The diamond darter, a small river fish related to the infamous snail darter that put the Tennessee Valley Authority’s operations in jeopardy in the late 1970s, has been proposed for listing as endangered under the Endangered Species Act (“ESA”).  The notice, issued on July 26 by the U.S. Fish and Wildlife Service (“FWS”), also would designate some 122 river miles in Kanawha and Clay Counties, West Virginia, and Edmonson, Hart, and Green Counties, Kentucky (where these fish were once known to have existed) as “critical habitat.” 

The proposed listing is not surprising.  Until about 1980, the diamond darter (Crystallaria cincotta) was thought to be extinct.  The species comprises a single population found only in the Elk River in West Virginia.  However, it is yet another in a growing string of listings that have been partially predicated on potential threats ostensibly posed by fracking activities in the adjacent region. 

FWS calls the Elk River watershed “one of the more densely drilled areas of the State,” with the highest concentration of wells where the fish occur.  As of January 2011, the Elk River watershed was home to more than 5,800 oil and gas wells, of which about 2,320 are in the lower portion of the river where the darter is found.  Most wells currently produce oil, but the diamond darter’s habitat overlies the Marcellus and Utica Shale formations where the pace of fracking is picking up.  West Virginia reported that Kanawha County had 15 gas wells in March 2011.  “As of January 2012, there were 188 completed Marcellus Shale gas wells … and an additional 27 wells that had been permitted.”  Assuming the 2011 survey was correct, that is an astonishing growth in fracking activity within less than a year.

In terms of threats, FWS says –

Although limited data are available to quantify potential impacts, development of oil and gas resources can increase sedimentation rates in the stream and degrade habitat and water quality in a manner similar to that described for coal mining.  Oil and gas wells can specifically cause elevated chloride levels through discharge of brine and runoff from materials used at the site, and the erosion of roads associated with these wells can contribute large amounts of sediment to the streams.

The Service also raises concerns about river water withdrawals for hydrofracking, as well as the potential for spills of waste water from overflow, ruptured pipes, and containment pond breaches.  If the diamond darter is, in fact, listed as endangered, these will all be ripe areas for potential mitigation and regulation of drilling and recovery activities in the designated critical habitat zone should.  Comments are due by September 24, 2012.

Latest of a Growing Number of ESA Listings in Part Due to Fracking

The lower Elk River is but a sliver of the booing shale gas regions.  Throughout the Marcellus, Bakken, Utica, and elsewhere, however, similar ESA issues are on the rise.

In February, two mussel species (rayed bean and snuffbox) found in river systems overlying the Marcellus and Utica formations were listed as endangered, based in part on perceived threats from fracking.  Another pair of mussels (spectaclecase and sheepnose) found from Pennsylvania to Minnesota and southward to Alabama and Tennessee were likewise listed as endangered just one month later.  In both cases, as with the diamond darter, fracking activity was not the primary culprit in the species’ decline, but was identified as an activity likely having adverse impacts.  Unlike the diamond darter situation, however, no critical habitat has been identified for any of these species, although the designation process is underway.

Thus, in contrast to the west where the O&G industry deals with terrestrial species like the sage grouse, lesser prairie chicken, and dunes sagebrush lizard, riverine species are having the most impact eastward.  The ESA is thus likely to add to the industry’s water woes – both in terms of supply for fracturing operations and waste disposal.  There are great number of such species in the pipeline for FWS listing determinations. 

Last year, WildEarth Guardians and the Center for Biological Diversity entered into a settlement agreement with FWS requiring listing decisions for more than 250 candidate species between now and 2016.  Many of these are freshwater fish and bivalves widely found through the eastern, southeastern, and mid-western U.S.  The diamond darter and the four mussel species mentioned here were on that list.

The ESA and Likely Impacts

In the snail darter case, TVA v. Hill, 437 U.S. 153 (1978), the Supreme Court held that Congress enacted the ESA to “halt and reverse the trend toward species’ extinction, whatever the cost.”  In practice, the law has not been quite as rigid or onerous as that formulation suggests.  That said, economic considerations play no role in determining whether a species qualifies as threatened or endangered, but do play a role in critical habitat determinations. 

The ESA prohibits “takes” – death, injury, or even harassment – of listed species.  Unless authorized under an incidental take permit, takes are punishable through criminal and civil penalties.  Notably, the ESA contains a “private attorney general” provision that allows private citizens and organizations to bring civil suits to enjoin any activity alleged to be in violation of the law.  In general, incidental take permits will only issue after thorough federal review of the activity and, often, imposition of mitigation measures and various terms and conditions that can range from minimal to prohibitive.

In terms of fracking, companies solely subject to state regulation and working on private lands may have to coordinate with state regulators and resource agencies to develop habitat conservation plans in order to qualify for an incidental take permit.  These plans are negotiated directly with FWS.  Those with some type of federal permit, such as for UIC wells, or one of the proposed new permitting regimes for fluids containing diesel or for wells on federal or Indian lands, the consultation process is generally between the permitting or resource management agency and FWS.

The best approach, one that many are already undertaking, is to work with state and federal officials to develop and adopt best management practices and voluntary mitigation plan for species both listed and for those on the candidate species list.  These may include set-backs from river banks, directional drilling, swales and other measures to prevent erosion and siltation, systems to prevent and contain discharges, and minimizing impacts of water withdrawals.  As with the western species mentioned above, proactive voluntary measures developed in conjunction with states can help forestall listings. 

Perhaps even more importantly, when, as in the case of the diamond darter, FWS is considering designating critical habitat, it pays to participate in the process.  The agency has the duty to avoid the “destruction or adverse modification” of critical habitat, a very high standard to meet.  Thus it is critical to realistically demonstrate economic burdens such designations would have, along with any and all mitigation measures undertaken.  Critical habitat designations are not mandatory under the ESA.