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Environmentalists sue federal agency to try to stop NC 540

Breeding endangered mussels part of I-540 plan

The endangered dwarf wedge, found in small numbers in the Swift Creek watershed south of Garner, is one of two mussels that have cast a large shadow over the $2.2 billion final leg of the 540 loop around Raleigh.
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The endangered dwarf wedge, found in small numbers in the Swift Creek watershed south of Garner, is one of two mussels that have cast a large shadow over the $2.2 billion final leg of the 540 loop around Raleigh.

Three environmental groups filed a lawsuit Wednesday against a federal agency they say should have blocked the planned extension of the N.C. 540 highway across southern Wake County.

The lawsuit claims the U.S. Fish and Wildlife Service broke the law when it concluded that the six-lane Triangle Expressway from Holly Springs to Knightdale would not threaten the existence of two endangered species of mussels that live in a creek the road would cross. In April, the agency issued an opinion that concluded building the highway would have little effect on the dwarf wedgemussel and yellow lance mussel, as long as NCDOT and its contractors take care not to harm Swift Creek during construction.

Kym Hunter, an attorney with the Southern Environmental Law Center, said the Trump administration is ignoring science, facts and the law to push the project forward.

"The Biological Opinion issued by Trump's Fish and Wildlife Service violates federal law at every step," Hunter said in a statement. "The permit fails to adequately study the impact of the proposed $2.2 billion toll highway on endangered wildlife and its habitat and fails to set in place protective measures to ensure its continued survival."

Both species of mussels are on the federal list of endangered species.

The suit, filed in federal court on behalf of Sound Rivers and the Center for Biological Diversity, asks a judge to rescind the Fish and Wildlife Service opinion, which would essentially prevent the 540 project from moving forward. The Federal Highway Administration needs a valid opinion from the agency before it can approve the highway and provide federal funding.

The 28.4-mile extension of N.C. 540 would complete the outer loop around Raleigh that has been in the works since the early 1990s. The project has the support of local governments in Wake County and local chambers of commerce; the Regional Transportation Alliance, a group affiliated with the Greater Raleigh Chamber of Commerce, says finishing the highway should be the region's top transportation priority.

The N.C. Department of Transportation consulted the Fish and Wildlife Service on ways it could minimize the highway’s impact on the mussels. These include steps to prevent sediment from washing into the creek during construction and to eliminate runoff from the highway going directly into the water.

NCDOT also pledged $5 million to equip and operate a laboratory to breed and raise mussels to be introduced into Swift Creek and elsewhere in the region. The lab would be at Historic Yates Mill County Park and run by scientists at N.C. State University.

The Fish and Wildlife Service concluded that the mussel hatchery "fulfills an urgent need in the conservation and recovery" of dwarf wedgemussels in the Swift Creek watershed. At the same time, the agency noted that more homes and businesses will be built in southern Wake County regardless of whether the highway comes through, and that the impact of additional development created by the road would likely not be "discernible or measurable."

The lawsuit filed Wednesday says almost every aspect of the Fish and Wildlife Service's analysis falls short.

It says there's no plans for reintroducing mussels from the hatchery into the wild and no guarantee that the scheme will off-set the damage done by the highway or the development it spawns. The suit also notes that the agency essentially threw up its hands on the question of how many mussels might be inadvertently killed as a result of the project, saying repeatedly in its opinion that the effects would be "difficult to determine."

"The official Biological Opinion published by the USFWS allows NCDOT to destroy every single threatened or endangered mussel present in over 50 miles of habitat," the suit says. "The document does not attempt to determine how many mussels will in fact be destroyed. The document provides for no monitoring or reporting requirements. The document includes no trigger or safeguard to revisit the analysis."

The Southern Environmental Law Center is also pressing the federal government to determine the impact of the Atlantic Coast Pipeline on yellow lance mussels in North Carolina. The planned pipeline would carry natural gas from West Virginia through Virginia and along the Interstate 95 corridor in North Carolina to Robeson County.

It's not clear yet what effect the lawsuit will have on the timing of the project. NCDOT and the N.C. Turnpike Authority, which would operate the highway, expect that this summer the Federal Highway Administration will approve the Final Environmental Impact Statement, a report that spells out the possible effects of the highway on the natural and human environment. That would put the state on schedule to begin construction next year.

A spokesman for the Fish and Wildlife Service said it had not seen the lawsuit yet and referred questions to the U.S. Department of Justice, which declined to comment.

Meanwhile, a spokeswoman for NCDOT noted that the state is not a party to the lawsuit and issued a statement that said: "NCDOT and the N.C. Turnpike Authority are continuing to work toward delivering the Complete 540 project as requested by the local communities, while balancing the protection and conservation of our environment and natural resources."

Richard Stradling: 919-829-4739, @RStradling
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