It seemed inevitable that with fracking occurring in more than half the states, eventually it would run into conflict with the Endangered Species Act. Last week, the Fish & Wildlife Service ("Service") proposed to list the Diamond Darter, an extremely rare fish once thought extinct but rediscovered in West Virginia in 1980. According to a release from the Center for Biological Diversity, the proposed listing resulted from the settlement last year of litigation brought by the Center to accelerate listing decisions on 757 species.

The Diamond Darter is not likely to be found in New York. According to the Center, the Diamond Darter was once found in Kentucky, Ohio, West Virginia, Indiana and Tennessee, but now survives only in the Elk River in West Virginia. In the last thirty years, only fifty individuals have been collected. The Southeastern Fishes Council listed the Diamond Darter as one of the "desperate dozen", one of the twelve most endangered fish in the southeast.

The Service is proposing to protect the fish's "critical habitat" in West Virginia and Kentucky, including 122 miles along the Elk River. This habitat lies over the Marcellus and Utica shale in a region already affected by mountaintop removal coal mining, oil and gas drilling and increased interest in fracking. However, at this time the Elk River is still considered a "high quality stream" by the West Virginia Department of Natural Resources, with over 100 species of fish and 30 species of mussels, including 5 federally listed mussel species.

The listing proposal notes that the Elk River watershed is one of the more densely drilled areas of the State, with over 5,800 oil or gas wells in the watershed, and in the lower section of the Elk River, which contains the Diamond Darter, over 2,320 active wells and 285 abandoned wells. The number of Marcellus Shale fracking wells in the Elk River watershed is relative low but expected to increase rapidly in the future.

The proposal notes many concerns with fracking:

"When compared to more traditional methods, Marcellus Shale wells usually require more land disturbance, and more water and chemicals for operations. In addition to the size and length of any required access, 36 roads, between . . . 2 and 5 ac are generally disturbed per well. Each well also requires about 500 to 800 truck trips to the site. Construction of these wells in close proximity to the Elk River and its tributaries could increase the amount of siltation in the area due to erosion from the disturbed area, road usage, and construction."

"During the drilling process, each well may utilize between 7 and 15 million liters (2 and 4 million ga) of water. This water is typically withdrawn from streams and waterbodies in close proximity to the location where the well is drilled. . . . .Increasing water withdrawals has been shown to be associated with a loss of native fish species that are dependent on flowing-water habitats. Darters were one group of species that were noted to be particularly vulnerable to this threat."

The Service also notes impoundment, spills and other threats, summarized as follows:

"These threats are ongoing, severe, and occur throughout the species’ entire range. We have no information indicating that these threats are likely to be appreciably reduced in the future, and in the case of gas development, we expect this threat to increase over the next several years as shale gas development continues to intensify."

The proposed listing is a textbook study of the myriad potential impacts of fracking on endangered species. The proposal is open for public comment for sixty days from the date of publication in the Federal Register, expected imminently.

Excessive water withdrawals can reduce the quality and quantity of habit