In a potential new snag for the Triangle Expressway, the Federal Highway Administration wants to review the potential impacts of the planned highway on rare mussels in light of a court decision involving the Atlantic Coast Pipeline.
The review would also allow the U.S. Fish and Wildlife Service to consider the highway’s effects on the Atlantic pigtoe, a type of rare freshwater mussel that has been identified as a potentially “threatened species” since the highway agency approved the project last spring.
The Fish and Wildlife Service had previously determined that the $2.2 billion highway, also known as N.C. 540, would not threaten the existence of two other mussel species living in streams of southern Wake County that are in the highway’s path — the dwarf wedgemussel and the yellow lance mussel. The Federal Highway Administration cited the agency’s opinion last June when it approved the route of the six-lane toll road from Holly Springs to Knightdale.
But a 4th U.S. Circuit Court of Appeals decision in the pipeline case prompted the federal agencies to take another look at the Fish and Wildlife Service’s conclusions about 540. The proposed 600-mile pipeline would run from West Virginia across Virginia to Eastern North Carolina, delivering natural gas from fracking operations in Pennsylvania and West Virginia.
The appeals court ruled last year that Fish and Wildlife failed to adequately consider the pipeline’s effects on endangered species, in violation of the Endangered Species Act, and the Federal Highway Administration wants to make sure that wasn’t the case with 540, according to documents filed in federal court Monday.
The agency asked a federal judge for a “voluntary remand” in the legal challenges to the 540 project, to give it time to reconsider the highway’s potential impact on the mussels, including for the first time the Atlantic pigtoe. Four environmental groups — the Southern Environmental Law Center, Sound Rivers, Clean Air Carolina and the Center for Biological Diversity — have raised several objections to the project, including that Fish and Wildlife failed to fully consider its impact on the endangered mussels in creeks the road would cross.
The review could have several possible outcomes, according to a memo filed by the government’s attorneys. It may satisfy the environmental groups, so that the challenges in their lawsuit “may be rendered moot or otherwise resolved.” Or it may prompt the Federal Highway Administration to reconsider its decision to approve NCDOT’s route for the highway last year.
In a separate document, Edward Parker, an assistant division administrator for the federal highway agency, said it would take until August for Fish and Wildlife to deliver its new opinion about the mussels. Parker wasn’t sure how long it would take the highway agency to decide what to do with it.
The Federal Highway Administration referred questions about the legal filings to the U.S. Justice Department, which declined to comment.
‘We are moving forward’
The federal request for a pause comes as the state is pressing ahead with the project. The N.C. Department of Transportation has awarded two contracts, worth $563 million, for the first two legs of the project, from just east of Holly Springs Road to I-40 near the Johnston County line, and says it hopes to begin construction late this year and finish in 2023.
Biologists from NCDOT and elsewhere are doing field work to assess the status of the three mussel species and revise the assessments of how the road will affect them. In the meantime, the state is acquiring property and doing design and utility work in anticipation of starting construction and doesn’t expect the federal review to cause any delays, said spokeswoman Carly Olexik.
“We do not anticipate this additional work to impact the project schedule,” Olexik said. “We are moving forward based on current approvals.”
Because NCDOT is moving ahead with the project, the three environmental groups expect to object to the federal government’s request for more time to review the endangered species issue, said Kym Hunter, an attorney with the Southern Environmental Law Center.
“We have to press forward with litigation over anything that is final — particularly as they still purport to be moving ahead with construction this fall,” Hunter wrote in an email. “We filed this case last summer, and we need to get it briefed and in front of [a judge] before the state wastes money starting construction.”
Hunter said the groups also will urge the U.S. Army Corps of Engineers not to issue a water quality permit for the project until the endangered species questions are settled.
Planning for the completion of N.C. 540 across southern Wake County began in the early 1990s. The project has the support of local governments in Wake and Johnston counties and local chambers of commerce, as well as the Regional Transportation Alliance, a group affiliated with the Greater Raleigh Chamber of Commerce, and the Capital Area Metropolitan Planning Organization, which plans transportation in the region.
Opponents say the road is too expensive and would unnecessarily fuel sprawl in southern Wake, but the endangered mussels have been a big focus of the legal challenge. The dwarf wedgemussel was the reason NCDOT considered an alternative path for the Triangle Expressway known as the Red Route, which would have largely avoided the mussels while plowing through subdivisions, businesses and churches in Garner.
Instead, NCDOT consulted the Fish and Wildlife Service on ways it could minimize the highway’s impact on the mussels, including 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.