Proposal to List the Big Sandy Crayfish and Guyandotte River Crayfish as Endangered

Coal, oil and gas, timber, and multiple other activities within the Guyandotte and Big Sandy watersheds in West Virginia, Virginia and Kentucky will be subject to new restrictions if the United States Fish and Wildlife Service (USFWS) proceeds with its recent proposal to list two crayfish species as endangered under the federal Endangered Species Act. 

On April 7, 2015, the USFWS announced a 12-month finding on a petition to list the Big Sandy crayfish as endangered and to designate critical habitat. This proposed listing is one of hundreds the USFWS agreed to pursue based upon the petition of the Center for Biological Diversity (CBD), and was specifically the subject of a court settlement with CBD in 2013. Since the time of that settlement, the USFWS concluded that the Big Sandy crayfish was really two separate species, and has proposed to list them both—the Big Sandy crayfish and the Guyandotte crayfish–as endangered.

The proposed listing and designation of critical habitat is based primarily upon the USFWS’s conclusion that activities or conditions in the two river basins represent “the present or threatened destruction, modification, or curtailment of its habitat or range, and “other natural or manmade factors affecting its continued existence.”

Sedimentation in streams is noted as a primary factor in the stated decline of the Big Sandy and Guyandotte crayfish. Coal mining, timbering and timber roads, oil and gas well and pipeline development and oil and gas roads, and off-road vehicle use, such as the very popular Hatfield-McCoy trail system, are all activities focused on by the USFWS as causing sedimentation and water quality degradation detrimental to the crayfish. These industries or activities should anticipate new restrictions as a result of any listing of these crayfish as threatened or endangered.

The public comment period for this announcement of 12-month finding ended on June 8, 2015. Numerous trade organizations and businesses have commented in opposition to the proposed listing, including the National Mining Association, the West Virginia Coal Association, and the West Virginia Oil and Natural Gas Association. Likewise, the Sierra Club submitted thousands of form objections, as did the CBD.

Numerous technical objections have been raised by commenters, with many noting the lack of adequate data upon which to base either proposed listing and the failure of the USFWS to obtain peer review of its listing determination prior to seeking public comment. Concern was expressed that the proposed listing for the Guyandotte crayfish was based upon a species just publically identified in December 2014, only months prior to the USFWS’s April 2015 Federal Register notice. Commenters pointed out numerous inconsistencies and data gaps in the USFWS’s notice and pointed out the lack of consideration given to existing laws limiting discharges of sediment or other pollutants into waters.

Trade associations and individual companies have formally requested an extension of the public comment period, pointing out that these two species have been considered a single species for decades, and that numerous preserved specimens held by state agencies and others should be evaluated to the species level to more accurately evaluate the range and population of these crayfish prior to making a listing determination. The West Virginia Department of Environmental Protection submitted comments seeking additional time for comment in order to evaluate existing specimens in its possession, and ten Congressmen from multiple states signed a formal request for an extension of the public comment period.

If the USFWS proceeds with its proposed listing of the Big Sandy and Guyandotte crayfish, it will have one year from the date of that determination to designate critical.

Allyn Turner concentrates her practice in the areas of environmental law, environmental litigation, and environmental policy issues.
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