By: Kevin M. McGuire and Robert G. McLusky
The U.S. Fish and Wildlife Service (“USF&WS”) has taken action on petitions to list both the Cumberland Arrow Darter and the Kentucky Arrow Darter as endangered or threatened species under the Endangered Species Act. It has declined to list the Cumberland Arrow Darter, but has proposed to list the Kentucky Arrow Darter and has proposed critical habitat to protect the species.
Cumberland Arrow Darter
The USF&WS announced first that it will not list the Cumberland Arrow Darter as endangered or threatened. The agency reviewed information supplied by both Kentucky and Tennessee. It found that the species’ most dramatic decline had occurred in the eastern portion of its range in the upper Cumberland River drainage, an area described as characterized by less public ownership and more extensive impacts from surface mining than populations in the western half of its range. While it concluded that the species has been extirpated in 43 of 128 streams, it nonetheless determined that “the species’ overall status is more secure than previously believed, and that stressors acting on the species … [do] not indicate the species is in danger of extinction (an endangered species) or likely to become endangered within the foreseeable future (a threatened species).” In aid of its finding, the Service found that the fish occupied more and larger streams than previously thought.
Kentucky Arrow Darter
The USF&WS did, however, propose to list the Kentucky Arrow Darter, a fish species from the Upper Kentucky River Basin in Kentucky, as a threatened species under the Endangered Species Act. Additionally, the Federal Register Notice proposes to designate critical habitat for the Kentucky Arrow Darter.
According to the notice, the Kentucky Arrow Darter typically inhabits pools or transitional areas between riffles and pools in moderate to high gradient smaller streams. Historically, the Darter occupied at least 74 streams in the upper Kentucky River Basin of eastern Kentucky and portions of 6 smaller watersheds (North Fork Kentucky River, Middle Fork Kentucky River, South Fork Kentucky River, Silver Creek, Sturgeon Creek, and Red River). Based on a survey conducted from 2007-2012, the Service concluded that Arrow Darters were observed at 36 of 69 historical streams and 53 of 103 historical sites. The Service determined that the Darter’s habitat and range have been destroyed, modified and curtailed due to a variety of human activities in the upper Kentucky River drainage. They include resource extraction (coal mining, logging and oil/gas well development), land development, agriculture and inadequate sewage.
The Service also discussed the fact that there is elevated stream conductivity downstream of surface mines in eastern Kentucky and West Virginia and that those increases in conductivity “have been shown to negatively impact biological communities, including losses of mayfly and caddisfly taxa.” Continuing, the Service cited reports suggesting that fish assemblages in eastern Kentucky and West Virginia streams downstream of valley fills support about half the number of species found at reference sites. It relied on one recent report by Hitt, et al. to conclude that taxonomic differences between reference and exposure (mined) assemblages were associated with conductivity and aqueous selenium concentrations, but did not seek to differentiate the impact of conductivity from selenium and did not suggest that selenium is present in any of the watersheds where the Arrow Darter is threatened in Kentucky.
The Service determined that existing regulatory mechanisms are inadequate to protect the Kentucky Arrow Darter even though it is afforded some protection under the Clean Water Act, SMCRA, and various state statutes. Nonetheless, the Service concluded that current laws do not adequately protect the Kentucky Arrow Darter and its habitats from non-point source pollution or point source pollution. It concludes that specific stressors to the species include inputs of dissolved solids and elevation of in-stream conductivity, sedimentation/siltation and inputs of nutrients and organic enrichment.
The ESA and case law require the Service to designate, to the maximum extent prudent and determinable, critical habitat for any threatened or endangered species. Critical habitat are the specific areas within the geographical range of the species at the time of listing that contain features essential to conserving the species and which may also require special management or protection. The Service may also designate areas essential for the conservation of the species though not occupied at the time of listing.
The Service’s proposal designates 38 units of critical habitat, comprising approximately 246 stream miles in Breathitt, Clay, Harlan, Jackson, Knott, Lee, Leslie, Owsley, Perry, and Wolfe Counties, Kentucky. The proposed critical habitat units include the stream channels of the creeks within the ordinary high water line. The Service did not include adjacent uplands in the proposed critical habitat designation. Critical habitat designations affect only federal agency actions or federally funded or permitted activities.
This article was authored by Robert G. McLusky and Kevin M. McGuire.