Will a rare mussel delay construction of the Atlantic Coast Pipeline?

The yellow lance mussel was recently declared "threatened" under the Endangered Species Act. Environmental groups say the mussel could be threatened by the Atlantic Coast Pipeline.
The yellow lance mussel was recently declared "threatened" under the Endangered Species Act. Environmental groups say the mussel could be threatened by the Atlantic Coast Pipeline. U.S. Fish & Wildlife Service

The yellow lance mussel is North Carolina's newest species of wildlife protected under the federal Endangered Species Act.

And the 3-inch long fresh-water mussel, which was declared environmentally "threatened" just this month, could be the focus of the next legal showdown over the planned Atlantic Coast Pipeline.

Officials with the Atlantic Coast Pipeline have until Monday to tell federal authorities which sections along the project's 600-mile route pose potential risks for a rare bumblebee, several bat species and other wildlife that have been designated as threatened and endangered under the federal law. Those sections will be off-limits to any pipeline construction until the U.S. Fish & Wildlife Service sets limits on the number of rare wildlife species that can be accidentally harmed or killed by heavy machinery, trenching, blasting or drilling.

But the developers of the pipeline, a consortium led by Charlotte's Duke Energy and Richmond's Dominion Energy, say they don't plan to stop work on any section in North Carolina, where the pipeline will run through eight rural counties and across more than 300 bodies of water, some near documented habitats of the yellow lance mussel. They are awaiting a go-ahead from the Federal Energy Regulatory Commission to start grading and digging along sections of the pipeline's 186-mile path.

The Atlantic Coast Pipeline surveyed the pipeline route in 2015, 2016 and 2017, and says it didn't find any yellow lance mussels in the streams that the pipeline will cross. Based on those company surveys, the Fish & Wildlife Service has assured the pipeline it won't need a special permit to accidentally harm the yellow lance mussel because they are not likely to be found near the pipeline's pathway.

"Through our project planning, we purposefully avoided areas of endangered species," said Dominion spokeswoman Jen Kostyniuk. "This means that a [permit] is not required."

The mussels that almost rerouted 540

The yellow lance mussel has been listed as "endangered" by North Carolina authorities since 2001, and the fuss over the mussel nearly caused the rerouting of the planned completion of the 540 outer loop in the Triangle. Only last month did the Fish & Wildlife service say the planned extension won't threaten the mussel as long as construction crews prevent sediment and runoff from washing into the water where the mussels live.

As part of the 540 turnpike project, the N.C. Department of Transportation has pledged $5 million to establish a mussel hatchery to breed and release the mollusks into the wild in Eastern North Carolina.

The Fish & Wildlife Service federally designated the yellow lance mussel as "threatened" in April, effective May 3. The agency said the indigenous mussel, which lives on stream bottoms and is part of nature's water filtration cycle, has lost 57 percent of its natural habitat.

An early warning system

The yellow lance mussel was once so common in the United States that its golden shells were used for buttons and jewelry. Today it's viewed as the proverbial canary in the coal mine for signs of environmental degradation in the nation's waterways.

"If they start disappearing you know there's something wrong with that system somewhere," said Todd Ewing, supervisor of the aquatic diversity program for the N.C. Wildlife Resources Commission.

"They're filter feeders," Ewing said. "They live on the bottom and suck up water and filter the particles — algae, sediment and bacteria — and keep the water clean."

There are existing populations of yellow lance mussel near the I-95 corridor, as documented by the N.C. Wildlife Resources Commission. The commission provided a map to The News & Observer showing the mussels are still found in six streams near I-95 in Johnston and Nash Counties near where the pipeline will run.

The rare bats and other endangered species are potentially threatened by the pipeline only in Virginia and West Virginia, not here.

The Endangered Species Act says it's a misdemeanor to collect, move, disrupt or harm a species that is designated as endangered or threatened. Exemptions are allowed, within set limits, for major construction projects like the $6.5 billion Atlantic Coast Pipeline.

The Atlantic Coast Pipeline requested those limits for the bats and other species from the Fish & Wildlife Service, but on Tuesday the U.S. Court of Appeals in Richmond said the agency's limits were too vague, and asked the agency to state them more precisely. The court ruling was the result of a lawsuit brought by the Southern Environmental Law Center on behalf of three environmental groups, including the Sierra Club and Defenders of Wildlife.

The Southern Environmental Law Center now says the Atlantic Coast Pipeline must be assessed for risks posed to the yellow lance mussel before construction begins in North Carolina and elsewhere. On April 30, the SELC notified the Federal Energy Regulatory Commission that the pipeline will cross yellow lance habitat, including Swift Creek, Little River and possibly the Tar River.

"You can't do anything that affects the species unless you have a safe harbor," said SELC lawyer DJ Gerken.

Gerken said the environmental groups are awaiting a full written decision from the federal appellate court explaining Tuesday's ruling. The court opinion will help determine their next steps with regard to their ongoing fight against the pipeline and implications for the yellow lance mussel.

"They [the Fish & Wildlife Service] may have made the same errors with the yellow lance that they made with the other species in the decision that was overturned earlier this week," said Perrin de Jong, staff attorney with the Center for Biological Diversity, the Tucson, Ariz.-based group that in 2010 petitioned to have the yellow lance listed under the Endangered Species Act. "The issue may turn entirely on the court's analysis."

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