Court decision hasn’t halted pipeline construction

Thank you for being one of our most loyal readers. Please consider supporting community journalism by subscribing.


Developers of the Atlantic Coast Pipeline say a decision by the 4th U.S. Circuit Court of Appeals that vacated a permit by the U.S. Fish and Wildlife Service and demanded more information will have no impact in North Carolina.

After the court’s order, ACP developers asked the Federal Energy Regulatory Commission for permission to continue construction.

“On May 16, 2018, the Federal Energy Regulatory Commission requested that ACP file documentation that specifically identifies the habitat areas that will be avoided with respect to the species listed within the U.S. Fish and Wildlife Service’s Incidental Take Statement and confirm our commitment to avoid construction in these areas,” said Jen Kostyniuk, director of communications for Dominion Energy, primary backer of the project to install a 600-mile natural gas pipeline from West Virginia, through Virginia to North Carolina.

“We have filed our response, identifying by milepost the areas we are committing to avoid. Per FERC and USFWS, because this information contains the locations of sensitive species (that) are customarily treated as privileged and confidential, this information is not being released to the public,” Kostyniuk said.

“We will continue to move forward with construction as scheduled and fully comply as required with all permits and agency requirements,” Kostyniuk said.

Some 180 miles of the pipeline are in North Carolina, with about 12 miles running through the western portion of Wilson County.

According to a statement from Kostyniuk, “the court’s action only affects those areas of pipeline construction where endangered species or their habitats may be present. The Incidental Take Statement has no direct effect on the route or other required permits. It simply removes the shield that protects against an otherwise unlawful take, and for that reason, we will avoid any activities in any areas identified by USFWS that would be likely to adversely affect any of the listed species.”

The yellow lance mussel, which lives in the ACP project area, has been found in the Nottoway River in Virginia, in Swift Creek, Tar River, Fishing Creek and Little River along the pipeline’s path. Other potential affected species include rare bumblebees and bats that are protected under the Endangered Species Act.

“No argument or map from Dominion and Duke Energy can remove the liability of undertaking construction without a valid permit from the Fish and Wildlife Service,” said Southern Environmental Law Center senior attorney Greg Buppert. “This permit is a mandatory condition for three major federal permits held by ACP developers. If FERC looks the other way and grants this request to Dominion and Duke, it is rewriting its own permit on the fly.”

Kostyniuk said the developers’ next step will be “to coordinate with the USFWS, who we expect will revise the Incidental Take Statement to provide limits that are more specific for certain species and address the concerns raised by the court.”

“While we do not have a specific date when the revised Incidental Take Statement will be prepared, we note that ACP has conducted extensive survey work for all six species over the past four years and we believe there is a robust record on which to resolve this matter in an expedited manner,” Kostyniuk said.