Jackson Kelly PLLC

Coal Update

Fish and Wildlife Service Puts Two Crayfish on Threatened and Endangered Species List. Action Will Affect Projects in the Guyandotte Rivershed of West Virginia and the Big Sandy Watershed of Virginia, Kentucky and West Virginia.

April 20, 2016

By: Robert G. McLusky

By Federal Register notice of April 7, 2016, the U.S. Fish & Wildlife Service (“USF&WS” or “Service”) determined that the Big Sandy crayfish is threatened and the Guyandotte River crayfish is endangered.  The USF&WS originally proposed the listings on April 7, 2015 (80 FR 18710).  See also Fish and Wildlife Service Lists Snuffbox and Rayed Bean Mussels to Endangered Species List; Faces Lawsuit Seeking to Add Big Sandy Crayfish.” After the proposed listing, the USF&WS funded additional surveys, which were made available to the public on December 15, 2015 (80 FR 77598). 

In its listing decision, the USF&WS determined that the Guyandotte River crayfish is a separate species from the Big Sandy crayfish, a point of contention  by the extractive industries.  It rejected comments that there was insufficient evidence with which to identify the original range of the two species or to conclude that modern mining and timbering were not contributing to further reductions in range and population.  Instead, the Service determined that the primary threat of range-wide habitat loss and degradation is land-disturbing activities that increase erosion and sedimentation.

Below are historic and current survey results for both the Big Sandy and Guyandotte crayfish that appear in the new Federal Register document:

  BlogA

BlogB

Existing Populations and Historic Range:

The current survey results for the Big Sandy crayfish show greater range and numbers than historic surveys, a fact industry relied on to suggest that current activities had no limiting effect on crayfish populations.  The USF&WS rejected this conclusion, claiming that the new numbers were based on a more extensive sampling program than had occurred in the past.  Below is a depiction from a news release by the USF&WS of the historic and existing ranges of both species.

  BlogC

As noted in the depiction above, the sole existing population of the Guyandotte crayfish is in Pinnacle Creek, Wyoming County, West Virginia.  Interestingly, although the sole remaining populations of the Guyandotte crayfish have been found in Pinnacle Creek, the Service acknowledges that Pinnacle Creek experienced the greatest loss of forest cover in the upper Guyandotte watershed since 1973.  81 FR at 20458.  Regardless of the locations of current populations, however, this listing will present obstacles to any project with a federal nexus within the historic range of the two crayfish.  The Service will act to protect habitat not only in the immediate vicinity of the existing populations (thick black lines in the figure above), but in its historic range as well (shaded pink and green areas). 

Preferred Habitat:

In response to comments, the USF&WS acknowledged that its earlier statement—that the crayfish preferred “headwater” streams—was misconstrued.  The crayfish do not prefer small, sometimes intermittent headwater areas frequently occupied by surface mines, but rather fast-flowing, medium-sized streams and rivers with an abundance of slab boulders on unembedded bottom substrate.  81 FR at 20458 & 20459 (suitable habitat for both species is generally described as clean, third-order or larger streams (4 to 20 meters), fast-flowing, permanent streams and rivers with an abundance large unembedded slab boulders on a sand, cobble or bedrock stream bottom). 

Primary Threat(s):

Both species appear to be intolerant of excessive sedimentation and stream bottom embeddedness.  USF&WS determined in its listing document that the primary threats to the crayfish are coal mining, forestry, on- and off-road transportation, and oil and gas development.  The USF&WS concluded that both past and ongoing effects of coal mining are increased erosion and sedimentation, changes in flow, and stream bottom embeddedness.  While it agrees that passage of SMCRA and the Clean Water Act have reduced these impacts, it concludes that “State water quality reports, published scientific articles, and expert opinion indicate that the aquatic habitat required by [the] crayfishes continues to be degraded despite these regulatory mechanisms.”  81 FR at 20455. 

Likewise, the Service concluded that while modern forestry BMPs can reduce erosion and sediment levels, even sites using these techniques produce greater sediment than undisturbed areas.  With respect to oil and gas development, the Service notes that the construction of well pads and related infrastructure (e.g., gas pipelines, compressor stations, water pipelines, and impoundments and access roads) can increase erosion and sedimentation and that the release of drilling fluids or formation brines can contaminate local streams. 

The Service concluded that recreational off-road vehicle (“ORV”) use contributes to erosion and sedimentation generally.  It notes that most of the land in the two watersheds is privately owned and ORV use on private land is largely unregulated.  It found no comprehensive information on the extent of off-road ridership or the effect of local streams, but tried to use information concerning the Hatfield-McCoy Trail system in West Virginia as a surrogate.  It discussed the 700-mile trail system and noted that two trails—the Pinnacle Creek and Rockhouse trails—are located in the Upper Guyandotte basin and another, the Buffalo Mountain Trail, is in the Tug Fork basin.  The Service concluded that riders are known to operate their vehicles in the streambed at several locations along the Pinnacle Creek Trail (citing YouTube videos) and that these activities may increase erosion and sedimentation in Pinnacle Creek.

Likewise, the Service expressed concern about road construction along the planned Coalfields Expressway, the right-of-way which crosses Wyoming and McDowell Counties perpendicular to the King Coal Highway and continues into Buchanan, Dickenson and Wise Counties, Virginia.  Of particular concern to the Service are sections of the Coalfields Expressway planned through “perhaps the most robust Big Sandy crayfish populations in Dickenson County, Virginia.”  81 FR at 20469. 

The Service also went out of its way to suggest that water quality impacts from mining, oil and gas activity, and highway runoff could degrade water quality and adversely affect the crayfish.  It noted that while the primary threat to both crayfishes was erosion and sedimentation leading to stream substrate embeddedness, “other pollutants also degrade the streams and rivers within the ranges of these species and likely contributed to their decline and continued reduced distribution and abundance.”  The Service claims that the best available data indicate widespread water quality problems throughout both basins, noting that the pollutants commonly cited are metals (e.g., selenium) and pH impairments associated with coal mining and bacteria related to sewage discharges. 

Potential Effects of Conductivity:

The Service also contended that “high salinity, caused by increased concentrations of sulfate, calcium and other ions associated with coal mining runoff, is a widespread problem in Appalachian streams.”  It went on to state that “a study of crayfish distributions on the heavily mined upper Kanawha River basin in southern West Virginia did not determine a relationship between conductivity levels (a measure of salinity) and the presence or absence of the species studied, but sought to diminish this finding by stating that “the authors noted that stream conductivity levels can vary seasonally or with flow conditions, making assumptions regarding species’ presence or absence at the time of surveys difficult to correlate with prior ephemeral conductivity conditions.”  It also conceded that Service-funded studies in 2015 found no correlation between high conductivity levels and the absence of Big Sandy crayfish and a statistically weak correlation for the Guyandotte River crayfish.  However, it noted that 90 percent of the sites in the Big Sandy River basin and 86 percent in the Upper Guyandotte basin exceeded EPA’s freshwater aquatic life benchmark for conductivity.  81 FR at 20471.  It is unclear what point the Service was trying to make, except to suggest that virtually all of the streams have high conductivity and, therefore, it is difficult to know what the populations would have looked like in streams with low conductivities.  Continuing, the Service noted that “species presence/absence may be a poor measure for assessing the potential for high salinity levels to affect crayfish and that the studies described in its listing provide no data on potential sublethal effects or effects at different life stages. 

After reviewing these data and finding little correlation between high conductivity levels and the presence or absence of crayfish, the Service nonetheless concluded that “based on the best available data, we conclude that elevated conductivity levels, which are common throughout the Big Sandy and Upper Guyandotte River basins, may cause physiological stress in the Big Sandy and Guyandotte River crayfishes.”  81 FR at 20471.  In this regard, the Service strained to support EPA’s conclusions that high conductivity levels adversely affect benthromacroinvertebrates in central Appalachian streams affected by surface mining with little evidence to support the claim.

Future Work by USF&WS

The Service’s determination closed with statements that it would start work on recovery plans for the two crayfish and may propose a species-specific rule under Section 4(d) of the ESA detailing prohibitions necessary for conservation of the species as well as exceptions for those prohibitions.

This article was authored by Robert G. McLusky.

 

 

© 2021 Jackson Kelly PLLC. All Rights Reserved.