Last week, the U.S. Fish and Wildlife Service announced its proposal to list the Diamond Darter as endangered under the federal Endangered Species Act. The FWS also is considering land use restrictions for the tiny fish, proposing critical habitat designation in an area of West Virginia that has seen increased exploration and production activity during the Marcellus Shale gas boom. If the FWS proposal is finalized, federal agency actions such as issuance of Clean Water Act permits or Federal Highway Administration approvals would require conference or consultation if they may impact species or their habitat.

The FWS notes in its proposal that the entire range of the Diamond Darter is underlain by the Marcellus and Utica Shale formations and that the increased pace of drilling gas wells could impact the species through the threatened destruction, modification, or curtailment of its habitat. FWS states that the lower section of the Elk River, which currently contains the Diamond Darter, has the highest concentration of both active and total wells in the watershed, with over 2,320 active wells and 285 abandoned wells.

Under the federal Endangered Species Act, a species may be determined to be endangered or threatened based on any of five factors:

  1. the present or threatened destruction, modification, or curtailment of its habitat or range;
  2. overutilization for commercial, recreational, scientific, or educational purposes;
  3. disease or predation;
  4. the inadequacy of existing regulations; or
  5. other natural or manmade factors affecting its continued existence.

The FWS proposal cites several impacts associated with exploration and production in the Marcellus, including: increased land disturbance, impacts from transportation, larger water withdrawals, and the use of chemicals in hydraulic fracturing. According to the FWS’s proposal,

“Threats include discharges from activities such as coal mining and oil and gas development, sedimentation from a variety of sources, pollutants originating from inadequate wastewater treatment, habitat changes caused by impoundments, and direct habitat disturbance. These threats are ongoing, severe, and occur throughout the species’ entire range. We have no information indicating that these threats are likely to be appreciably reduced in the future, and in the case of gas development, we expect this threat to increase over the next several years as shale gas development continues to intensify.”

The Act also requires that FWS designate critical habitat concurrently with listing determinations, if designation is prudent and determinable. In the case of the Diamond Darter, FWS also is proposing to designate critical habitat, including approximately 197.1 river kilometers (122.5 miles). The proposed critical habitat is located in Kanawha and Clay Counties, West Virginia, and Edmonson, Hart, and Green Counties, Kentucky.

For the current proposal, FWS will consider comments received on or before September 24, 2012.