By John McFerrin
The West Virginia Highlands Conservancy, along with the Sierra Club, the Center for Biological Diversity, and Ohio Valley Environmental Coalition have sent a notice of intent to sue to the United States Fish and Wildlife Service, the U.S. Office of Surface Mining and the West Virginia Department of Environmental Protection informing those agencies of violations of the Endangered Species Act. The groups contend that the agencies are not doing enough to protect endangered species and that West Virginia is issuing mining permits that threaten endangered species.
Legal Background
Congress enacted the Endangered Species Act in 1973 to provide for the conservation of endangered and threatened fish, wildlife, plants and their natural habitats Under the Act, agencies are required to insure that any action “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined … to be critical.”
The “actions” which the agencies have to make sure do not threatened or endangered species include permitting of, in this case, coal mines. When the agencies make decisions on, in this case, coal mining permits, it must meet its obligations under the Endangered Species Act.
The notice of intent to sue is a common part of environmental statutes. It embodies the assumption that agencies or violators of statutes only need have their failure to comply pointed out to them and they will make things right. No litigation needed. In practice, the violators know what they are doing and either think it is legal or intend to go on doing it anyway. The notice of intent is just the lawyerly way of saying. “we’re serious about this and if you don’t change we will sue.”
The Species Involved
The species directly involved are the Big Sandy crayfish and the Guyandotte River crayfish. Historically the Big Sandy crayfish’s range included streams throughout the upper Big Sandy River basin, covering ten counties in Kentucky, Virginia and West Virginia. It is now restricted to six isolated subpopulations.
The historical range of the Guyandotte River crayfish included streams throughout the Upper Guyandotte River basin in Wyoming County and parts of Logan and Mingo counties in West Virginia. The best available information indicates that this species now exists in two streams in Wyoming County.
Like most threatened and endangered species, these two are in peril because of loss of habitat. In discussing the loss of habitat, the Fish and Wildlife Service noted erosion and sedimentation from mining, timber harvesting, unpaved roads, and off-road vehicles. It also cited general water quality problems such as chemical drainage from mine lands, sewage discharges, and runoff from roads.
While both the range and number of individuals of the Big Sandy crayfish has been reduced, it is listed as a species that is threatened with extinction. The Guyandotte crayfish’s range and the number of individuals is so restricted that it is listed as endangered.
Why We Care
With any litigation under the Endangered Species Act, someone always says, “It’s just some little bird/bug/fish that nobody would miss were it to disappear.” As a general matter, this is legally and factually irrelevant. The Act protects all species; it does not distinguish between popular and unpopular species. The natural world is a huge, complicated system. If it is to work properly, all the pieces must remain in place.
Crayfish are an extremely important component of aquatic ecosystems, in Appalachia and worldwide. They eat and get eaten. They eat smaller plants and animals, keeping streams and wetlands clean and harboring balanced populations. They sustain Hellbenders, raccoons, otters, Great-blue Herons, and, most importantly to fisher folk among us—smallmouth bass. Their creation of “chimneys” and tunnels, terrestrial and aquatic, is critical to survival of a very large number of invertebrates, as well as rodents, snakes, and frogs; so crayfish are a “keystone” species. They’re also sensitive to environmental impacts, so their numbers are a good indication of the health of a waterway.
Cindy Rank explains it this way, “The practice of avoiding, ignoring, minimizing, altering or otherwise overriding the rules of the game — the laws and regulations meant to protect waters of West Virginia — has for years led to the ongoing demise of our most valuable headwater streams and harming the people who rely on those waters for personal use and recreation. Protecting tiny critters like the Guyandotte and Big Sandy crayfish may seem insignificant or silly to some, but what we do to the least of our fellow travelers we ultimately do to ourselves.”
WVHC and Crawdads: a little history
This is not our first involvement in crayfish protection. Then President Cindy Ellis mentioned some of this history in her column for the June, 2015, issue of The Highlands Voice:
But crawdads have suffered recently. Human activities, including mountaintop removal mining, have contributed to major silting and pollution problems in streams, which have reduced mudbug populations. West Liberty University professor Zachary Loughman notes, “Globally crayfish are considered one of the most endangered animal groups on the planet.”
This was recognized more than a decade ago. So environmental groups joined in an effort to petition the Fish and Wildlife Center to move to protect crawdads…and a long list of other creatures locked in a backlog of inaction. The West Virginia Highlands Conservancy was one of the signatories. That petition was then reinforced by a lawsuit to further prod protections and some crawdads are being awarded assistance following settlement of the suit.
Most recently, as an outcome of that settlement, two in-state crayfish are awaiting finalization for inclusion on the Federal List of Endangered and Threatened Wildlife. This will be the first time species are listed as a result of threats due to mountaintop removal coal mining. Our readers have long known and realized the harms due to MTR; a crawdad may lead the way to helping stop those harms. What hurts the crawdads hurts all of us downstream too, and this new listing may be a tool to block the dangers.
One species to be listed is the Big Sandy Crayfish, found in Virginia, Kentucky—and, in West Virginia, in McDowell and Mingo Counties. The other is the Guyandotte Crayfish, found, worldwide, only in Wyoming County, West Virginia.