US Fish and Wildlife Service Pursues Implementation of the Endangered Species Act On Basis of Threat of Energy Resource Development


On March 29, the U.S. Fish and Wildlife Service (USFWS) released for public comment its draft economic analysis of the July 26 proposal to list the diamond darter as endangered and to designate critical habitat. The summary of the justification for the initial July 26, 2012 release reads as follows:

"Diamond darter is endangered by water quality degradation; habitat loss; inadequate existing regulatory mechanisms; a small population size that makes the species vulnerable to the effects of the spread of an invasive alga (Didymosphenia geminate); loss of genetic fitness; and catastrophic events, such as oil and other toxic spills."

A review of the comments by West Virginia Department of Environmental Protection (WVDEP) provides rebuttal to USFWS claims: The WVDEP reports that the demise of the Diamond Darter is more particularly related to the historical impoundment of streams, not industrial activities. WVDEP also comments the current regulatory programs are protective of water quality and aquatic life.

It is noteworthy that the Elk River in West Virginia is designated as a high quality water. The West Virginia Department of Natural Resources (WVDNR) reports that sampling for the Diamond Darter is difficult because it buries itself in the sand, raising significant question about the population figures in this proposal. The WVDNR also comments that there would be little change to the regulatory program for protection of habitat because the existing program is very protective of this high quality stream.

It is also worthy of note that in spite of there being no ability to collect any Diamond Darters in Kentucky, there is a proposal to list for a portion of the Green River. The USFWS proposal references a study that asserts it is likely the Diamond Darter was never common to Kentucky.

To add to confusion on USFWS data, historical records place the species in Ohio and Tennessee. Neither of these states are targeted for this rulemaking.

The urgency for this listing is not actual water quality concerns, or stressed species, but instead the urgency is the potential for increased activities of extractive natural resource industries. USFWS asserts the threat of “spills” to the Elk River are of concern. Upon review of the actual experiences of the Elk River, WVDEP suggests the real threat to this species, as evidenced by history, has been impoundment of the flowing rivers. There has been no catastrophic spill to the Elk River of oil or other “toxics”, nor is it impounded.

This federal action has the suspect substance of yet another initiative to halt the domestic development of our energy resources. USFWS provides the comment that it does not anticipate the protected species status nor the critical habitat designation to impact coal mining, oil extraction, or drilling activities taking place in the study area.

What these statements do not address is the adverse outcome of increased regulatory actions that will impact the construction of stream crossings. At a point in time where the energy industry is working to provide access to downstream users of natural gas, increased regulatory burdens designed to protect a species that is not well understood creates an adverse outcome with little understanding as to the benefits, that limits energy marketing, production and consumption in West Virginia, particularly Kanawha County - the location of significant historical downstream chemical industry infrastructure.

Failure by USFWS that quantifies the likely impacts to the regulated community, particularly relative to coal mining and oil and natural gas production and manufacturing industries, is arbitrary and capricious. The offering of circuitous rationale asserting that habitat is not the issue of impact on the economy, rather species listing is the point of reference for economic analysis, is an effort to avoid the economic question.

Stated in a more direct manner, designation for protection creates a presumption of the need for enhanced regulation. It is disingenuous to assert the presumption is not quantifiable and therefore there is no economic impact.

Finally, small businesses, some of which are representative of the extractive industries such as coal mining, timbering, and oil and gas development have been an important source of jobs and progress in the Elk River watershed for well over a century. Energy businesses stand to sustain difficulties in marketing its capabilities when encumbered by an ESA designation with such ill-defined bases.

Even the environmental community is convinced that this listing may be premature as evidenced by the fact the Nature Conservancy intends to conduct its own watershed assessment in 2013. The agency is urged by the regulated community to move cautiously in advancing any such listing or designation and therefore must develop a more thorough record before finalizing this proposal.

IPAA has partnered with the West Virginia regulated community in advancing substantive comments to these USFWS diamond darter proposals.

Kathy Beckett is an attorney in Jackson Kelly's Charleston office and is the leader of the firm's Environmental Practice Group.

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