Fish & Wildlife List Diamond Darter As Endangered Species

The US Fish & Wildlife Service has decided to list the Diamond Darter, a fish that is only found in the Elk River, as endangered.  A news release from FWS is found here.  The following is an excellent summary of the facts surrounding the listing, from Jason Bostic of the WV Coal Assn.  

In the July 26, 2012 the F&WS proposed listing the diamond darter under the ESA.  Concurrent with its proposed classification as an endangered species, the F&WS proposed to designate 28 miles of the lower Elk River in West Virginia (from the Confluence of King Shoals Run near the Wallback Wildlife Management Area to near Knollwood Drive in Charleston) as “critical habitat” for the species.  This section of the Elk River contains the only known remaining populations of diamond darters in the country.  F&WS also proposed to classify 95 miles of the Green River in Kentucky as critical habitat since diamond darters historically inhabited the area, although none exist there today.  

F&WS has NOT made a decision regarding critical habitat designation in the notice that will be published tomorrow.  The decision regarding critical habitat will come later, as will any proposed protection measures.

In the July 2012 Federal Register notice announcing the proposed listing and critical habitat designation, F&WS identified several factors that may jeopardize the continued existence of the diamond darter, including water quality impacts associated with coal mining activities undertaken on tributaries to the Elk River.  F&WS claims that sedimentation, metals and increases in downstream conductivity threaten the existence of other sensitive fish species and therefore pose a threat to the diamond darter.  The agency’s conclusions regarding conductance and fish impacts is largely based on studies undertaken by the agency on the Kentucky Arrow Darter in the Cumberland River Basin.

Although mining activities generally do not directly exist within the 28-mile range of proposed critical habitat designation area, concerns related to the alternation of that critical habitat area could be applied to any proposed / current mining activity on any of the Elk River’s tributaries.  The terms of the ESA that require federal agencies to ensure that permitted activities will not jeopardize the continued existence of an endangered species and/or its habitat would apply directly to Clean Water Act (CWA) Section 404 permits issued by the U.S. Army Corps of Engineers and indirectly to the issuance of permits by the state under the Surface Mining Control & Reclamation Act, and potentially to state issued Clean Water Act Section 402 NPDES permits.