Document Accession #: 20230404-5143 Filed Date: 04/04/2023

Ms. Kimberly D. Bose

April 4, 2023

2200 Energy Drive | Canonsburg, PA 15317

844-MVP-TALK | mail@mountainvalleypipeline.info
www.mountainvalleypipeline.info

April 4, 2023

Ms. Kimberly D. Bose, Secretary

Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, DC 20426

Re: Mountain Valley Pipeline, LLC

Docket No. CP16-10
Response to POWHR Coalition Petition to Reinitiate Section 7 Consultation

Dear Secretary Bose:

On March 30, 2023, less than 24-hours after the Commission found that their comments do not warrant
reinitiation of consultation, opponents of the Mountain Valley Pipeline Project (Project) have
continued their spam attack on the Endangered Species Act (ESA) Section 7 consultation process.
This time, the POWHR Coalition launched a petition to FERC to reinitiate Section 7 consultation just
one month after the U.S. Fish and Wildlife Service (FWS) completed its latest biological opinion
(2023 BO) for the Project. POWHR’s goal is obvious: to draw the administrative process and the
Project to a screeching halt by what amounts to a heckler’s veto. This gross abuse of process and
public resources cannot be countenanced. POWHR’s petition fails to muster so much as a plausible
basis for reinitiation. They do not even pretend to provide new information for the agencies to consider
and instead just demand that the Commission unilaterally depart from federal law without justification.
This petition provides no grounds for reinitiating Section 7 consultation and must be rejected for the
reasons explained herein.

First, POWHR’s demand for FERC to abandon the 2023 BO and reinitiate consultation hinges on the
fallacy that the Commission has not considered and rejected the Project opponents’ previous
submissions (which themselves were designed to derail the Section 7 process). As explained in its
letter to FWS,1 FERC already has weighed, measured, and found those materials unpersuasive.2
POWHR makes the baffling claim that “the 45-day window of decision available to [FWS] was not

1
Letter, Determination for the Mountain Valley Pipeline Project, Docket No. CP16-10-000, Accession No. 20230329-
3034 (Mar. 29, 2023) (“We conclude that the comments do not contain any new information that would change FERC’s
effects determinations . . ., which were included in our January 26, 2023 letter to FWS. We also conclude that the
information in the comments does not affect the findings or methodologies supporting the Biological Assessment.
Consequently, we conclude that reinitiation of consultation is not warranted.”); see also Mountain Valley Pipeline, LLC,
Response to March 10, 2023 Environmental Information Request, Docket No. CP16-10-000, Accession No. 20230324-
5234 (filed Mar. 24, 2023) (fully evaluating and rebutting each illicit submission).
2
Even POWHR acknowledges that FERC has reviewed the submissions and found no basis for reinitiation of consultation.
See POWHR, et al., Petition to Reinitiate, Docket No. CP16-10-000, Accession No. 20230330-5015 (filed Mar. 30, 2023)
(“Though we have viewed the March 29th, 2023 letter from [FERC to FWS], the comments and the requests of the
signatories remain the same.”).
Document Accession #: 20230404-5143 Filed Date: 04/04/2023

Ms. Kimberly D. Bose

April 4, 2023

utilized, adding to the public perception that the agency reached its decision in a rushed manner.”3
Contrary to POWHR’s claims, the 2023 BO was anything but rushed. Spanning far longer than the
135-days allotted by Congress under the ESA, the latest reinitiated consultation for the Project was
extended twice, adding 78 more days to the months-long process. And that is on top of the more than
500 days of Section 7 consultation that the Project previously had undergone.

Second, POWHR’s petition is bereft of any substance to consider that could remotely be construed to
trigger reconsultation on the Project. FWS’s Section 7 regulations make clear that consultation must
be reinitiated in only four narrow circumstances and none of these is present here.4 POWHR does not
claim that any of the required reinitiation triggers is met. Instead, apparently convinced that quantity
is somehow a substitute for quality, they boast about their petition having 10,703 signatories,
“including 1,014 personalized comments” on the Project and the 2023 BO. A brief scan of POWHR’s
petition provides relevant context:

 Of the 10,703 signatories, a scant 4.4% come from residents of Virginia and West Virginia and
the significant majority of even those signatories live nowhere near the Project.

 More signatories to the petition are from foreign countries than from Virginia and West
Virginia combined.

 The 1,014 “personalized comments” on which the Petition relies are little more than bumper-
sticker jingoism, much of it nonsensical and does not bear repeating here.

Third, POWHR refuses to accept that Section 7 of the ESA limits participation in the consultation
process to only three parties—FWS, FERC, and Mountain Valley. As Mountain Valley5 and the
courts6 have explained time and again, Congress did not create a role for public participation in Section
7 consultation.7 While the Project opponents clearly dislike that statutory limitation, their repeated
refusal to acknowledge the administrative process demonstrates why it is so important—an aggrieved
party should not be able to overturn a duly authorized legal process simply because they do not like
the outcome. The Commission should not legitimize their grievances by condoning this action.

3
POWHR’s reference to the 45-day period is curious as the original 45 day period expired on December 12, 2022, the date
the BO was originally scheduled to be issued.
4
50 C.F.R. § 402.16 (Reinitiation of consultation is required in the following four circumstances: (1) the amount or extent
of taking specified in the incidental take statement is exceeded; (2) new information reveals effects of the action that may
affect listed species or critical habitat in a manner or to an extent not previously considered; (3) the identified action is
subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in
the biological opinion or written concurrence; and (4) a new species is listed or critical habitat designated that may be
affected by the identified action).
5
See, e.g., Mountain Valley Pipeline, LLC, Response to March 10, 2023 Environmental Information Request, Docket No.
CP16-10-000, Accession No. 20230324-5234 (filed Mar. 24, 2023).
6
See, e.g., San Luis & Delta-Mendota Water Authority v. Salazar, 760 F. Supp. 2d 855, 957 (E.D. Cal. 2010) (“Neither
the ESA nor its implementing regulations require an opportunity for public comment or that FWS respond to any comments
received.”); Kandra v. United States, 45 F. Supp. 2d 1192, 1209 n. 8 (D. Or. 2001) (“as the government correctly pointed
out during oral argument, the ESA does not require public review or input during the consultation process”); Ctr. for
Biological Diversity v. Kempthorne, 2008 WL 659822, *7 (D. Ariz. Mar. 6, 2008) (“Biological opinions, unlike DPS
findings, are not subject to notice and comment rulemaking procedures pursuant to the ESA.”).
7
See 16 U.S.C. § 1536; 50 C.F.R. § 402.14.
Document Accession #: 20230404-5143 Filed Date: 04/04/2023

Ms. Kimberly D. Bose

April 4, 2023

Mountain Valley welcomes the participation of the public in a productive dialogue about the Project.
This has been demonstrated throughout multiple exhaustive public comment processes—several of
which have been extended numerous times with the support of Mountain Valley—and especially by
Mountain Valley’s repeated offers to meet with opposition parties to address their concerns. Those
offers have been summarily rejected by all opposition parties. Project opponents have had multiple
opportunities throughout the federal and state permitting processes to voice their objections. However,
these efforts to continually spam the regulatory process to serve their narrow membership agendas are
disingenuous and waste the time and resources of the reviewing agencies.8 These actions delay public
access to affordable, reliable domestic energy that would also help achieve state and national goals for
lowering carbon emissions. POWHR’s obstructionist tactics illustrate the clear need for permitting
reform to allow our nation to achieve its infrastructure, energy, and climate goals.

If you have any questions, please contact me at tnormane@equitransmidstream.com.

Respectfully submitted,
MOUNTAIN VALLEY PIPELINE, LLC
by and through its operator,
EQM Gathering Opco, LLC

By:
Todd Normane
Deputy General Counsel

8
As of this writing, the Commission Secretary’s office has posted seventeen separate batches of spam form letters that
were emailed directly to the Commission rather than submitted through the Commission’s e-filing procedures. The form
letters repeat the false claim that the FWS process was rushed and allege, without any support whatsoever, that the 2023
BO was inadequate.
Document Accession #: 20230404-5143 Filed Date: 04/04/2023

Document Content(s)
PUBLIC MVP Response to POWHR.pdf..........................................1