TOYRs) for tree clearing
related to slips to date, except for the tree clearing associated with slips for which emergency
Section 7 consultation was requested by FERC, as discussed above. When responding to future
13
slips in known Ibat buffers, Mountain Valley will complete all tree clearing between November
15 and March 31 of any given year whenever possible (M. Hoover, Mountain Valley, email to T.
Lennon, Service, June 30, 2020). In addition, in all areas of the MVP, Mountain Valley commits
that it will not cut trees May 1 – July 31 to address future slips barring an unforeseen emergency
arising (M. Hoover, Mountain Valley, email to T. Lennon, Service, June 30, 2020). Should an
emergency arise that would require tree clearing during that period, Mountain Valley will
coordinate with the Service and FERC on potential emergency consultation (M. Hoover,
Mountain Valley, email to T. Lennon, Service, June 30, 2020).
Table 5 provides acreages of trees cleared due to past, ongoing, and future slips or MVP
modifications for each Ibat habitat category. Mountain Valley’s known future construction
related variances that require tree clearing are 6 areas that total approximately 7.13 acres of
various habitat and have been incorporated into Table 5 (M. Neylon, Mountain Valley, email to
T. Lennon, Service, June 26, 2020). The details of the 6 areas are:
• MVP-HA-031.04 – the permanent AR is for continued O&M of the pipeline. It is an
existing logging road that will be used to access the pipeline.
• MVP-NI-160(Ext) – the area is to provide a temporary AR to the proposed crossing of
Hominy Creek and adjacent resources. It is an existing road and will be used to move
equipment to and from the stream crossing. The LOD is reduced to 75 ft starting near MP
126.8 to minimize impacts to a wetland and two streams (including Hominy Creek).
• MVP-ATWS-1635 – the additional area is for safety reasons. The contractor anticipates
winching equipment along the steep slope north of MP 163.2. The additional ATWS will
be used to assist the winching process and to stage equipment and materials.
• MVP-MLV-AR-25.01 – the additional access is to provide permanent access to the
MLVs in the vicinity. The section of the project between MP 209.3 and 209.4 is
extremely steep and creates a driving hazard for standard ROW operation and
maintenance vehicles.
• MVP-ATWS-1627 – the level temporary ATWS is for construction to build pipe sections
and make welds rather than performing these tasks on the adjacent slopes. Once these
activities are complete, the area may be used for water holding tanks that would store
water for hydrostatic testing.
• MVP-PA-006 – the additional area is to allow pipe trucks to turn around and also pull off
to allow other traffic to pass.
14
Table 5. Acreages of trees cleared due to past, ongoing, and future slips or MVP modifications for each Ibat habitat
category (P. Moore, Beveridge & Diamond PC, email to C. Schulz, Service, August 17, 2020).
Variance Removal to Estimated
Estimated Tree Remediate ExistingEstimated Acreage Tree Removal
Acres of Project
Removal Slips (all of Downed to Remediate
Tree Removal
Estimated Tree Trees Due to Slips Future Slips Total
Habitat Category Future
(all WV)
WV VA WV VA WV VA
WV)
Known use summer habitat 226.29 0 0 0 9.55 10.14 144.20 0 390.18 Unknown use summer habitat 1,748.98 74.78 4.85 0 11.05 4.82
86.77 3.71 1,934.96 Unknown use spring staging/fall
swarming 303.91
523.12* 0 1.50 0.12 0 0 0 828.65 Known use spring staging/fall
swarming 176.76
131.43 0 0.78 0 0 0 0 308.97 Total 2,455,94 729.33* 4.85 2.28 20.72 14.96 230.97 3.71 3,462.76 *Approximately 32
acres of tree clearing along Pocahontas Road in Giles County, VA is included in the total. However, only tree trimming and
the removal of several trees occurred along the road, making it very difficult to obtain an accurate acreage assessment. To
be conservative, Mountain Valley has assumed tree felling along the entire length and width of the road.
Any slip- or variance-associated tree clearing beyond that included in Table 5 would constitute a
change in the action that could require reinitiation of Section 7 consultation. FERC and MVP
should contact the Service prior to engaging in any tree-clearing beyond that anticipated in Table
5.
Mountain Valley based the slip acreage (Table 5) on what has been affected per Ibat habitat
category thus far and the amount of ROW disturbed in that habitat category at the time (M.
Neylon, Mountain Valley, letter to J. Martin, FERC, November 27, 2019). A factor was then
added to that information to account for continued growth of those existing slips and the
development of new slips during the rainy spring and summer months. In general, slips are often
related to site-specific natural factors that are difficult to predict in advance of an occurrence.
Using engineering judgment, the following factors were developed to quantify the future acreage
forecast (M. Neylon, Mountain Valley, letter to J. Martin, FERC, November 27, 2019). The total
estimated acreage for each habitat type, A, is equal to A= x + y + z + a where:
• x = the number of acres known to be impacted by slips when the original known
estimates were developed in November 2018
• y = 2x to account for additional slips and growth of the existing slip areas throughout the
winter months, this is based upon known engineering principles that slip risk grows
during the freeze/thaw cycle
• z = 1x to account for growth of the existing slips in previous graded areas throughout the
spring construction season
• a = 1x (100% - %Graded) to account for slips that may occur subsequent to additional
ROW grading
The above estimates (Table 5) assumed that final ROW restoration would be complete by the
end of 2019. As of November 2019, it was estimated that 53% of the alignment will be
permanently restored in 2019 and the remaining 47% was temporarily stabilized ( M. Neylon,
Mountain Valley, letter to J. Martin, FERC, November 27, 2019).
15
Mountain Valley provided the following (M. Neylon, Mountain Valley, letter to J. Martin,
FERC, July 2, 2019) explanation regarding uncertainty and additional slips. The northern
approximately 60 miles of the MVP occur within the Upper Pennsylvanian-aged Connemaugh
Formation and Monongahela Formation as well as the Upper Pennsylvanian/Permian-aged
Dunkard Group. These formations consist mainly of cyclic sequences of sandstone, siltstone, red
and gray shale, limestone, and coal. These formations contain landslide-prone shale formations
which are frequently associated with landslides that occur in the area. As these shales are
exposed to water and oxygen near the surface, they weather into a thick mud. In addition,
impervious layers located beneath the shale may trap water and cause the weathered shale to
become saturated. Steep slopes that are often present in these areas, along with the weathered
shale and mud, produce conditions that increase the likelihood for landslides.
FERC, November 27, 2019) further explanation regarding uncertainty and additional slips. In
general, landslide susceptibility is higher in the northern and mountainous portions of the MVP
due to regional geology and topography. Figure 2 demonstrates this trend. While this map shows
only the likelihood of landslide occurrence and does not consider the effects of pipeline
construction, the same trend is expected to occur along the pipeline alignment. The likelihood of
additional slip-related tree clearing is increased in areas where the pipeline is aligned with the
contours of the slope (i.e., sidehills or ridgelines) as landslides tend to damage trees above and
below the movement. Usually, slips and slides occurring on planar slopes (perpendicular to
contours) along the pipeline alignment affect areas already cleared of trees to facilitate pipeline
construction.
FERC, November 27, 2019) additional explanation regarding uncertainty and additional slips. It
is difficult to obtain a meaningful estimate of required acreage per month as it will be highly
dependent upon precipitation. Generally, more slips are expected during the wetter months of the
year (generally November through April) with fewer slips occurring during the dry summer
months. Landslide occurrence is influenced by many factors that cannot be readily predicted,
including precipitation. For example, while in general landslide incidence is decreased during the
dry summer months, intense rainfall such as that derived from a tropical storm could trigger
landslides regionally, not limited to the pipeline corridor. Landslides may occur during a
relatively dry time of year, but a period of very intense rainfall may initiate numerous landslides
regionally. Many slips continue to grow over time. When the initial movement occurs, the slip
repair may be minimally invasive and require a relatively small amount of tree clearing. Timely
remediation is critical to minimizing the tree acreage and other resources affected by slips.
16
Figure 2. Landslides and susceptibility (U.S. Geological Survey [USGS]). This map was digitized from USGS
manuscripts and is unsuitable for local planning due to scale (M. Neylon, Mountain Valley, letter to J. Martin,
FERC, November 27, 2019).
17
Trees were cleared in Ibat habitat during the Ibat tree clearing TOYRs after consultation with the
Service as detailed in Table 6 (Mountain Valley 2020).
Table 6. Acres of trees cleared during Ibat tree clearing TOYRs (Mountain Valley 2020).
Ibat Acreage Date of Section 7 Consultation
Habitat Category
Month Cleared Cleared Justification Type
and
the trees following the end Service, letter to K. Bose,
Unknown use spring
staging/fall of the occupation. This tree FERC, June 6, 2018).
felling was required to
swarming habitat
remediate a safety hazard
April caused by slips and was
approved through Emergency consultation on
Known use summer 2019 1.92
Variances A-21 (MP 5.71), effects to Ibats initiated in
habitat
A-47 (MP 5.52), and A-55 2019 (T. Lennon, Service,
(MP 1.2). email to A. Mardiney,
Known use summer August FERC, April 2, 2019) and
habitat This tree felling was after-the-fact consultation
2019 0.55 required near MP 1.5 to completed via this Opinion.
June
Protestors occupied trees on remediate a safety hazard Effects to Ibats included in
2018 0.31
top of Peters Mountain in caused by slips and was 2017 BiOp (P. Friedman,
WV near MP 196 for approved in Variance A-78. FERC, letter to M.
several months. Mountain Effects to Ibats included in Eggerding, Mountain
Valley obtained approval 2017 BiOp (C. Schulz, Valley, August 13, 2019).
under Variance G-4 to clear
Fa iled Erosion and Sediment (E&S) Controls – E&S control failures have occurred due to
excessive precipitation or other factors that were not analyzed in the 2017 BiOp (M. Neylon,
Mountain Valley, letter to J. Martin, FERC, July 2, 2019). In certain instances, sediment may
have traveled beyond the MVP LOD (Table 7). When sediment leaves the MVP LOD, due to an
E&S control failure, Mountain Valley immediately repaired or replaced those E&S controls (M.
Neylon, Mountain Valley, letter to J. Martin, FERC, July 2, 2019). In many instances, additional
E&S controls were added to reinforce protection of resources and to keep material within the
LOD. In some instances, Mountain Valley has worked with the applicable state to redesign the
controls in a particular area to reduce off ROW events (M. Neylon, Mountain Valley, letter to J.
Martin, FERC, July 2, 2019). For listed plants, the failed E&S controls occurred in areas where
Mountain Valley had previously conducted plant surveys and found none (M. Neylon, Mountain
Valley, letter to J. Martin, FERC, July 2, 2019).
18
Table 7. Instances of sedimentation beyond the MVP LOD.

Species Occurrence Length
Potential Approximate Sediment
Habitat at Stream North Fork Amount of Traveled
Date
227.2 Event Name Sediment from LOD (ft)
MP County,
Montgomery, Location
Cleaned Up
(ft3)
Spread Listed Stream ID Date of Approximate
State
a Unable to be
8/15/2018 8/15/2018 2 Unknown away2
RLP S-G36 227.2 Montgomery,
VA H
Roanoke River
North Fork
VA H
RLP S-G36 9/16/2018 Washed
retrieved
Roanoke River
North Fork
a
away10 Unable to be
227.2 Montgomery,

VA H RLP S-G36 10/11/2018 Washed retrieved
Roanoke River
269.8 Franklin, VA I RLP S-F11 Blackwater

River 9/18/2018 Washed

a
away10 Unable to be
retrieved
289.8 Pittsylvania,

VA I RLP S-C3 Harpen

Creek 10/14/2018 10/17/2018 2 Unable

to be
retrieved
a
Amount is estimated following hurricane-level storm event (M. Neylon, Mountain Valley, letter to J. Martin,
FERC, July 2, 2019).
3. Trenching – digging of pipeline trench by removal of soil and rock by track-mounted

excavator/backhoe or similar equipment. Tractor-mounted mechanical rippers or rock
trenchers may be used to fracture rock prior to removal. Blasting may be used in specific
areas where hard bedrock is close to the surface.
Trenching – Table 8 reflects the amount of completed and remaining trenching within 1,060 ft of
each of the 6 bat portals (M. Hoover, Mountain Valley, email to C. Schulz, July 7, 2020). The
1,060-ft is a screening distance based on the maximum charge weight used to evaluate the
potential vibration and noise effects associated with blasting (Appendix G of the SBA [Mountain
Valley 2020]). The maximum charge weight to date on the MVP has been 30 pounds (aside from
the compressor stations, which are located over 2 miles from the closest portal), so an analysis
(Appendix G of the SBA [Mountain Valley 2020]) was performed for all bat habitats within the
1,060-ft screening distance for this charge weight. The 1,060 ft distance is more fully explained
in the SBA (Mountain Valley 2020).
Table 8. Amount of trenching that remains within 1,060 ft of each of the 6 bat portals (M. Hoover, Mountain Valley,
email to C. Schulz, July 7, 2020).
Portal ID Completed Trenching (ft) Remaining Trenching (ft) 86_02 0.00 1,722.70
86_03 0.00 1,894.90
PS-WV3-Y-P1 2,345.77 0.00
44_01 0.00 1,414.87
43_01 1,708.34 0.00
23_01 0.00 2,928.58
Bl asting – Blasting is minimized to the extent practical, and the need for blasting during project
construction could not be determined at the time FERC issued the BA in 2017 (Mountain Valley
2020). Blasting for grade or trench excavation is short in duration, utilized only after all other
19
reasonable means of excavation are determined to be unlikely to achieve required results, and is
required in areas of shallow bedrock where unrippable subsurface rock is encountered. Blasting
was required along approximately 153 miles of the MVP corridor from May to December 2018
and April to October 2019 (Mountain Valley 2020).
Table 9. Summary of blasting from May to December 2018 and April to October 2019 (M. Hoover, Mountain
Valley, email to C. Schulz, July 7, 2020).
May to Blasted - of Miles
Habitat Category Decembe April to Blasted
Number r 2018 October
of Miles Number of 2019
Blasted - Miles Total Number
Ibat known summer use habitat 5.28 0.00 5.28 Ibat known use spring staging/fall swarming
habitat 9.05
0.00 9.05
Ibat unknown use spring staging/fall swarming
habitat 14.43
3.67 18.10
Ibat unknown use summer habitat 28.93 27.95 56.88 NLEB known use spring staging/fall swarming
habitat 0.27
0.00 0.27
Total 57.96 31.62 89.58
During past blasting operations in Table 9, the measures described below were implemented (M.
Hoover, Mountain Valley, email to C. Schulz, Service, July 7, 2020). Mountain Valley will also
continue to incorporate these measures on future blasting operations. In areas where blasting
occurs, Mountain Valley implements measures to prevent damage to natural and man-made
features and structures, including potential hibernacula, water sources, cables, conduits, and
pipelines (Mountain Valley 2020). Blasting mats or padding, restricted charge sizes, and/or
charge delays are used to minimize air blast, peak sound pressure levels, and ground vibration.
The 2017 Project General Blasting Plan (revised March 2018) and 2018 Site-Specific Plan for
Braxton County Mine Portals describe the procedures and safety measures adhered to while
implementing blasting activities (Mountain Valley 2020).
As detailed in Appendix G of the SBA (Mountain Valley 2020), based on available information,
the upper range of the acceptable vibration levels at the portals is 0.20 inches per second. The
International Society of Explosives Engineers outlined calculation methods and criteria levels for
human response to blasting and provided a recommended limit of 0.013 pounds per square inch
(psi) (equivalent to a peak, linear sound pressure level of 133 dB) for human structures. This
criterion is set to limit complaints by people and avoid structural damage but does rely on people
being informed of a blast event in advance. Guideline levels aimed at minimizing annoyance to
people exposed to repeated blast events recommends an overpressure criterion of 115 dB linear
for people. The audiogram provided in Figure 1 of Appendix G indicates it is likely that bats are
significantly less sensitive than humans to the low-frequency sound generated by blasting
(Mountain Valley 2020). Due to the short-term, low-frequency nature of the overpressure, it is
not expected that bats would be more sensitive to this type of noise than humans.
The maximum charge weight to date on the MVP has been 30 pounds (aside from the
compressor stations, which are located over 2 miles from the closest portal), so an analysis
(Appendix G of the SBA [Mountain Valley 2020]) was performed for all bat habitats within the
1,060-ft screening distance for this charge weight. Of the previously performed blasting, no
blasting was found to have exceeded the ground vibration or overpressure criteria during
20
hibernation season. For other caves within 1,060 ft of the main pipeline LOD, charge weights
have been presented that would ensure that surface construction blasting for the purpose of rock
excavation along the pipeline route can be undertaken during the hibernation season without
adverse effects to any bats that may be present in nearby features.
Mountain Valley commits to avoiding blasting during the bat hibernating season within the
distances specified in the SBA (Table 2 of Appendix G) that would exceed the overpressure
criterion of 115 dBA (0.0016 psi) (M. Eggerding, Mountain Valley, letter to J. Martin, FERC,
May 13, 2020). A minimum distance of 1,060 ft will be required if the charge weight is 30
pounds (M. Eggerding, Mountain Valley, letter to J. Martin, FERC, May 13, 2020). But many of
the blasting events will require a smaller charge weight, reducing the minimum distance
required. For instance, if only a 10-pound charge weight is required, Mountain Valley will avoid
blasting within 730 ft of a potential hibernaculum during the bat hibernating season (M.
Eggerding, Mountain Valley, letter to J. Martin, FERC, May 13, 2020). Mountain Valley will
also implement the procedures outlined the General Blasting Plan, which specifies the blasting
specification, pre-blast surveys, inspections, and monitoring of blasting activities (P. Moore,
Beveridge & Diamond PC, email to C. Schulz, Service, May 18, 2020).
Mountain Valley committed to prepare a site-specific blasting plan within 0.5 mile of known or
potential Ibat hibernacula (FERC 2017b). As noted in Mountain Valley’s Pipeline General
Blasting Plan, the site-specific blasting plan will be developed based on the conditions of that
location at the time directly prior to the blasting event and will include monitoring details (P.
Moore, Beveridge & Diamond PC, email to C. Schulz, Service, May 18, 2020). Specifically, as
noted in Section 7.6 of the General Blasting Plan, in karst terrain, the site-specific plan will be
provided to the appropriate federal, state, and local authorities for review and approval 5 working
days prior to conducting the blasting.
4. Pipe stringing, bending, welding, and coating – transportation of pipe segments to the
construction ROW or yards and bending of pipes to fit contours of the trench. Pipeline
segments are aligned and welded together. Welds are inspected and covered with
protective coating.
5. Lowering-in and backfilling – lowering of pipe using side-boom tractors and backfill of
trench with suitable excavated material using track-hoes, bulldozers, graders, or
backfilling machines. In rocky areas, protective materials may be placed in trench to
protect pipe. Trench breakers (sandbags or foam) will be installed in the trench on slopes
prior to backfilling to prevent subsurface water movement along pipeline.
6. Hydrostatic testing and pipe cleaning – hydrostatic testing to ensure the system is capable
of withstanding the operating pressure for which is it designed. Additional details
describing hydrostatic testing are included in Section 3.1.6 of the BA (FERC 2017b).
Afterwards, the pipeline will be cleaned and dried with pressurized air.
Temporary Water Withdrawals – Surface waterbodies planned for temporary water withdrawals
for use in hydrostatic testing, dust control, and hydroseeding are listed in Table 10 if listed
species may be affected (Mountain Valley 2020). Mountain Valley may also use water
21
withdrawn from the sources in Table 10, except for the Gauley River, during the bore process of
streams and wetlands. Water withdrawals are conducted in compliance with conditions in the
West Virginia Department of Environmental Protection (WVDEP) Division of Water and Waste
Management’s Water Withdrawal Guidance Tool to avoid and minimize adverse impacts to
aquatic organisms and ensure maintenance of existing instream physical, chemical, and
biological characteristics.
To reduce the potential impacts of withdrawing water from these streams, Mountain Valley
anticipates installing holding tanks near the withdrawal points to pull water over a longer period,
instead of a more acute withdrawal (M. Eggerding, Mountain Valley, letter to J. Martin, FERC,
May 13, 2020). Mountain Valley commits to placing temporary water intakes within pools rather
than riffles in the Gauley River (M. Eggerding, Mountain Valley, letter to J. Martin, FERC, May
27, 2020). Mountain Valley is committed to limiting surface water withdrawals to 10% of a
stream’s instantaneous flow, installing temporary water intakes situated above the instream
substrates with screened openings not to exceed 3/16-inch mesh, and ensuring through-screen
approach velocities less than 0.5 ft per second (Mountain Valley 2020).
Mountain Valley will refrain from withdrawing water during low flows and drought conditions
by adhering to the restrictions identified in the West Virginia Water Withdrawal Guidance Tool
(M. Eggerding, Mountain Valley, letter to J. Martin, FERC, May 27, 2020). The West Virginia
Water Withdrawal Guidance Tool information is based on annual flow statistics using USGS
stream gauges in nearby streams. The historical information is used to determine when water can
be withdrawn and still provide appropriate flow to protect the aquatic habitat. Using this tool will
identify periods of low flow and drought conditions, which in turn will indicate when water can
or cannot be withdrawn from the resource. Mountain Valley will use the tool each day a
withdrawal is required and will adhere to any identified restrictions (M. Eggerding, Mountain
Valley, letter to J. Martin, FERC, May 27, 2020).
Table 10. Water withdrawal locations along portions of MVP (Mountain Valley 2020).
Stream ID Stream Name WV County Approximate

Project
Latitude Longitude
S-J29 Gauley River Nicholas 38.270814 -80.682775
7. Commissioning – verifying that equipment has been properly installed and is working,
verifying that controls and communication systems are functioning, and confirming that
the pipeline is ready for service. As a final step, the pipeline will be purged of air and
loaded with natural gas.
8. Cleanup and restoration – grading and restoration of all work areas to pre-construction
topographic contours as closely as possible.
Specialized Construction Methods – Required when the pipeline is installed across waterbodies,
wetlands, roads, railroads, foreign utilities, steep slopes, residences, agricultural lands, and other
sensitive environmental resources. A brief description of the specialized construction methods is
included below. Additional details describing the specialized construction methods are included
in Sections 2.4.2.9 through 2.4.2.18 of the FEIS (FERC 2017a).
22
1. Waterbody crossings (dry open-cut crossings) –

• Flume construction method – diversion of streamflow through flume pipes and
placement of dam structures to exclude water flow from trench area.
• Dam-and-pump construction method – diversion of stream flow using pumps and
hoses and placement of dam structures to exclude water flow from trench area.
• Cofferdam method – installation of a temporary diversion structure from 1 bank of
the waterbody to the approximate midpoint of the waterbody crossing to isolate that
section of the stream from the remainder of the waterbody, creating discrete dry
sections around which water flows unimpeded.
Updated Stream Crossing Methods – The open-cut, dry-ditch crossing method was originally the
proposed method for crossing streams containing federally listed species due to the controlled,
visible work site and short duration of the crossing (Mountain Valley 2020). However, Mountain
Valley continued to further analyze alternative options and, in cooperation with jurisdictional
agencies, adjusted crossing methods to avoid and minimize potential impacts to listed species
(Mountain Valley 2020). Mountain Valley changed the proposed crossing methods of the Gauley
and Pigg Rivers from an open-cut dry crossing to trenchless crossing methods (Table 11)
(Mountain Valley 2020). Slight modifications have also been completed or are proposed at other
select stream crossings (M. Neylon, Mountain Valley, letter to J. Martin, FERC, November 27,
2019) (Table 11) since the 2017 BA.
Several of these crossings are complete (Table 11). The North Fork Roanoke River ROW
crossing (S-G36) was installed in 2018 using an open-cut, dry-ditch method as planned (M.
Neylon, Mountain Valley, letter to J. Martin, FERC, November 27, 2019). In 2019, the Pigg
River ROW crossing (S-E11) was installed using a horizontal directional drill (HDD) method,
rather than the originally-planned open-cut crossing method (M. Neylon, Mountain Valley, letter
to J. Martin, FERC, November 27, 2019). The Pigg River crossing is the MVP’s only long-HDD
crossing (M. Eggerding, Mountain Valley, letter to J. Martin, FERC, May 27, 2020).
Bradshaw Creek AR (MN-0276) was proposed to be crossed by temporary fill at two locations
within a 92-ft stream reach, but Mountain Valley plans to utilize 2 existing stream crossings
instead. A single AR approaches Bradshaw Creek (Stream ID S-OO10) and splits near the
stream crossing and then rejoins after the crossing. The upstream crossing is composed of an
existing multi-box, concrete culvert that has already been installed independent of the MVP and
Mountain Valley intends to use this crossing without any modifications (P. Moore, Beveridge &
Diamond PC, email to C. Schulz, Service, April 3, 2020). The downstream crossing occurs
downstream of the scour pool from the culvert (where the streambed aggrades) and is an existing
ford crossing that will be upgraded to a single-span bridge (M. Neylon, Mountain Valley, letter
to J. Martin, FERC, November 27, 2019).
Of the streams with possible proposed or listed species remaining to be crossed via open-cut dry
methods, Mountain Valley does not anticipate utilizing the flume crossing method, but will use
the dam and pump method (M. Neylon, Mountain Valley, emails to J. Stanhope, Service, May
29, 2020, and June 10, 2020).
23
Table 11. Summary of MVP stream crossing locations and methods related to federally listed aquatic species (M.
Neylon, Mountain Valley, letter to J. Martin, FERC, November 27, 2019; J. Martin, FERC, letter to M. Eggerding,
Mountain Valley, May 27, 2020; M. Neylon, Mountain Valley, email to J. Stanhope, Service, August 6, 2020).
Change
ID (TT) Crossing Commitment Commitment Crossing Method Crossing Method
Project Feature
Species Stream
Location (ft) (start) (end)
Stream Name in Current
TOYR TOYR 2017 BA
North Fork
temporary, single
Roanoke River AR1 AR 0 1-Oct 30-Jun fill/culvert
RLP S-G36 span bridge
Pipeline
RLP S-G36 North
Fork Roanoke River1
open-cut, dry in 2018
Centerline 0 1-Oct 30-Jun ditchcrossing completed
RLP S-C21 Bradshaw Creek1 Pipeline

open-cut, dry
Centerline 0 1-Oct 30-Jun ditch open-cut, dry-ditch
open-cut, dry
Centerline 0 15-Mar 30-Jun ditchmicrotunnel
Pipeline
RLP S-NN16 Roanoke River Pipeline

(changed from conventional bore) open-cut, dry
Centerline 0 15-Mar 30-Jun ditch open-cut, dry-ditch
RLP S-D8 North
Fork Blackwater River Pipeline
RLP S-C19 Maggodee

Creek1 open-cut, dry
Centerline 0 15-Mar 30-Jun ditch open-cut, dry-ditch
S-F11 Blackwater
River3 Pipeline
open-cut, dry
Centerline 0 1-Oct 30-Jun ditch open-cut, dry-ditch
RLP S-E11 Pigg River Pipeline

open-cut, dry
Centerline 16 15-Mar 30-Jun ditchHDD completed in
2019
RLP S-C3 Harpen Creek1 Pipeline

open-cut, dry
Centerline 9.8 15-Mar 30-Jun ditch open-cut,
dry-ditch
RLP S-OO10 Bradshaw

Creek
temporary, single
AR AR 0 1-Oct 30-Jun temporary fill span bridge
RLP S-OO10 Bradshaw

Creek RLP S-C17 Teels Creek4 Pipeline

composed of an existing multi-box, concrete culvert
AR AR
0 1-Oct 30-Jun temporary fill
open-cut, dry
Centerline 0 15-Mar 30-Jun ditchopen-cut, dry-ditch
RLP S-CD6 Little Creek1.5 Pipeline

open-cut, dry
Centerline 0 15-Mar 30-Jun ditch open-cut,
dry-ditch
RLP S-II2 Little Creek2 Pipeline

open-cut, dry
Centerline 7.7 15-Mar 30-Jun ditch open-cut,
dry-ditch
RLP S-GH16 North

Fork AR
Roanoke River - 0 1-Oct 30-Jun temporary fill existing
single-span bridge
SGH16
CD S-J29 Gauley River Pipeline

open-cut, dry
Centerline 0 1-Jul 31-Mar ditch microtunnel

CD S-S5 Stony Creek Pipeline

conventional bore
Centerline 0 15-Aug 31-Jul conventional
bore
Updated Trenchless Crossing Information – The trenchless crossings would minimize impacts in
the riparian zones by eliminating construction activities within or directly adjacent to the crossed
stream (M. Eggerding, Mountain Valley, letter to J. Martin, FERC, May 13, 2020). Because no
open-cut trenching would be performed for these streams, the stream channel itself would not be
impacted, allowing existing riparian vegetation near the stream banks to remain in place. Within
WV, horizontal boring would be performed starting near the elevation of the ordinary high water
mark (OHWM) on both banks of the bored stream (M. Eggerding, Mountain Valley, letter to J.
Martin, FERC, May 13, 2020). The OHWM is the boundary of aquatic features, so limited
impacts within the riparian zone are expected. Approved permitted E&S control and restoration
best management practices (BMPs) will be followed throughout construction to limit the
potential release of sediment from the ROW to the riparian zone and/or stream channel (M.
Eggerding, Mountain Valley, letter to J. Martin, FERC, May 13, 2020).
24
The following is an explanation of conventional boring provided by Mountain Valley (M.

Neylon, Mountain Valley, email to S. Hoskin, Service, May 18, 2020). Conventional boring is a
collection of techniques that allows for trenchless construction across an area. To complete a
conventional bore, two pits will be excavated, one on each side of the feature to be bored. The
pits will be sloped or shored in line with all local, state, and federal safety regulations. The
bottom of the excavations will be levelled and gravel placed to allow the track for a conventional
auger bore machine to be placed in the entry pit. These pits are typically closer to the feature
being crossed due to design length constraints for a conventional bore. The conventional bore
pits on both sides of the crossing will be reinforced using sheet piling or trench boxes, which
provide structural support, and help control groundwater. A boring machine will be lowered into
one pit, and a horizontal hole (or series of holes with increasing diameter) will be bored at the
depth of the pipeline installation. Boring will begin and the auger will remove all spoil from the
hole and the bore. Sacrificial bore pipe will be pushed into the hole during the auger
advancement towards the exit pit to case the hole in lieu of the line pipe during the boring
process. Once the auger and bore casing pipe have reached the exit side, line pipe will be welded
to the end of the casing and pushed through the hole with the boring machine in sections. The
auger and sacrificial bore pipe will be cut up and removed on the exit side in manageable length
sections until only the line pipe remains in the crossing. In some instances, the casing pipe may
be left in place and the line pipe inserted through the casing. At this point, fittings and tie-ins
may be made to complete construction in the area, appropriate backfilling of the excavations will
be performed, and the site will be returned to natural grade. For stream crossings, the
conventional bore technique avoids all instream construction activities and all direct impacts
associated with such activities. Drilling fluids are not used for conventional bores, so there is no
risk of inadvertent return (IR) of these fluids within the stream.
The following explanation was provided by Mountain Valley (M. Eggerding, Mountain Valley,
letter to K. Bose, FERC, May 20, 2020). Microtunneling and “Direct Pipe” are sometimes used
interchangeably to describe the same crossing technique because they are very similar. Both use
the same microtunneling boring machine (MTBM), the same cutting head, the same fluids, the
same spoil handling strategy, and share similar capability and limitations to completing a
trenchless crossing. Both directly install pipe immediately following the boring machine,
resulting in a single pass installation. Microtunneling is an enhanced drilling technique that
allows for trenchless construction below features. Unlike a conventional auger bore, which
typically uses a non-steerable auger to establish the bore hole, microtunneling utilizes a MTBM,
which uses remote operated hydraulic cylinders to steer the machine along the proposed bore
path. The primary advantage of microtunneling over conventional auger boring is that the
steerability of the MTBM enables drilling over longer distances and mitigates the risk of the bore
deviating from the planned profile. The MTBM is typically the full diameter of the finished bore
hole, and the product pipe is inserted behind the MTBM as it completes the bore and thereby
significantly reduces the risk of collapse during boring and protects the rock integrity of the
borehole. In comparison to HDD, microtunneling only requires one drilling pass compared to
multiple drilling passes with a product pipe pullback on an HDD. The MTBM drilling head uses
a drilling mud slurry for lubrication and conveyance of cuttings. While employing this method,
the annular pressure is drastically reduced in comparison to the HDD method. This is because the
MTBM uses fluid only at the cutting head and the annular space outside the product pipe, while
cuttings are conveyed through an isolated slurry pipe that is fully contained within the product
pipe. Therefore, the annular pressure in a microtunneling operation consists of only the
25
hydrostatic pressure of drilling fluids. HDD fills the entire bore hole with drilling fluid and
circulates a much larger volume of drilling fluid at higher pressure to both lubricate the hole and
remove cuttings. Microtunneling’s use of a much smaller volume of drilling fluid at a drastically
reduced pressure greatly minimizes the risk of an IR. An HDD, in comparison, may have
downhole pressures up to 10 times the downhole pressure in a microtunnel bore. By controlling
the thrusting force, rate-of-penetration, and tunneling pressures, the risk for IR is drastically
reduced in a microtunneling operation compared to the traditional HDD methodology.
Disadvantages of microtunneling include that it is limited in crossing length compared to an
HDD, but that disadvantage does not affect this project because the bore lengths are well within
the envelope of the technology. Also, the bore pit logistics only enable one project pipe joint to
be inserted at a time, which results in a slower drilling rate as drilling must stop to weld, test, and
coat each joint.
Mountain Valley has successfully completed the trenchless crossings of a number of streams
without environmental issues or instances of IR (M. Eggerding, Mountain Valley, letter to J.
Martin, FERC, May 13, 2020). Table 12 describes the potential mechanism for an
inadvertent
release for the three remaining trenchless crossings (probability of a release, amount of release
material, composition and nature of release material (M. Eggerding, Mountain Valley, letter to J.
Martin, FERC, May 13, 2020).
Table 12. Potential mechanism for an IR (M. Eggerding, Mountain Valley, letter to J. Martin, FERC, May 13, 2020).
Proposed
Material in the Event of IR; downhole pressures as compared to
Stream Gauley
Composition and Nature of Return HDD, which reduces risk of IR.
Material Groundwater pressure
counterbalances the fluid pressure,
Potential: Very low. Microtunnel has which reduces the risk for IR.
Trenchless Crossing Method much lower fluid volumes and Downhole pressure
Potential for IR; Amount of Return
monitoring and remote-controlled valving further reduce
River Microtunnel the risk of IR and minimize any potential fluid loss.
Amount: Less than 50 gallons. Composition: Water, only during the pilot hole phase when fluids are used.
small amount of bentonite and soda ash, cuttings/debris During that phase, groundwater pressure counterbalances
from borehole. Potential: Very low. Any risk of IR is the fluid
pressure, which reduces the risk for oil, cuttings/debris from borehole.
Stony
IR. Downhole pressure monitoring, Potential: Very low. Microtunnel has
Creek
remote controlled valving, and/or much lower fluid volumes and
surface monitoring further reduce the downhole pressures as compared to
risk of IR and minimize any potential HDD, which reduces risk of IR.
fluid loss. No fluids are used during Groundwater pressure
the conventional bore phase. counterbalances the fluid pressure,
Roanoke Amount: Less than 50 gallons. which reduces the risk for IR.
Guided Composition: Water, negligible Downhole pressure
conventional bore amounts of biodegradable vegetable
Amount: Less than 50 gallons. Composition: Water,
River Microtunnel
small amount of bentonite with additional additive,
monitoring and remote-controlled valving further reduce cuttings/debris from borehole.
the risk of IR and minimize any potential fluid loss.
Updated Open-Cut Stream Crossing Information Specific to RLP – The entire width of the 75-ft
LOD in the stream will be necessary to complete a crossing using the open-cut methodology (M.
Eggerding, Mountain Valley, letter to J. Martin, FERC, May 27, 2020). However, trench spoils
will not be placed within the limits of the stream channel. The spoils will be placed adjacent to
26
the stream, within the LOD, and protected with the appropriate E&S control measures (M.
Eggerding, Mountain Valley, letter to J. Martin, FERC, May 27, 2020).
Habitat disturbance within the LOD with open-cut crossings in RLP suitable habitat will include
temporary dewatering of the channel and removal of bedload substrates for pipeline installation
(Mountain Valley 2020). Table 13 provides the total stream crossings within each RLP habitat
watershed, the number of stream crossing that are complete, and what methodology was utilized
to cross those streams (M. Eggerding, Mountain Valley, letter to J. Martin, FERC, May 13,
2020).
Table 13. Total stream crossings within each RLP habitat watershed, number of stream crossings completed, and
methodology utilized to cross those streams (M. Eggerding, Mountain Valley, letter to J. Martin, FERC, May 13,
2020).
Total Watershed Number of Number of
Approximate Approximate Streams Streams Streams
Watershed Number of
Watershed Watershed Crossed Crossed via Crossed via
Name Streams
MP Begin MP End within the Bore Open-Cut
Complete
Roanoke River 220.8 293.4 227 30 7 23 North Fork Roanoke
River 220.8
229.8 20 4 0 4 Bradshaw Creek 229.8 232.4 5 0 0 0 North Fork Roanoke
River 232.4
233.3 0 0 0 0 Pigg River 277.2 289.6 55 6 2 4 Harpen Creek 289.6 293.4 8 0 0 0
Open-Cut Stream Crossing Information Specific to CD – Mountain Valley anticipates crossing

Kimballton Branch (tributary to Stony Creek, VA) with the pipeline via an open-cut dry crossing
method (M. Neylon, Mountain Valley, email to J. Richard, Service, June 16, 2020). The AR that
crosses Kimballton Branch is an existing private drive from Rogers Road. Mountain Valley is
utilizing both the existing drive with culverts previously placed in the stream by others and the
existing Rogers Road (Route 683) to access the project.
2. Wetland crossings – construction ROW through wetlands are typically 75-ft wide with
ATWS located in upland areas a minimum of 50 ft from wetland edge, unless granted
site-specific approval for a reduced setback. Mountain Valley has requested a ROW
greater than 75 ft wide in wetlands at several specific locations as listed in Appendix G of
the FEIS (FERC 2017a). Sediment barriers such as silt fence and staked straw bales will
be utilized during clearing and construction. Wetlands will be crossed by wet or dry open
trench lay, or open ditch push-pull methods.
3. Road and railroad crossings – railroads and paved roads will generally be crossed by
boring beneath the road or railroad. Most gravel, dirt, and grass roads will be crossed by
open-cut method; traffic will be maintained during construction by the use of steel plates
or detours.
4. Residential construction – implement measures to minimize construction-related impacts

on all residences and other structures located within 50 ft of the construction ROW
27
following site-specific Residential Construction Plans i ncluded in Appendix H of the

FEIS (FERC 2017a).
5. Foreign utilities – buried pipelines and utilities will be identified and crossed without
damage by implementing multiple measures, including using One-Call systems.
6. Agricultural areas – identify and flag existing irrigation systems and drainage tiles; any
damaged irrigation and drainage systems will be repaired or replaced. A minimum of 12
inches of topsoil will be segregated from the construction ROW in agricultural lands, in
accordance with the FERC Plan (FERC 2013a).
7. Rugged topography – temporary and permanent control measures such as silt socks,
reinforced “super” silt fence, slope breakers, trench breakers, trench drains, erosion
control matting, and hydro-mulching will be put in place to minimize E&S. In areas
where the pipeline route crosses laterally along a slope, “two-tone” construction
techniques may be used. Equipment on steep slopes will be suspended from a series of
winch tractors.
8. Karst terrain – crossing of karst terrain will follow the project-specific construction,
restoration, and mitigation methods, summarized in Section 4.1.2.5 in the FEIS (FERC
2017a) and described in the Karst Mitigation Plan (Draper Aden Associates 2017).
9. Winter construction – specialized construction methods or procedures will be utilized to

protect resources during the winter season as described in the Winter Construction Plan
(Mountain Valley 2016a).
Monitoring and Post-Approval Variances – Mountain Valley has developed procedures for
construction monitoring and quality control, environmental inspection, compliance monitoring,
and post-approval variances. A brief description of the procedures is included below. Additional
details describing the procedures are included in Section 2.4.4 of the FEIS (FERC 2017a).
1. Coordination – copies of all applicable environmental permits, construction drawings,

and specifications will be provided to construction contractors.
2. Environmental inspection and training – trained environmental inspectors (EIs) will be

employed to ensure that construction complies with construction and mitigation plans and
environmental conditions imposed by FERC and other regulatory agencies and conduct
environmental training for company employees. EIs will have the authority to
immediately “stop-work” for all activities and to take corrective actions to remedy
instances of non-compliance.
3. FERC compliance monitoring – in addition to EIs, a third-party compliance monitoring

program will be funded to provide daily environmental monitoring services during
construction and daily reports to the FERC Project Manager. Other federal,
state/commonwealth, and local agencies may also monitor the project to the extent
determined necessary by the agency.
28
In creased E&S Control Inspection Frequency ( T. Normane, Mountain Valley, letter to D. Sligh,
Wild Virginia, February 25, 2020) – The Henrico County Circuit Court in VA approved a
comprehensive Consent Decree on December 11, 2019, to resolve alleged violations that
occurred through September 18, 2019. Prior to entry of the Consent Decree, Mountain Valley
already committed to an increased E&S control inspection frequency (all controls inspected at
least every 4 days) and an accelerated deadline to repair ineffective controls (within 24 hours). In
addition to regular inspections by Mountain Valley, Virginia Department of Environmental
Quality (VDEQ), and FERC staff, Mountain Valley entered into a Memorandum of Agreement
with VDEQ to fund ($6.7 million) third-party inspectors contracted by VDEQ to provide
additional daily inspections of the project. There are approximately 50 individual inspectors
monitoring the VA portion of the MVP. That number includes Mountain Valley’s inspection
staff, third-party Environmental Auditors, VDEQ staff inspectors, VDEQ’s third-party inspection
contractor, FERC inspectors, and USFS inspectors. There are approximately 60 individual
inspectors monitoring the WV portion of MVP. That number includes Mountain Valley’s
inspection staff, WVDEP inspectors, and FERC inspectors. In addition to their scheduled
inspections, the WVDEP also conducted inspections based on citizen information. To enhance
resource protection, Mountain Valley committed to a more robust inspection frequency than
what is typically required in the WVDEP General Water Pollution Control Permit by requiring
inspections to be completed within 24 hours following a storm event greater than 0.25 inches per
a 24-hour period and every 7 days.
As a result of the Consent Decree, Mountain Valley created a comprehensive “punchlist” system
to consolidate all issues identified by VDEQ, Mountain Valley, and FERC inspectors and to
verify that they are addressed within the required timeframes. Mountain Valley engaged a third
party Environmental Auditor to conduct regular inspections and assessments of the project’s
compliance with the Commonwealth’s E&S control and stormwater management requirements.
The Environmental Auditor will be providing publicly available reports on the performance of
Mountain Valley’s full-time inspection staff and environmental field crews. Since the date the
Consent Decree was entered, the Environmental Auditor has been performing field inspections
and document reviews, which are summarized in biweekly and quarterly reports available at
https://www.mountainvalleypipeline.info/news-info/.
4. Post-approval variance process – variance requests for minor modifications within the
previously surveyed corridor that will not impact sensitive resources, and have landowner
acceptance, will be submitted to the third-party compliance monitor for review and
approval. Larger or more complex variance requests will be submitted to FERC staff for
review and final determination.
Variances – Variances for the MVP have been approved by FERC since issuance of the 2017
BiOp (M. Neylon, Mountain Valley, letter to J. Martin, FERC, November 27, 2019; P. Moore,
Beveridge & Diamond PC, email to C. Schulz, Service, April 10, 2020) (Appendix E Table
14). Some variance requests have required additional surveys for the presence of federally
listed species and/or their suitable habitat. All surveys were negative. See Appendix E Table
14 for details.
5. Post-construction monitoring – follow-up inspections and monitoring of all disturbed

upland areas will be conducted for at least the first and second growing seasons to
29
determine the success of restoration, including until revegetation thresholds are met,
temporary erosion control devices are removed, and restoration is deemed complete.
6. Monitoring the ROW grant for federal lands – the USFS and U.S. Army Corps of
Engineers will monitor implementation of the MVP mitigation measures on federal lands
to assure that the terms and conditions of the ROW Grant issued by BLM are carried out
(40 CFR 1505.3) and that negative impacts from construction and operation of the
pipeline on federal lands are minimized to the extent possible.
O&M – MVP pipeline and aboveground facilities will be operated and maintained in accordance
with U.S. Department of Transportation regulations in 49 CFR 192, FERC’s regulations at 18
CFR 380.15, and the maintenance provisions found in the FERC Plan (FERC 2013a) and
Mountain Valley’s modified FERC Procedures (FERC 2013b, 2017a). A brief description of the
O&M details is included below. Additional details describing O&M are included in Section 2.6
of the FEIS (FERC 2017a) and Section 3.2 of the BA (FERC 2017b).
1. Pipeline facility O&M – an O&M plan and an emergency plan will be established that
include procedures to minimize the hazards in a natural gas pipeline emergency.
Vegetation removal and maintenance within the 50-ft permanent ROW will be conducted
in accordance with the FERC Plan (FERC 2013a). Regular patrols, inspection, and repair
of the pipeline will be conducted.
2. Aboveground facility O&M – all equipment at aboveground facilities will be routinely
inspected and maintained by Mountain Valley. Routine maintenance checks will include
equipment and instrumentation calibration and safety equipment testing. The
aboveground facilities will be unmanned, with start/stop capabilities controlled from
corporate headquarters. When the safety system or alarms are activated, personnel are
notified and dispatched.
Future Plans and Abandonment – Mountain Valley may seek to expand or modify its facilities in
the future if market conditions change. Any future expansion will require filing an amendment to
its application or a new application to FERC. The expected useful lifespan of the project would
be about 50 years. While there is no termination date for a FERC natural gas certificate, at the
end of the 50-year period, Mountain Valley may need to repair, replace, or abandon facilities.
Any of those actions would require permission from FERC. Abandonment activities would
require an application to FERC under Section 7(b) of the Natural Gas Act. Facilities could either
be abandoned in place or by removal.
Avoidance and Minimization Measures (AMMs) – Conservation measures proposed as part of

the action (measures that will avoid, minimize, and mitigate effects of the proposed action on the
species and/or benefit the species as a whole) are referred to as AMMs in this Opinion. AMMs
are provided in the FEIS (FERC 2017a) and BA (FERC 2017b) and discussed, as applicable, in
Appendix B of this Opinion.
Mountain Valley designed the project to avoid and minimize impacts to the natural environment
by selecting a route that avoids to the extent possible critical or sensitive habitats, national
wildlife refuges, sensitive soils, disruption to mineral resources, environmental hazards, and
geologic/topographic hazards (Mountain Valley 2020). In addition to route selection, Mountain
30
Valley is implementing BMPs for construction, operation, and maintenance of the project to
minimize impacts to wetlands, waterbodies, and associated riparian habitats (Mountain Valley
2020). Changes to AMMs identified in the BA are described below.
E& S Control AMMs – Mountain Valley has implemented the use of enhanced measures for E&S
control throughout the MVP in both VA and WV (M. Eggerding, Mountain Valley, letter to K.
Bose, FERC, May 14, 2020). Enhanced measures implemented beyond the approved E&S
control plans include the following: hydraulically applied or pelletized mulch/tackifier upgraded
from a less protective stabilization measure (approximately 65 miles), waterbar end treatments
upgraded from single compost filter sock (CFS) to triple stack CFS (approximately 85 miles),
increased size of CFS, upgrade of standard silt fence to Priority 1 belted silt retention fence,
erosion control blanket installed in flow path and at the outfall end treatments of waterbars (in
areas with erosive soils), temporary slope drain pipes installed to convey waterbar discharge
across fill slopes where the ROW is benched, among other enhancements. Not all enhanced
BMPs are expected to perform the same and should not be considered identical in terms of their
reduction in expected sediment loads. Since construction commenced in 2018, approximately 65
formal enhancements have been prepared by Mountain Valley’s field engineer in response to
changing site conditions.
Ms Benefitting VASP – (M. Neylon, Mountain Valley, letter to J. Martin, FERC, November
AM
27, 2019):
• Avoiding introduction of exotic/invasive species in organic materials brought onsite
during construction by thoroughly cleaning equipment prior to mobilization to Project
Area.
• Establishing equipment cleaning stations to thoroughly wash all equipment before
transporting it to the next construction spread.
• Implementing selective spot treatment or eradication of exotic/invasive plant species
encountered during construction and operating of the Project.
• In wetlands, agricultural, and residential areas, stripping topsoil from the full width of the
construction ROW and storing it separately from other soils in areas identified as
containing higher than usual concentrations of exotic/invasive plant species.
• Minimizing the amount of time bare soil is exposed during construction to reduce
opportunity for exotic/invasive plants to become established.
Impacts to VASP are expected to be minimized using BMPs for and avoidance of riparian
corridors and wetlands (M. Neylon, Mountain Valley, letter to J. Martin, FERC, November 27,
2019). These include:
• Reducing the construction ROW width from 125 ft to 75 ft at stream and wetland
crossings.
• Expediting construction within any waterbody, effectively reducing disturbance to the
streambed and adjacent soils and the quantity of suspended sediments.
• Clearly marking wetland boundaries and buffers to be avoided in the field with signs
and/or highly visible flagging until construction-related ground-disturbing activities are
complete.
• Avoiding removal of riparian canopy or stabilizing vegetation, if possible. Crushing or
shearing streamside woody vegetation is preferable to complete removal.
31
• Stabilizing waterbody banks and installing sediment barriers (i.e., silt fence, silt logs)
within 24 hours of completing in-stream construction activities. Sediment barriers will be
left in place until the site has been stabilized with perennial vegetation (typically 1 full
growing season after construction).
• Aligning crossings as close to perpendicular to the axis of the waterbody channel as
engineering and routing conditions allow.
• Attempting to maintain, at minimum, a 15-ft section of undisturbed vegetation between
the waterbody and construction ROW where the pipeline parallels a waterbody.
• Conducting construction at stream crossings during low-flow conditions, to the maximum
extent possible.
• Crossing streams using dry-ditch crossing methods by pumping or fluming water around
if water is flowing at the time of construction.
• Conducting pipeline assembly in upland areas unless the wetland is dry enough to
adequately support skids and pipe. Timber mats are used to cross wetlands.
• Minimizing the length of time that the trench is open, to the maximum extent practicable,
especially within wetlands.
• Minimizing the amount of necessary construction equipment traffic to that which is
needed to clear and grade the ROW, excavate the trench, install the pipeline, backfill the
trench, and restore the construction ROW.
• Prohibiting construction equipment, vehicles, hazardous materials, chemicals, fuels,
lubricating oils, and petroleum products from being parked, stored, or serviced within a
100-ft radius of any wetland or waterbody. All equipment will be inspected for leaks by
an inspector at the beginning of the day. Operation will not commence or will cease until
the spill is contained, cleaned up, and collected before operations continue. Leaking
equipment will be removed or repaired the same day.
• Locating as many ATWS as possible at least 50 ft away from the water’s edge. Storing
trench spoil excavated from within a stream at least 10 ft from the top of the bank to
minimize turbidity caused by erosion.
• Avoiding the use of herbicides and pesticides to maintain any portion of the Project ROW
or aboveground facilities, unless requested by a land-management agency or needed to
spot treat exotic/invasive species.
• Installing temporary equipment bridges within the ROW to reduce turbidity and
sedimentation caused by construction and vehicular traffic.
• Minimizing crossing of the pipeline through forested wetlands to the maximum extent
practicable.
• When forested wetlands are crossed, Mountain Valley will maintain no more than a 10-ft
wide, herbaceous strip centered over the pipeline and only remove woody vegetation
within a 30-ft wide strip centered over the pipeline.
• Allowing vegetation in wetlands to recover more rapidly by only removing tree stumps
located directly over the trench line or where safety is a concern.
• Restoring each waterbody to its original configuration and contour to the maximum
extent possible.
• Permanent stabilization of the banks of the waterbody and adjacent areas using erosion
control measures and vegetative cover will occur as soon as possible after construction.
• Using native stone to the extent possible during stream bed restoration and stabilization.
32
• Promptly removing construction materials and related crossing structures from each
waterbody after construction.
• Avoiding the use of surface water sources in VA for hydrostatic testing. Municipal source
waters will be used instead.
• Implementing sustainable water-use practices to ensure water resources and
environmentally responsible stream flows are maintained during water withdrawal
activities. All water withdrawals will be performed in accordance with local, state, and/or
federal regulations to prevent the localized and downstream dewatering of streams. To
prevent crushing, entrainment, or entrapment of mussels and fishes, floating, screened
intakes will be used. The intake end of the pump will contain an appropriately sized
screen (i.e., less than 0.1875-inch mesh size), and withdrawal rates will be reduced (i.e.,
screen approach velocity will be 0.5 ft/second or less).
• Discharging hydrostatic test water to the ground in an upland, well-vegetated area and not
directly to surface waters.
Aquatic Species AMMs –

• Mountain Valley employed enhanced E&S control measures in many places along the
project. Enhanced measures include increasing the size of sediment traps, bolstering
downslope perimeter controls with additional layers (e.g., adding new silt fences or
compost socks), and increasing the use of soil stabilization products on exposed soil
slopes. These measures provide additional protections to aquatic species by minimizing
the potential for sediment to leave the project area and impact waterways during
precipitation events.
• Throughout the project area, Mountain Valley located the ROW and as many ATWSs as
possible at least 100 ft away from the water’s edge of any stream potentially supporting
federally listed aquatic species.
Mountain Valley will implement several methods to reduce potential risks during stream
crossings to isolate the work area and reduce sedimentation (M. Neylon, Mountain Valley,
emails to J. Stanhope, Service, May 29, 2020, and June 10, 2020):
• Open-cut stream crossings will not be started unless the weather forecast reflects limited
or no upcoming rain events.
• Mountain Valley will attempt to complete stream crossings during low flow.
• Environmental monitors will be onsite during the stream crossing to evaluate any
changing conditions.
• Stream crossing crews will be required to have additional sandbags and E&S control
devices, back-up pumps, and spill kits on-site prior to starting the stream crossing.
Additional E&S control devices, including turbidity curtains, will be deployed
downstream if necessary.
• All fuel supplies and pumps will be required to be in secondary containment.
• The stream crossing team will complete stream crossings as quickly as possible to
eliminate the duration in the stream.
• Any temporary impacts to the stream banks and any adjacent areas from the crossing
activity will be restored directly following the stream crossing.
33
Voluntary Mitigation – The BA (FERC 2017b) stated Mountain Valley would, as a voluntary
conservation measure, provide funding for RLP and bat mitigation. Mountain Valley was to
place the funding in an interest-bearing escrow account and identify an appropriate third-party,
non-profit conservation organization to develop a Memorandum of Understanding.
In WV, Mountain Valley is continuing to coordinate with the WVDNR to facilitate bat
mitigation (M. Neylon, Mountain Valley, email to S. Hoskin, Service, June 26, 2020). In VA,
Mountain Valley contributed to the Comprehensive Mitigation Agreement. This Agreement
establishes commitments related to forest conservation and water quality. Funds from this
Agreement have been utilized for projects with the U.S. Endowment for Forestry and
Communities, the Environmental Endowment, and water quality projects with the USGS.
As part of the proposed action, funds will be provided to continue and expand restoration efforts
along the North Fork Roanoke River and expand on an existing successful, landscape approach
that tangibly benefits the RLP within its known occupied range (FERC 2017b). While providing
funds to implement restoration will likely provide conservation benefits for the RLP, its potential
beneficial impact was not considered in the analysis or conclusion below because the nature and
extent of that benefit is not determinable at this time. Further, support will be provided for stream
restoration activities within the range of RLP within the pipeline corridor (FERC 2017b). Proper
stream restoration activities can provide a multitude of environmental and economic benefits
including, but not limited to, the following: improved water quality; augmentation of habitat
diversity; re-establishment of critical watershed functions; increased property and aesthetic
values; and reduction of flood damages and riparian property loss. Targeted restoration activities
in or near waterbodies will take place at 55 stream crossing locations along the action area.
While supporting stream restoration activities will likely provide conservation benefits for the
RLP, its potential beneficial impact was not considered in the analysis or conclusion below
because the nature and extent of that benefit is not determinable at this time.
Furthermore, in collaboration with the VA and WV state environmental agencies, a mitigation

model has been developed for federally listed bats. The mitigation model utilizes interior forest
as the benchmark to which habitat impacts are compared. The goal of the model is to identify the
quantity of acres required to fully offset forest impacts from the MVP. Although negotiations
with the WVDNR are ongoing, Mountain Valley has agreed to place funds in an interest bearing
account for the purchase of optimal bat habitat that is essential to the recovery of the species,
throughout VA and WV. In VA, Mountain Valley contributed to the Comprehensive Mitigation
Agreement. This Agreement establishes commitments related to forest conservation and water
quality. The amount of acreage for WV will be determined in coordination with the Service and
applicable state agencies and a Memorandum of Understanding with the WVDNR is being
developed to establish criteria for ensuring the funds from the conservation escrow account are
disbursed in accordance with the final mitigation proposal. While implementation of this
mitigation will likely provide additional conservation for the Ibat, its potential beneficial impact
was not considered in the analysis or conclusion below because the nature and extent of that
benefit is not determinable at this time.
34
ACTION AREA
The action area is defined (50 CFR 402.02) as “all areas to be affected directly or indirectly by
the federal action and not merely the immediate area involved in the action.” As the regulation
indicates, the action area constitutes the physical area (land, air, or water) affected by the project
as determined through deconstruction of the action into its component parts. This determination
is not influenced by the presence or location of listed species or critical habitat, but should be
used to help generate the species list. The potential effects to listed species are not considered in
this delineation of the action area and are evaluated after the physical area affected by the project
has been identified.
As described in the BA (FERC 2017b), the action area was defined by a combination of effects
related to movement of dust, light levels, noise, and water quality. The extent of expected effects
from the project associated with dust and light are unchanged from the BA (FERC 2017b).
Additional analyses, described below, indicate that the extent of noise and water quality effects
from the project warrant revising the action area from the 2017 BiOp. FERC reviewed the
information provided below related to revising the action area and agreed with the revised action
area (J. Martin, FERC, letter to C. Schulz, Service, May 7, 2020).
Action Area for Dust Effects – The extent of dust impacts are not expected to exceed 350 ft from
the project construction ROW (Mountain Valley 2020).
Action Area for Light Effects – Any light emitted is not expected to travel more than 1,200 ft
from the project construction ROW (Mountain Valley 2020).
Action Area for Noise Effects (Mountain Valley 2020) – Ambient or background sound levels
are those emanated from natural and artificial resources that currently exist on a given landscape
and are often referred to as baseline noise levels. The magnitude and frequency of ambient noise
will vary over a 24-hour period and throughout the year due to weather conditions, vegetative
cover, wildlife, and human activity. Noise impacts are determined by quantifying increases over
ambient levels caused by a given activity. Humans cannot discern less than a 3 dBA (A-weighted
decibels) increase, an increase of 5 dBA is considered clearly noticeable, and increases of 10
dBA are perceived as a doubling of noise or becoming twice as loud.
Existing ambient conditions were estimated using American National Standards Institute (ANSI)
S12.9-2018/Part 3 (ANSI/ASA 2013 as cited in Mountain Valley 2020) and information
obtained from project-specific ambient measurements. The ANSI standard provides estimated
ambient equivalent (Leq) sound levels based on land-use categories. The lowest ambient sound
levels are provided for areas described as “very quiet suburban and rural residential,” which
correspond to areas with population densities of less than 200 people per square mile. The
estimated ambient sound level for this land-use category is 40 dBA during daytime hours and 34
dBA during nighttime hours.
The sound levels from the ANSI standard were compared to the ambient noise levels measured
at proposed compressor stations, interconnect sites, and 1 stream crossing. The measured
ambient noise levels vary greatly depending on location along the route and differ from day (34.7
to 57.9 dBA) to night (27.8 to 53.7 dBA). The highest and lowest measured values were found to
35
be not representative of the project area, and the majority of the measurements were above the
ANSI standards. Therefore, the measured results support use of the ANSI standards for “very
quiet suburban and rural residential” for ambient conditions along the project route even though
higher ambient sound levels are anticipated in many areas. This approach was taken to identify a
conservative estimate of ambient conditions.
On behalf of Mountain Valley, SLR International Corporation modeled sound attenuation for
noise levels produced during project development using the ISO 9613-1 standard calculation
within the Cadna/A propagation software. To evaluate the effects of varying meteorological
conditions on sound propagation, the attenuation calculations were conducted not only for
standard atmospheric conditions (i.e., 59 degrees Fahrenheit and 60% relative humidity [RH])
but also for the general range of temperature and RH conditions for each season that will result
in the least amount of attenuation (i.e., the highest sound levels, thus a broader action area)
(Table 15). In general, attenuation decreases with increasing humidity, but the relationship is not
linear and varies by octave band.
Table 15. Distances construction noise attenuates to ambient conditions. Nighttime noise ambient level is 34 dBA;
loudest nighttime construction activity is 91 dBA at 50 ft. Daytime noise ambient level is 40 dBA; loudest daytime
construction activity is 94 dBA at 50 ft (Mountain Valley 2020).
Season, Temperature, RH Nighttime Noise Daytime Noise
Winter, 26°F, 100% 10,750 ft (2.0 miles) 8,775 ft (1.7 miles)
Spring/Autumn, 63°F, 100% 9,750 ft (1.9 miles) 7,800 ft (1.5 miles)
Summer, 89°F, 100% 9,675 ft (1.8 miles) 7,475 ft (1.4 miles)
Standard, 59°F, 60% 9,600 ft (1.8 miles) 7,800 ft (1.5 miles)
The sounds produced by the noisiest construction equipment used during nighttime and daytime
hours under varying seasonal and weather conditions will have attenuated to ambient level of 34
dBA at night, and 40 dBA during the day, within 9,600 to 10,750 ft (1.8 to 2.0 miles) and 7,475
to 8,775 ft (1.4 to 1.7 miles), respectively, from the source. Thus, sound from the project has a
measurable impact no farther than 10,750 ft (2.0 miles) from the project construction ROW.
Action Area for Changes in Water Quality (Mountain Valley 2020) – In response to additional
information received since issuance of the 2017 BiOp, Mountain Valley reevaluated the action
area in aquatic systems. Specifically, Mountain Valley refined its methodology for accounting
for potential increased sediment to streams and rivers attributed to the project’s construction,
including construction activities in upland areas.
On behalf of Mountain Valley, Geosyntec Consultants, Inc. prepared a Hydrologic Analysis of

Sedimentation (Appendix B of the SBA [Mountain Valley 2020]) that was evaluated by the
Service, USFS, and BLM, as well as each agencies’ chosen expert reviewers, and determined to
provide an appropriate means of delineating the aquatic action area (J. Martin, FERC, letter to C.
Schulz, Service, May 7, 2020). Based on the expert reviews of the sedimentation analysis and
FERC’s determination, the Service accepted that the sedimentation analysis provided an
appropriate means of defining the action area, but also added the mixing zones described below.
The final Hydrologic Analysis of Sedimentation report was revised to address comments
provided by those agencies and associated expert reviewers. The Hydrologic Analysis of
Sedimentation estimated potential delivered sediment loads to 14 streams that (1) exhibit suitable
habitat for at least 1 threatened, endangered, or sensitive aquatic species and (2) include project
36
ROW within their corresponding watersheds. The evaluation used the Revised Universal Soil
Loss Equation (RUSLE) (Renard et al. 1997 as cited in Mountain Valley 2020) at a watershed
scale together with RUSLE Version 2 (RUSLE2) (Renard et al. 2011 as cited in Mountain Valley
2020) at a site-specific scale. As described in detail in the Hydrologic Analysis of Sedimentation
report, the RUSLE approach accounts for seasonal rainfall, topography, construction sequencing,
climate, soils, vegetation, and management practices. The standard E&S control BMPs approved
by VDEQ and WVDEP were also incorporated into the model with clearing and grading activity
schedules and subsequent proposed construction tasks. By modeling standard BMPs, the models
underestimate the amount of erosive protection provided in the E&S control plans and likely
overpredict the amount of sediment loss during construction and restoration.
The Hydrologic Analysis of Sedimentation yielded conservative estimates (the assumptions to

ensure conservativism are detailed in Section 6.2 of the Hydrologic Analysis of Sedimentation)
of delivered sediment loads to each analyzed stream (stream of interest) based on 4 scenarios: (1)
Baseline (pre-existing conditions), (2) Felled (trees felled and left in place prior to clearing), (3)
During Construction (from time of clearing through seeding), and (4) Restoration (one-year
duration from completion of seeding) (Mountain Valley 2020). Comparing the latter 3 scenarios
to Baseline conditions allowed for determination of the relative impact of the project activity
scenarios on the streams of interest.
These results reflect estimated sedimentation loads from all project construction activity in the
respective watersheds, in addition to baseline sediment loads from other sources in the
watersheds (Mountain Valley 2020). The loads were determined using stream trace downs to
account for the locations upstream and downstream of the ROW crossings that may receive
sediment inputs from the project within the corresponding watersheds, as opposed to the
assumption that all sediment enters a stream only at the ROW or AR road crossings.
Delineation of Aquatic Action Area (Mountain Valley 2020) – To identify aquatic areas that
would be reasonably expected to experience measurable or detectable environmental effects
from the project, Geosyntec undertook an analysis to identify the extent of the National
Hydrography Dataset (NHD) surface water features (i.e., streams) that may receive and transport
measurable sediment attributable to the project. Sediment from the project may enter streams
through 2 pathways: (1) sediment from direct impacts where the project crosses the stream; or
(2) sediment from upland workspaces delivered via overland flow to streams.
For every stream segment that may receive measurable sediment attributable to the project, the
start of the aquatic portion of the action area is defined as the most upstream point at which
measurable sediment attributed to the project may enter an NHD stream segment via 1 of the 2
pathways as described above. The farthest upstream point was identified through the use of the
Trace Downstream tool in ArcGIS (ESRI 2020 as cited in Mountain Valley 2020) using a digital
elevation model of the watershed topography.
The downstream extent of the aquatic portion of the action area for each stream segment that
may receive measurable sediment attributable to the project is defined in 1 of 2 ways: (1) the
downstream point at which the stream becomes impounded to an extent that water velocity slows
and sediment settles out or (2) the downstream point at which the project’s estimated maximum
37
increase in delivered sediment concentration to the stream is attenuated to the point where an
increase in measurable sediment concentration (for example, total suspended solids or suspended
sediment concentration) from the project could not be discerned from background sediment
concentrations (i.e., the concentration attenuation threshold). The concentration attenuation
thresholds are 4.1 mg/L and 2.7 mg/L for VA and WV, respectively, which are based on the
point at which small increases in concentration caused by the project could be discerned from
background concentrations. Mountain Valley (2020) provides a detailed description of the
analysis and assumptions for determining these thresholds. In summary, these thresholds are
based on the standard deviation associated with observed average background sediment
conditions for each state because a measured increase less than the standard deviation for the
background concentration would not be considered a reliable indication that any increase has
occurred. This action area is inclusive of stream segments upstream and downstream of dry,
open-cut crossings.
For stream segments that the project crosses but is not expected to result in a measurable increase
in sediment (e.g., streams that will be crossed using trenchless methods [i.e., conventional bore,
microtunnel, or HDD] and will not experience measurable sedimentation from upland activities),
the start of the aquatic portion of the action area is the point 200 m upstream of the crossing and
the downstream extent is the point 800 m downstream of the crossing. Although these areas are
not expected to experience discernible increases in sediment concentration, including them in the
aquatic portion of the action area is appropriate to account for physical effects, such as increased
sunlight due to tree-clearing (Alberts et al. 2018) that may be experienced due to clearing and
work in riparian areas at the stream crossing. These effects are not expected to be discernible
beyond the width of the ROW, but the 1,000 m area is conservatively used to meet the screening
function of the action area definition.
In addition to the aquatic action area described above, the Service is including the mixing zone in
a stream segment where sediment from tributaries (tributaries crossed or receiving sediment from
construction activities in the upland area) is delivered to streams/rivers where listed aquatic
species and/or proposed critical habitat are potentially present (i.e., “streams of interest”).
Although the sediment increases for those tributaries are carried into, and reflected in the results
for the streams of interest, the analysis did not take into account the mixing zone area where the
sediment is initially diluted by the receiving waters, suspended sediment concentrations will be
elevated, and sediment may be deposited. The size of a mixing zone depends on a number of
factors including the suspended sediment concentrations in the tributary, concentrations in the
receiving water, tributary discharge volume and flow rate, receiving water flow rate and
turbulence, and the geometry of the tributary and the receiving water boundaries (U.S.
Environmental Protection Agency [USEPA] and Corps 1998). Due to the large number of
variables, each individual mixing zone area could not be quantified. Instead, the mixing zones
were qualitatively assessed and were conservatively estimated to fall within an area extending
200 m upstream and 800 m downstream, or as specified in Appendix D Table 1, of the point
where the tributary enters the stream of interest. The basis for this estimate is provided below. At
the Service’s request, Mountain Valley further assessed and identified mixing zones in any
waterbody, in addition to the streams of interest (P. Moore, Beveridge & Diamond PC, emails to
J. Stanhope, Service, August 14, 2020 and August 18, 2020). The mixing zones were identified
at all locations where the calculated sediment concentration in a tributary to any receiving
38
waterbody (regardless of whether or not the receiving water is a stream of interest) drops below
the concentration attenuation threshold (i.e., the point of discernibility as defined in the aquatic
action methodology above) at the receiving waterbody. In other words, the mixing zone location
is when the tributary concentration is greater than the concentration attenuation threshold at the
point it flows into the receiving water. These additional mixing zones are also considered part of
the aquatic action area. The Service reviewed the additional mixing zones in the action area and
verified that they do not change our concurrence with FERC’s Section 7 determinations (C.
Schulz, Service, letter to J. Martin, FERC, July 9, 2020).
Summary of Action Area – The action area is defined as the project construction ROW plus the
distance where (Mountain Valley 2020):
• meaningful concentrations of dust are expected to travel outside the project area,
estimated at 350 ft;
• emitted nighttime light is expected to travel from the project area, estimated at 1,200 ft; •
air or substrate-borne sound or vibration travels, estimated at 2.0 miles; and
• the dilution evaluation within streams (performed by stream reach) yield concentrations
above the concentration attenuation threshold; and 800 m downstream/200 m upstream or as
specified in Appendix D Table 1 in any stream crossed by the project where evaluation
indicates that no measurable increase in project-related sediment is expected to occur;
and the mixing zones where sediment from tributaries where the tributary sediment
concentration is greater than the concentration attenuation threshold at the point it flows
into the receiving water.
The scope of the terrestrial impacts described above all lie within the 2.0-mile area associated
with the maximum distance that sound from the project will occur above ambient conditions. As
a result, 2.0 miles is used for the terrestrial portion of the action area. The aquatic portion of the
action area is
(1) the distance at which the concentration attenuation threshold is reached in each stream
expected to experience a measurable increase in project-related sediment, or
(2) 800 m downstream and 200 m upstream – the area in which riparian clearing
potentially could influence stream conditions – for any stream that the project crosses that
is not expected to experience a measurable increase in project-related sediment, or
(3) the mixing zone in a stream segment where sediment from tributaries (crossed or
receiving sediment from the project) is delivered to streams of interest.
As such, the action area for this project consists of all lands within 2.0 miles of the boundaries of
the project area and approximately 1,163 miles of potentially impacted streams (note that the
1,163 miles does not include mixing zone distance due to qualitative assessment) (Figure 3).
Detailed maps of the action area are in Appendix D of the SBA (Mountain Valley 2020).
39
Figure 3. Action area overview.
40
STATUS OF THE SPECIES
Per ESA Section 7 regulations (50 CFR 402.14(g)(2)), it is the Service’s responsibility to
“evaluate the current status of the listed species or critical habitat.” To assess the current status of
the species, it is helpful to understand the species’ conservation needs. The Service frequently
describes conservation needs via the conservation principles of resiliency (ability of
species/populations to withstand stochastic events which is measured in metrics such as
numbers, growth rates), redundancy (ability of a species to withstand catastrophic events which
is measured in metrics such as number of populations and their distribution), and representation
(variation/ability of a species to adapt to changing conditions which may include behavioral,
morphological, genetics, or other variation) (collectively known as the 3 Rs) (Shaffer et al.
2002, Wolf et al. 2015, Smith et al. 2018). The Service can then apply the appropriate regulatory
framework and standards to these principals to address a variety of ESA-related decisions (e.g.,
listing status, recovery criteria, jeopardy and adverse modification analysis). For Section 7(a)(2)
purposes, the 3 Rs can be translated into the reproduction, numbers, and distribution (RND) of a
species.
Species status assessments (SSAs), listing rules, recovery plans, and 5-year reviews can serve as
sources of information to describe the conservation needs of a species. Below, we summarize
relevant information regarding each species conservation needs and their status in terms of
meeting those needs.
Virginia spiraea (VASP)
The Service listed VASP as threatened on July 21, 1989 (54 FR 30577). The following is a
summary of VASP general life history drawn from the VASP recovery plan (Service 1992a),
reports, and peer-reviewed publications.
VASP is a perennial shrub that occurs in the Southern Blue Ridge and Appalachian (including
Cumberland) Plateau physiographic provinces (Ogle 1991a, 1991b; Service 1992a). VASP is
widely scattered within 7 states (Ohio [OH], WV, VA, Kentucky [KY], Tennessee [TN], North
Carolina [NC], and Georgia [GA]) and is recorded historically in Pennsylvania (PA) and
Alabama (AL). The species is clonal, with a root system and vegetative characteristics that allow
it to thrive under disturbance regimes in streams and rivers. VASP habitat includes scoured
banks of high gradient, second- and third-order streams and meander scrolls, point bars, natural
levees, and braided features of lower stream reaches (i.e., often near stream mouth). The riverine
sites where VASP occur are frequently characterized as having enough erosion to inhibit
competition from trees and shrubs (i.e., less shading and greater sunlight), but also having
depositional patterns to allow establishment of vegetative propagules (plant fragments from
parent plant, which is an example of asexual reproduction). The single exception to species’
riverine habitat is a population growing in a wet meadow along a roadway in WV.
VASP is a 1-3 m tall shrub with often profuse branching patterns and 5-22 centimeter (cm) wide
corymbs (flower clusters) with yellowish/greenish to clear, pale white color. Its leaves are
shaped ovate to lanceolate, 2-5 cm wide by 3-15 cm long, acute, entire or completely serrate, and
glaucous beneath. Flowering is rare on first-year plants and occurs from late May to late July.
41
Although flowers attract insects, the species primarily reproduces asexually by vegetative
propagation (Service 1992a, 2008; Ogle 2008). The species is capable of sexual reproduction,
but seed production is rare and natural establishment through germination (e.g., seedlings) has
never been documented (Brzyski and Culley 2011, 2013). In controlled experiments, seeds have
been successfully germinated at low rates. Dispersal has only been observed by downstream
distribution of propagules and no dispersal upstream or between drainage systems has been
documented.
Conservation Needs
The Service finalized a recovery plan for VASP in 1992. The recovery objective for VASP is to
delist the species. The Service outlined the following conditions that would result in the species
no longer meeting the definition of a threatened species (Service 1992a): (1) 3 stable populations
are permanently protected in each drainage where populations are currently known, (2) stable
populations are established on protected sites in each drainage where documented specimens
have been collected, (3) potential habitat in the states with present or past collections has been
searched for additional populations, and (4) representatives of each genotype are cultivated in a
permanent collection.
The primary actions to address these conditions include: (1) Protect existing populations and
essential habitat. (2) Conduct rangewide searches in areas of suitable habitat for additional
populations. (3) Conduct site-specific habitat manipulation to maintain existing populations. (4)
Distinguish between N (the number of genetically different plants) and n (the number of
genetically identifiable nodules or clones that are in reality a single plant) individuals and
identify genetically different populations. (5) Maintain representative material from each known
genotype in permanent cultivation. (6) Investigate the species’ environmental tolerances and
habitat characteristics. (7) As appropriate, reintroduce VASP in additional drainage systems
within the species’ historical range. (8) Develop an information packet for landowners and land
managers. (9) Evaluate the effectiveness of protection and management programs and redirect
efforts as necessary.
Current Condition
Now that we have described the species’ basic needs, we can assess its current condition. It is
difficult to determine population trends for VASP due to limited surveys and monitoring and
varying terminology through time. Terms such as "clone," "population," "element occurrence"
(EO), and “sub-EO” have been used to refer to an occurrence of one or more VASP stems found
in a given location. An EO is the spatial representation of a species or ecological community at a
specific location and originated by State Natural Heritage Programs after 1992. There is no
standard conversion factor between population/clone counts and EO/sub-EO counts, thus there is
a lack of clarity about the relative abundance and abundance trends of this species since the
recovery plan (Service 1992a). Uncertainty about genetic variation among plants within and
between sites further complicates efforts to assess population trends. However, the best available
scientific information is from the experts from state natural resources agencies and the USFS and
they have estimated that VASP populations are stable in GA, NC, WV, VA, and OH, increasing
in TN, and decreasing in KY (Ogle 2008). Most experts caution that estimates were based on
anecdotal or casual observation; little, if any, quantitative data are available for these
42
determinations. Table 16 provides an estimate of the number of known VASP sites rangewide in
1992 and 2007.
Table 16. Number of VASP clones/EOs/sub-EOs in 1992 and 2007 (Ogle 2008, Service 2008).
State Number of Clones in 1992 Number of EOs/sub-EOs in 2007
AL 0 (historical record prior to 1992) 0
PA 0 (historical record prior to 1992) 0
GA 7 8
KY 20 17
Louisiana misidentification 0
NC 12 36
OH 3 5
TN 20 32+
VA 18 29
WV 27 109
All States 107 236
Threats
The primary factors influencing the status include risks posed by a limited range with increasing
amounts of fragmentation within river basins leading to isolation and reduced genetic variation,
invasive species, herbicide application, land disturbance along river banks, changes in
hydrology
due to impoundments and water release regulation, and recreational use of habitat (Service
1992a, 2008; Brzyski and Culley 2011, 2013; Brzyski et al. 2014; Horton et al. 2015;
NatureServe 2019). Anthropogenic disturbance of land along streams and rivers, due to activities
such as vegetation clearing, road and bridge construction/maintenance, and electric/gas lines
placement, may impact VASP by directly crushing/removing the plants and altering their
riverine habitat (Ogle 2008). These types of activities may also introduce invasive, non-native
plants, such as Japanese knotweed (Reynoutria japonica), purple loosestrife (Lythrum salicaria),
Japanese spiraea (Spiraea japonica), and multiflora rose (Rosa multiflora) , which may shade and
outcompete VASP. Another threat to VASP are dams, which create impoundments and flood
VASP habitat upstream of the dam. Downstream, dams regulate and stabilize the flow, which
limit natural scouring during flood events. VASP is dependent on the flood events to provide the
erosional and depositional forces that inhibit competition from other plants and disperse and
promote establishment of propagules.
Summary
There are multiple (redundancy) populations in each state and these populations are spread
across the geographic range of the species in multiple states (GA, KY, NC, OH, TN, VA, and
43
WV) (representation). Information about the size/abundance and health of these populations
(resiliency) across the range is limited due to lack of consistent monitoring approaches and
survey efforts. Many of the known populations of VASP are on publicly-owned land, which
generally provides protection from habitat loss due to development. Since the recovery plan was
published (Service 1992a), populations in 3 new drainages have been discovered in TN, WV,
and NC and 1 population with historical documentation has been rediscovered in NC (Stine
1993, Shaw and Wofford 2003, Gardner and Moser 2007, Ogle 2008, Service 2008). Historical
records from PA and AL have been examined and verified, but the species is not currently
known from either state. Fairly extensive areas of appropriate habitat exist in both PA and AL,
and the species may be rediscovered there. The VASP is established in cultivation, with several
extant collections in arboreta and genetic conservancies. Studies of genetic diversity and
structure for populations in VA, NC, WV, and KY, as recommended in the species recovery plan
(Service 1992a), are in progress and will inform and guide future propagation/reintroduction
efforts, if appropriate, and help determine which additional genotypes should be added to
cultivation in permanent collections.
In summary, as a whole, the rangewide status of the species appears to be stable, with some
populations improving and some declining (Ogle 2008, Service 2008) and the Service
recommended maintaining the current classification as a threatened species in its draft 5-year
review (Service 2008). For a more comprehensive account of the species description, life history,
population dynamics, threats, and conservation needs, refer to
https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=Q2R1.
Roanoke logperch (RLP)
The Service listed the RLP as endangered on August 18, 1989 (54 FR 34468). The following is a
summary of RLP general life history drawn from the RLP recovery plan (Service 1992b), the
RLP 5-year review (Service 2007a), and peer-reviewed publications.
The RLP is a small darter (fish) found in VA and NC. Genetic analysis (Roberts et al. 2013) of
RLP indicated a dispersal extent of up to 80 kilometers (km); however, median lifetime dispersal
distance is 6-24 km (Roberts et al. 2016a). The RLP occupies medium to large warmwater
streams with moderate to low gradient (Jenkins and Burkhead 1994). Microhabitats with loosely
embedded substrate free of silt appear to be critical to this species (Rosenberger and Angermeier
2003). Rosenberger and Angermeier (2003) also found that habitat use by the RLP varied among
age classes and between rivers. In the Roanoke River, adults use deep, fast-flowing stream
sections in areas often over gravel substrate. They were observed most frequently in runs,
occasionally in riffles, and rarely in pools. Subadults in the Roanoke River were also found in
runs, but within slightly shallower areas and slower velocity habitats than adults. Young-of-year
(YOY) were found in backwater habitats, secondary channels, and the shallow edges of pools,
riffles, and runs. Adults and subadults in the Nottoway River were found in pools, and
occasionally runs, in deep, low-velocity habitats over sand and gravel (Rosenberger 2002).
However, as observed in the Roanoke River, subadults were found in lower velocities and
slightly more embedded microhabitats than adults (Rosenberger and Angermeier 2002).
Male RLP mature in 2 years and most females mature in 3 years (Burkhead and Jenkins 1991).
Maximum age has been documented at about 6.5 years (Jenkins and Burkhead 1994). Spawning
44
occurs in April or May. Jenkins and Burkhead (1994) observed RLP spawning behavior and
reported that several males acted aggressively to each other upon locating a female. Eggs are
adhesive and deposited on the stream bottom (Jenkins and Burkhead 1994) where they are
subsequently fertilized. Darters, such as the RLP, that bury or attach their eggs provide no
subsequent parental care (Mattingly et al. 2003).
RLP are sight feeders and flip rocks with their snout to expose invertebrates and ingest the
exposed prey (Jenkins and Burkhead 1994, Rosenberger and Angermeier 2003). The species
does not actively select certain taxa but consumes most food items encountered. Young feed
primarily on chironomid (non-biting midge) larvae and adults primarily consume caddisfly
larvae and chironomids (Burkhead 1983).
Conservation Needs
The Service finalized a recovery plan for the RLP in 1992. The recovery objectives for RLP are
to downlist to threatened then, once achieved, delist the species. The Service outlined the
following conditions that we believed would result in the species no longer meeting the
definition of an endangered species (Service 1992b): protecting and enhancing habitat containing
RLP populations, and expanding populations within river corridors that either now support this
species or supported it historically.
The primary actions to address these criteria include: (1) Maintain and increase the health and
vigor of present populations through a watershed-level conservation approach that addresses
sediment loading and preserves ecological processes that provide ephemeral, seasonal, and
persistent types of habitat required over RLP ontogeny; (2) Evaluate the feasibility of
propagating RLP and determine whether a controlled propagation and
reintroduction/augmentation plan should be developed; (3) Increase connectivity of RLP
populations by identifying major and minor artificial movement barriers and eliminating them
when feasible; (4) Prevent and reduce the risk of catastrophic extirpation from toxic spills
through identification, evaluation, and improvement of present and proposed road crossings,
agricultural, and industrial facilities; (5) Survey streams with suitable habitat and continue to
identify habitat that is potentially suitable for RLP reintroduction/augmentation; (6) Revise the
recovery plan to include measurable criteria that specifically address each of the relevant listing
factors and incorporate currently available information about population abundance and
distribution (Service 2007a).
Current Condition
Now that we have described the species basic needs, we can assess its current condition. It is
difficult to assess long-term population trends due to the expanded range resulting from new
surveys and changing methodologies used to identify populations. Four populations were known
at the time the RLP recovery plan (Service 1992b) was written:
1. Upper Roanoke,
2. Pigg,
3. Smith, and
4. Nottoway Rivers.
45
The RLP 5-year review (Service 2007a) defined populations as “occupied areas not separated by
a major dam....” Using this criterion, 8 populations were identified:
1. Upper Roanoke River drainage downstream to Niagara Dam,
2. Middle Roanoke River drainage downstream of Leesville Lake,
3. Upper Pigg River drainage upstream of Power Dam,
4. Middle Pigg River drainage downstream of Power Dam,
5. Smith River drainage upstream of Philpott Reservoir,
6. Smith River drainage downstream of Philpott Reservoir to the headwaters of Martinsville
Dam,
7. Smith River drainage below Martinsville Dam, and
8. Nottoway River drainage.
However, the RLP 5-year review based the discussion of population status on the 5 major
rivers/river reaches (Upper Roanoke River, Middle Roanoke River, Pigg River, Smith River, and
Nottoway River) that support the 8 identified populations. The 5-year review further divided the
Smith River into Upper and Lower. The resulting summary table (Table 17) of threats to RLP by
population from the RLP 5-year review (Service 2007a) included 6 populations and appeared to
combine the Pigg River (populations 3 and 4 in the list above) and the downstream portion of the
Smith River (populations 6 and 7 in the list above).
Table 17. A summary of threats (Service 2007a) and the degree to which each RLP population is at risk based on the
particular threat (N = not a present threat; L = exists as a low threat; M = significantly threatens a subset of the range
occupied by RLP; H = significantly threatens the known range of the population; U = unknown).
River River
Upper Middle Pigg River
Threat Roanoke River Roanoke River Upper Smith
Lower Smith Nottoway River
Population
Large dams M M M H H N Urbanization H U M L M L
Agriculture / forestry HUMMML
Channelization M U N N U N Road building H U H L M L Toxic spills L U H M H L Riparian loss M U

M M H L Small barriers L U M U U U
Water LUUUUL
withdrawals
The 5-year review (Service 2007a) identified genetic analysis as a tool to further refine the
population designation. Subsequent to the 5-year review (Service 2007a), through additional
survey efforts, RLP were discovered in new locations in VA and RLP were documented in NC.
Including results of these additional survey efforts, population structure was re-assessed based on
rangewide genetics work (Roberts et al. 2013). Based on the genetic analysis 7 isolated RLP
populations were identified:
1. Roanoke,
2. Pigg,
3. Goose,
4. Otter,
46
5. Lower Smith,
6. Upper Smith, and
7. Nottoway Rivers.
Roberts et al. (2013) conducted their genetic analysis prior to the discovery of many of the NC
populations. Genetic analysis by Roberts and Strickland (2017) delineated the genetic structure
of RLP in NC and compared those findings to Roberts et al. (2013). Results of Roberts and
Strickland (2017) indicated the sampled segments of the lower Smith, Dan, and Mayo Rivers and
Big Beaver Island Creek were all the same population and have been termed the “Dan
metapopulation.”
As part of their population viability analysis Roberts et al. (2016b) updated Roberts (2012)
calculations of population size for 5 of the 7 populations. A minimum viable population (defined
as the minimum number of individuals sufficient to sustain 99% probability of population
persistence in 100 years) could not be calculated for the Lower Smith and Nottoway Rivers
populations because comparable estimates of fish catch or patch spacing were not available. The
Lower Smith and Nottoway Rivers populations were excluded from analysis and a refined
population estimate was not calculated for these 2 populations. The calculated extinction risk for
the largest population, Roanoke River, was always near 0. The Otter River population was the
smallest and had a higher, more variable extinction probability. They characterized catastrophes
as anthropogenic disturbances that cause fish kills that could “acutely and dramatically reduce
the size of populations...” Environmental events such as floods and droughts were not included
because they occur frequently and did not seem to dramatically affect RLP population size.
Three catastrophe scenarios were developed 1) no catastrophes, 2) a less severe catastrophe, and
3) a more severe catastrophe. The severity of the catastrophe was the relationship of the total fish
kill to the extent of the river. For example, a total fish kill of 10.1 km equals 8.6% of the known
range extent (118 km) in the Roanoke River and 19.1% of the known range in the Otter River. In
this example the total fish kill in the Roanoke River would be considered a less severe
catastrophe and a more severe catastrophe in the Otter River. They calculated all populations had
a greater than 95% probability of persisting for the next 100 years under less severe catastrophe
scenario. Under the severe catastrophe scenario they calculated only the Roanoke and Pigg
Rivers populations would be considered viable. They tentatively calculated a minimum viable
population of 4,200 adults for the species overall. Roberts (2018) calculated a population
estimate for the Dan metapopulation as part of the development of a decision document guide for
RLP augmentation. Table 18 summarizes the rangewide status of the populations as currently
defined.
47
Table 18. Status of RLP populations rangewide.
Population Status
Roanoke Due to the limited survey data from this waterbody, it is

River unknown whether this population is increasing,
declining, or stable (Service 2007a). Estimated current
population size is 2,111 (Roberts et al. 2016b). Roberts
(2018) reported this population was geographically
Pigg River
stable or expanding but had a high isolation risk.
Due to the limited survey data from these waterbodies, it

is unknown whether these populations are increasing,
declining, or stable (Service 2007a). Estimated current
Goose population size is 2,106 (Roberts et al. 2016b). Roberts
(2018) reported this population was geographically
stable or expanding.
Smith River (Lower and Upper) was defined as 1

Otter population in 2007, at the time the population was
considered vulnerable to fragmentation from Philpott
Dam, Martinsville Dam, and small population sizes, but
Dan populations have probably remained stable since RLP
metapopulation (all portions of the Dan sub-basin was listed (Service 2007a). Estimated current population
except the upper Smith River) size is 11,685 (Roberts 2018). Roberts (2018) reported
this population was geographically stable or expanding.
Upper Smith
River (upstream of Philpott
Smith River (Lower and Upper) was defined as 1
Reservoir)
population in 2007, at the time the population was
considered vulnerable to fragmentation from Philpott
Dam, Martinsville Dam, and small population sizes, but
Nottoway River populations have probably remained stable since RLP
Data indicate that the RLP population in the Upper was listed (Service 2007a). Estimated current population
Roanoke River is dynamic but shows no signs of decline size is 13,285 (Roberts et al. 2016b). Roberts (2018)
(Service 2007a). Estimated current population size is reported this population was numerically and
16,875 (Roberts et al. 2016b). Roberts (2018) reported geographically stable.
this population was numerically and geographically
stable. Surveys indicate that threats from siltation from
agricultural and silvicultural activity have declined, and
Population appears to be increasing in size and range the population is increasing in range and in density
since the 1975 chemical spill that killed most of the (Service 2007a). Estimated current population size is
individuals in the mainstem Pigg River. Estimated 16,686 (Roberts et al. 2016b). Roberts (2018) reported
current population size is 9,281 (Roberts et al. 2016b). this population was numerically and geographically
Roberts (2018) reported this population was numerically stable.
and geographically stable.
The primary factors influencing the RLP status include risks posed by large dams and reservoirs,
small dams and barriers to movement, watershed urbanization, increased sediment and
deposition from agricultural and silvicultural activities, channelization, roads, toxic spills,
riparian/woody debris loss, and water withdrawals (Service 2007a). Climate change is an
increasing threat to RLP with storm events increasing in frequency and intensity, resulting in
increased periods of higher water volume, flow rates, and turbidity that affect the RLP’s abilities
to forage, shelter, and reproduce.
Summary
There are multiple (i.e., 7) (redundancy) populations spread across the geographic range of the
species (representation); however, the health (resiliency) of those populations varies across the
range. Population size ranges from 2,106 to 16,875 individuals in the 7 populations (Roberts
48
2012, Roberts et al. 2016b). The criteria for identifying a population has changed over the years
so we cannot directly assess long-term trends. The RLP populations in VA appear to be stable or
increasing (Service 2007a; J. Roberts, Georgia Southern University, email to S. Hoskin, Service,
June 4, 2019). Population size of 4 of the 7 populations is above the minimum viable population
level of 4,200 adults for the species overall. Roberts (2018) developed a document for resource
agencies to help determine whether and where to augment RLP populations. In recent years the
Service and its partners have removed large and small dams and have worked with landowners to
improve their practices to help reduce sedimentation into RLP waterbodies.
In summary, as a whole, the rangewide status of the species is improving and the Service
recommended maintaining the current classification as an endangered species in its last 5-year
review (Service 2007a). While the recovery criteria have not yet been achieved, some of the
identified threats have been reduced. For a more comprehensive account of the species
description, life history, population dynamics, threats, and conservation needs, refer to:
https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=E01G.
Candy darter (CD)
The Service listed the CD as endangered on November 21, 2018 (83 FR 58747). The following is
a summary of CD general life history drawn from the CD species status assessment (Service
2018a), reports, and peer-reviewed publications.
The CD is a small, freshwater fish endemic to second order and larger streams and rivers within
portions of the upper Kanawha River basin, which is synonymous with the Gauley and greater
New River watersheds in VA and WV. The CD is a habitat specialist, and is typically found in
high- to moderate-gradient, cool- or cold-water stream ecosystems, although warm-water
conditions may also be tolerated. The species is most often found in riffle, glide, or run habitats,
and is relatively uncommon in pool habitats. CDs are generally intolerant of excessive stream
sedimentation and resulting cobble embeddedness (the degree to which cobbles are covered in
fine-sized substrate particles). However, young-of-the-year and juveniles may be more capable
of utilizing habitats with slower-moving water containing smaller substrate and a greater
proportion of fine sediments than adults. CDs are benthic invertivores (McCormick et al. 2001)
and their main prey items are benthic macroinvertebrates, such as mayflies and caddisflies.
CDs have a relatively short life cycle, reaching sexual maturity by age 2 and often dying during
their third year (Jenkins and Burkhead 1994). Recent work by McBaine and Hallerman (2020)
on the age structure of CD populations in VA found individuals up to age 5, with the majority of
individuals in the Stony Creek, VA population in age classes 2 and 3. Spawning occurs from late
spring to early summer, typically April 15 through June 30 in WV and VA. The CD is
considered a brood-hiding, benthic spawner, with gravid females depositing eggs in pebble and
gravel substrate among larger cobbles and boulders, where they are fertilized by attendant males.
Although females may lay multiple clutches, they have a relatively low number of ova per clutch
(Schoolcraft et al. 2002). Eggs incubate for 5 to 30 days depending on stream water temperature.
Ontogenetic shifts (changes in CD habitat requirements as individuals develop) and seasonal

habitat plasticity (adaptability of CDs to differences between habitats as seasons change) may
introduce complexity when identifying suitable habitat for some CD populations (Dunn and
49

Motion For Stay of MVP BiOp W - o Attachments

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USCA4 Appeal: 20-2159 Doc: 23-1 Filed: 11/02/2020 Pg: 1 of 27 Total Pages:(1 of 968)

IN THE UNITED STATES COURT OF APPEALS

APPALACHIAN VOICES; WILD VIRGINIA; WEST VIRGINIA RIVERS

PETITIONERS’ MOTION FOR STAY OF RESPONDENT

the Natural Gas Act. 15 U.S.C. §717r(d)(1). Respondents and

Respondent-Intervenor Mountain Valley Pipeline, LLC (“Mountain Valley”) have

been informed of this motion and intend to file responses in opposition.

Mountain Valley is in the process of constructing approximately 304 miles of

construction—including cutting a 125-foot-wide right-of-way through forests and

vacated several of MVP’s required federal authorizations. Pipeline construction

suffering precipitous population declines.

These species are in a precarious position. “Small [Roanoke] logperch

project-related sedimentation would harm populations that are critical to species

observed a marked increase in construction activity in watersheds that contain

Roanoke logperch habitat, and a corresponding increase in sediment in rivers and

the 2017 BiOp.

MVP’s subsequent requests to resume pipeline construction. Exs. C–F. Although

Land Management, and notwithstanding this Court’s temporary stay of the

authorized MVP to proceed with construction—in violation of a mandatory

condition in the FERC

Certificate requiring that MVP obtain all federal authorizations before

F.3d 260, 285 n.11 (4th Cir. 2018).

On October 27, 2020, Petitioners sent a letter to FWS requesting an

its implementing regulations provide for an administrative stay of a final

Earth-disturbing construction activity has commenced; in recent days, local

Whether to issue a stay pending review turns on “consideration of four

A. Petitioners are Likely to Succeed on the Merits

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

the law.” 5 U.S.C. §706(2)(A).

The Endangered Species Act (“ESA”) prohibits “take” of threatened and

endangered species. 16 U.S.C. §1538(a)(1)(B); 50 C.F.R. §17.31. This prohibition

extends to “[h]arm and harassment[,] includ[ing] the disruption of normal

behavioral patterns and indirect injury caused by habitat modification.” ​Sierra

if exceeded. ​Id​. at 269-70.

Here, FWS uses ​suspended sediment concentration (“SSC”) thresholds to

measure Roanoke logperch and candy darter “take” from project-related

sedimentation. Specifically, FWS “used the analytical framework in the Biological

Effects” to “assess the suspended sediment concentrations at which adverse effects

project-related SSC/turbidity levels exceed the thresholds described in the bull

“provid[ing] a reasoned explanation for th[is] change,” ​Encino Motorcars, LLC v.

sensitivity of RLP and CD to sedimentation impacts such that it “entirely fail[ed]

cumulatively.​ ” ​BiOp​, Appendix C at 29 (emphasis added). But for MVP, FWS

states that it expects adverse effects to RLP and CD “[w]hen sediment

concentrations exceed 40 mg/L over background for more than 3 hours

thresholds such that “the elevated concentrations must persist continuously to

Response Protocol” will be initiated—during a sedimentation event. ​See id.​ ,

prior determination​—which also reflects the best available science—​that

adverse effects will occur at elevated sediment concentrations even if exposure

quoting, in a footnote, the dictionary definitions of “cumulative,” “continuous,”

a rational explanation for weakening thresholds that were developed by FWS’s

duration,” and the dictionary defines “duration” as “continuance in time,” ​id​. at

Assessment 7 n.7 (May 1992)​4 ​(defining “exposure duration” as “a time interval of

or intermittently”​ ) (emphasis added).

statements, using “cumulatively” for the three- and seven-hour threshold

concentrations. ​See, e.g​., ​Biological Opinion on Index-Galena Road Relocation

Project 7​ 5–76 (Feb. 14, 2017); ​Biological Opinion on Telegraph Vegetation

Bank Stabilization and Chronic Environmental Deficiency Project 5​ 3 (Aug. 16,

Project 6​ 7 (June 7, 2010).​5

without reasoned explanation)​.

FWS’s alteration of the bull trout effects framework is particularly troubling

“particularly susceptible to siltation impacts due to [their] specialized feeding

strategy” (RLP) and “particularly sensitive to changes resulting from increased

behavioral patterns and indirect injury caused by habitat modification.” Sierra

if exceeded. Id. at 269-70.

Here, FWS uses suspended sediment concentration (“SSC”) thresholds to

“provid[ing] a reasoned explanation for th[is] change,” Encino Motorcars, LLC v.

cumulatively. ” BiOp, Appendix C at 29 (emphasis added). But for MVP, FWS

Response Protocol” will be initiated—during a sedimentation event. See id. ,

prior determination—which also reflects the best available science—that

duration,” and the dictionary defines “duration” as “continuance in time,” id. at

Assessment 7 n.7 (May 1992)4 (defining “exposure duration” as “a time interval of

or intermittently” ) (emphasis added).

concentrations. See, e.g., Biological Opinion on Index-Galena Road Relocation

Project 7 5–76 (Feb. 14, 2017); Biological Opinion on Telegraph Vegetation

Bank Stabilization and Chronic Environmental Deficiency Project 5 3 (Aug. 16,

Project 6 7 (June 7, 2010).5

without reasoned explanation).

benthic species such as darters.”).7

measurable increases in suspended sediment will be “short-term and episodic,” id.

period. See Ex. M at 8-64 (“[I]ntroduced sediment, and any associated

sheltering, feeding, or breeding habitats.”); see also Pac. Coast Fed’n of

Population of Bull Trout (Salvelinus confluentus) 4 (2015)8 (citation omitted).

advantageous on an intermittent basis,” id. at 5, whereas CD are less mobile and

is arbitrary and capricious. Sierra Club, 899 F.3d at 293.

travel corridors as a result of tree clearing.” Ex. O at Appendix B, Table 7. These

essential to minimize impacts to reproductive potential for surviving Ibats.” Id. at

In Defenders of Wildlife, this Court held that FWS’s failure to explain an

th[is] complete change in position….” Id. at 362.

face.” Defenders, 931 F.3d at 362. It did neither.

together with cumulative effects, is likely to jeopardize the continued existence of

consultation.” Id. §402.02. See E

Intake Structure Modifications 7 (May 21, 2014) (“Urbanization, increased

x. Q at 32–36. The BiOp relies on Mountain Valley’s recent Supplement to

Virginia and Virginia.” Id. a t 142. In the BiOp, FWS considers

status,” or “there are no anticipated impacts on listed species.” Id.

x. M at 9-1; Ex. T (FERC, Environmental Compliance