Law Offices of
Rodenhausen Chale & Polidoro LLP

In New York we are guided by federal and state lists of threatened and endangered species. A new feature offered by the U.S. Fish & Wildlife Service is a state-by-state map of the threatened and endangered species of the United States. By clicking on New York, you will find stories on featured species along with links to the national program, laws and regulations, grants, programs for kids and other information.

The site lists 19 federally-listed threatened and endangered species in New York, including the well known Shortnose Sturgeon, Karner Blue Butterfly, Indiana Bat, Bog Turtle, Piping Plover and Canada Lynx. Each species is linked to a species profile, including photographs, population, location, federal register documents, action plans, conservation plans, recovery status, critical habitat and other resources.

The federal and state lists of threatened and endangered species play a significant role in regulatory permitting throughout the state. This Fish & Wildlife map is a particularly useful service for applicants, agencies and citizens involved in permit proceedings.

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

According to weather forecasts, crops in the southwestern Midwest will continue to bake as the region endures the most severe drought in decades. Corn and soybean crops have been especially hard hit, which will cause prices for food, including corn products, beef, chicken and dairy products, to temporarily spike.

As a result, farmers in the Hudson Valley region may experience an economic boom this year as their crops sell for record prices. This temporary economic benefit is in addition to the growing local food economy. A recent article in the New York Times states that “the movement toward local food is creating a vibrant new economic laboratory for American agriculture,” which in turn fosters "more stable, predictable and measurable [local farm sales]." PR Newswire reports that Jerry Cosgrove, Associate Director of the Local Economies Project and a local foods expert in the Hudson Valley, agrees with the New York Times article’s focus on “the fact that local food production is a great way to strengthen local economies.”In fact, the local food industry banked in at $4.8 billion back in 2008, a number that is sure to keep growing despite the poor economic climate.

Economics aside, the drought reaffirms the need to support local agriculture to assure the continued availability of local food sources. Local farmer's markets provide access to corn and other crops that may not be readily available in other parts of the country.

A quick review of available zoning laws reveals that nearly every community in Dutchess County allows agriculture as a permitted use. However, communities can do more to encourage the continued growth of agriculture through zoning. For example, the Town of Red Hook has recently created the “Agricultural Business District” to support farming operations and related industries while discouraging residential development projects which often fragment important farmlands and result in conflicts between agricultural and residential uses. Many uses that support agriculture, such as wineries, distilleries, cold storage facilities, farm equipment repair and agritourism uses are permitted and subject to a streamlined review process.

Other methods that communities can use to support agriculture include purchasing development rights, requiring new residential devlopment to provide a buffer around existing farms, permitting roadside stands in every district, and using an average density, rather than a minimum lot size, which allows for greater protection of open space. More information on supporting farming with zoning can be found on the American Farmland Trust website.

Only July 27, the EPA announced in a Federal Register notice, that it is inviting public comment on the possible cancellation of the registration of clothianidin, the pesticide associated with honey bee colony collapse. We reported previously that on July 19 the EPA denied a petition filed by beekeepers and honey producers, among others, asking for the emergency suspension of the registration of clothianidin. EPA is now accepting comments on the agency's denial of emergency suspension as well as on the petition for permanent cancellation of the registration.

Interested persons may submit comments to EPA by referencing docket identification number EPA-HQ-OPP-2012-0344; FRL-9355-1. Comments may be submitted electronically by going to http://www.regulations.gov and following the instructions. Further information on how to submit comments is set forth in the Federal Register notice cited above.