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Final Determination of the U.S. Environmental Protection Agency
Pursuant to § 404(c) of the Clean Water Act
Concerning the Spruce No. 1 Mine, Logan County, West Virginia
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TABLE OF CONTENTS
I. Executive Summary 6
II. Introduction 11
III. Background 15
A. Project Description 15
B. Project History 18
C. EPA Headquarters' Actions 22
IV. Site Characteristics and Ecological Functions 26
A. Watershed and Stream Conditions 27
B. Wildlife 30
1. Macroinvertebrates 32
2. Salamanders & Other Herpetofauna 36
3. Fish 38
4. Birds 40
5. Bats & Other Mammals 42
C. Summary 44
V. Basis for Final Determination 45
A. Section 404(c) Standards 45
B. Evaluation of Impacts 45
C. Unacceptable Adverse Impacts on Wildlife within the Spruce No. 1
Mine Project Area 46
1. Macroinvertebrates 47
2. Salamanders & Other Herpetofauna 48
3. Fish 48
4. Water-dependent Birds 49
5. Summary 49
D. Unacceptable Adverse Impacts on Wildlife Downstream of the
Discharge of Dredged or Fill Material from the Spruce No. 1 Mine 50
1. Increases in Pollutants Harmful to Wildlife 50
a. Selenium 51
b. Total Dissolved Solids 58
2. Macroinvertebrates 60
a. Impacts Due to Changes in Water Chemistry 61
b. Food Web Effects of Altered Macroinvertebrate
Communities 68
3. Salamanders & Other Herpetofauna 68
4. Fish 69
a. Potential to Promote the Growth of Golden Algae 69
b. Increased Exposure to Selenium 71
5. Water-dependent Birds 72
6. Summary 73
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E. Compliance with Relevant Portions of the § 404(b)(1) Guidelines 74
1. Less Environmentally Damaging Alternatives/Failure to
Minimize Impacts 74
2. Significant Degradation 76
a. Cumulative Effects 77
b. Secondary Effects 82
3. Mitigation Will Not Adequately Offset Anticipated Impacts 83
a. Proposed Mitigation Will Not Replace High Quality
Resources in Pigeonroost Branch and Oldhouse Branch 85
b. The Compensatory Mitigation Plan Is Based upon a
Misclassification of the Impacted Resources 86
c. The Compensatory Mitigation Plan Lacks an Adequate
Functional Assessment 86
d. Conversion of Erosion Control Channels Will Not
Successfully Replace the Impacted Resources 88
e. The Compensatory Mitigation Plan Does Not Account
for the Loss of Ecological Services Provided by
Headwater Streams 89
4. Summary 90
VI. Other Considerations 91
A. Impacts From Activities Dependent upon Specification of
Pigeonroost Branch and Oldhouse Branch as Disposal Sites for the
Discharge of Dredged or Fill Material for the Spruce No. 1 Mine 91
1. Migratory Birds 91
2. Bats & Other Mammals 93
B. Environmental Justice 94
C. Public Health 96
VII. Conclusions & Final Determination 98
Appendices
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
1 - Impacts to Water Quality and Wildlife
2 - Macroinvertebrates
3 - Mitigation
4 - Selenium
5 - Cumulative Effects
6 - Response to Comments
7 - References
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FIGURES
1. Spruce No. 1 Mine location 15
2. Spruce No. 1 Mine compared to downtown Pittsburgh, PA 16
3. Spruce No. 1 Mine and associated valley fills 17
4. Headwaters Spruce Fork sub-watershed and the Coal River sub-basin 28
5. Map of Central Appalachian ecoregion showing Spruce No. 1 Mine location 31
6. Biodiversity hotspots in the Continental United States and Hawaii 31
7. Illustration of a simplified stream food web, highlighting the importance of
aquatic macroinvertebrates to other stream and riparian wildlife 33
8. Spruce No. 1 Mine and the Dal-Tex Mine Operation 46
9. Spruce No. 1 Mine and the Dal-Tex Mine Outlet Locations 52
10. Selenium Trends (January 2007 to June 2010) for NPDES Permit
WV1011120-Outlet 012 54
11. Selenium trends (January 2007 to June 2010) for NPDES Permit
WV1004956-Outlet 015 55
12. Selenium trends (January 2007 to June 2010) for NPDES Permit
WV1004956-Outlet 001 55
13. Selenium concentrations in discharge from outlet 028 on Spruce No. 1 Mine 57
14. Measure of biological integrity; Observed vs. Expected 65
15. Illustration of the types of disturbance currently found in the Coal River
sub-basin 80
16. Model of the relationship between percent mining within a watershed and
conductivity 82
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TABLES
1. Presence/absence of mayfly (Ephemeroptera) genera in the permit area 35
2. Presence/absence of stonefly (Plecoptera) genera in the permit area 35
3. List of potential crayfish species occurring within permit area 36
4. List of documented herpetofauna species occurring in Logan County or
Boone County, WV 37
5. List of potential fish species occurring within Little Coal River 39
6. List of potential bird species occurring within permit area 40
7. List of potential mammal species occurring within permit area 43
8. Selenium Concentrations near Spruce No. 1 Mine 53
9. Total Recoverable Selenium for Outlets 015, 017 and 028 forNPDES
Permit WV1017021, Mingo Logan Coal Company Spruce No. 1 Mine 56
10. Average conductivity and sulfate values for streams in project area 60
11. Comparison of macroinvertebrate taxa identified on the Spruce No. 1
Mine site and Dal-Tex site. 63
12. Summary of West Virginia O/E null model results for the Spruce No. 1
Mine area 66
13. Mean richness and relative abundance of functional feeding groups among
conductivity categories 67
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I. Executive Summary
This document explains the basis for the US Environmental Protection Agency (EPA)
Clean Water Act § 404(c) Final Determination to withdraw the specification of
Pigeonroost Branch, Oldhouse Branch and their tributaries, all of which are waters of the
United States within Logan County, West Virginia, as a disposal site for dredged or fill
material in connection with construction of the Spruce No. 1 Surface Mine, as authorized
by DA Permit No. 199800436-3 (Section 10: Coal River) (DA Permit).1 This Final
Determination also prohibits the specification of the defined area constituting Pigeonroost
Branch, Oldhouse Branch and their tributaries for use as a disposal site associated with
future surface coal mining that would be expected to result in a nature and scale of
adverse chemical, physical, and biological effects similar to the Spruce No. 1 mine. The
DA Permit was issued by the US Army Corps of Engineers, Huntington District (Corps)
in January 2007, authorizing the Mingo Logan Coal Company to construct six valley
fills, associated sediment structures, and other discharges of fill material to the Right
Fork of Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch, and their tributaries.
If fully constructed, the project will disturb approximately 2,278 acres (about 3.5 square
miles) and bury approximately 7.48 miles of streams beneath 110 million cubic yards of
excess spoil. This is among the largest individual surface mines ever authorized in West
Virginia.
Under § 404(c) of the Clean Water Act, EPA is authorized to prohibit the specification
(including the withdrawal of specification) of any defined area as a disposal site
whenever EPA determines that the discharge of such materials into such area will have an
unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas
(including spawning and breeding areas), wildlife, or recreational areas. EPA is taking
this action under § 404(c) of the Clean Water Act because the discharges associated with
the DA Permit in Pigeonroost Branch, Oldhouse Branch and their tributaries will have
unacceptable adverse effects on wildlife. In addition, the impacts downstream due to the
destruction of those streams will result in unacceptable adverse impacts to wildlife and
also warrant EPA's action under § 404(c).
The project, as permitted, will bury 6.6 miles of Pigeonroost Branch, Oldhouse Branch,
and their tributaries under excess spoil generated by surface coal mining operations.2
These streams represent some of the last remaining least-disturbed, high quality stream
and riparian resources within the Headwaters Spruce Fork sub-watershed and the Coal
1 While the permit also authorizes construction of valley fills and other discharges to the Right Fork of
Seng Camp Creek and its tributaries, EPA is not withdrawing specification of those waters, in part because
some of those discharges have already occurred and because the stream resources in Right Fork of Seng
Camp Creek were subject to a higher level of historic and ongoing human disturbance than those found in
Pigeonroost Branch or Oldhouse Branch. Due to litigation and an agreement with environmental groups,
represented by Ohio Valley Environmental Coalition, operations following the issuance of this DA Permit
have been limited to the Seng Camp Creek watershed, and as part of that agreement one valley fill is
partially constructed.
2 As noted above, the permit authorizes the filling of approximately 7.48 total miles of stream. For the
reasons in footnote 1, EPA's Final Determination only addresses the approximately 6.6 miles of
Pigeonroost Branch, Oldhouse Branch and their tributaries subject to the DA Permit.
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River sub-basin and contain important wildlife resources and habitat. The quality of
these streams is comparable to a West Virginia-designated reference site, and the
macroinvertebrate communities found in these streams, which are used as an indicator of
quality, rank extremely high in comparison to other streams throughout the Central
Appalachia ecoregion and the state of West Virginia. These streams perform critical
hydrologic and biological functions, support diverse and productive biological
communities, contribute to prevention of further degradation of downstream waters, and
play an important role within the context of the overall Headwaters Spruce Fork sub-
watershed and Coal River sub-basin.
Unacceptable adverse impacts to Pigeonroost Branch, Oldhouse Branch, and their
tributaries include the direct burial of 6.6 miles of high quality stream habitat, including
all wildlife in this watershed that utilize these streams for all or part of their life cycles
(e.g., macroinvertebrate, amphibian, fish, and water-dependent bird populations). Streams
within the Central Appalachian ecoregion have some of the greatest aquatic animal
diversity of any area in North America, including one of the richest concentrations of
salamander fauna in the world, as well as many endemic and rare species of mayflies,
stoneflies and caddisflies. In fact, Pigeonroost Branch and Oldhouse Branch contain
extremely high mayfly and stonefly diversity, both within the Central Appalachian
ecoregion and within the state of West Virginia. With their adjacent riparian areas, these
streams provide important habitat for 84 taxa of macroinvertebrates, up to 46 species of
amphibians and reptiles, 4 species of crayfish, and 5 species of fish, as well as birds, bats,
and other mammals. As some of the last remaining high quality, least-disturbed
headwater stream habitat within the sub-basin, these streams not only support resident
wildlife, but also provide ecosystem functions for downstream waters, serve as refugia
for aquatic life and potential sources for recolonizing nearby waters, and ultimately serve
to maintain the aquatic ecosystem integrity in the sub-basin and the rich animal diversity
in the ecoregion.
Burial of Pigeonroost Branch and Oldhouse Branch and their tributaries will also result in
unacceptable adverse effects on wildlife downstream through the transformation of the
buried areas into sources of pollution that will contribute contaminants to downstream
waters and the removal of functions performed by the buried streams. Based on recent
peer-reviewed literature, as well as available data from adjacent mine sites and from the
active portion of the Spruce No. 1 Surface Mine, EPA has concluded that the full
construction of the Spruce No. 1 Surface Mine will transform these headwater streams
from high quality habitat into sources of pollutants (particularly total dissolved solids and
selenium) that will travel downstream and adversely impact the wildlife communities that
utilize these downstream waters. Increased pollutant levels will lead to loss of
macroinvertebrate communities and population shifts to more pollution-tolerant taxa,
specifically the extirpation of ecologically important macroinvertebrates. Through the
loss of stream macroinvertebrate communities, there will be, in turn, substantial effects
on fish, amphibian, and bird populations that rely on these communities as a food source.
Furthermore, the increased loading of pollutants to downstream receiving waters
increases the potential for harmful golden algal blooms, while increased selenium
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exposure will result in impaired salamander populations and adverse effects to the
reproduction of fish and bird species, thus harming the ability of these local populations
to rebound. It is well recognized that the loss of a certain number of individuals of a
species in a local ecological community can be tolerated, provided that the species
continues to reproduce to replace lost individuals. However, when species are impacted
by both acute stressors (e.g., food web changes, algal blooms) and exposure to
reproductive toxicants, there is an increased risk of the loss of an entire species within an
area. The loss of macroinvertebrate prey populations, increased risk of harmful golden
algal blooms, and additional exposure to selenium will have an unacceptable adverse
effect on the 26 fish species found in Spruce Fork as well as amphibians, crayfish, and
bird species that depend on downstream waters for food or habitat.
The watersheds the project is located in, the Headwaters Spruce Fork sub-watershed and
the larger Coal River sub-basin, have been heavily impacted by mining and the streams
within this watershed have experienced substantial impairment. Currently, there have
been more than 257 past and present surface mining permits issued in the Coal River sub-
basin, and the corresponding mines collectively occupy more than 13% of the land area.
In the Headwaters Spruce Fork sub-watershed, more than 34 past and present surface
mine permits have been issued, and the corresponding mines collectively occupy more
than 33% of the land area. If constructed as permitted, the project will occupy an
additional 2.8% of the Headwaters Spruce Fork sub-watershed land area, and burial of
Pigeonroost Branch, Oldhouse Branch and their tributaries will destroy 5.6% of the
streams within the sub-watershed.
As least-disturbed streams in a watershed largely affected by mining, Pigeonroost
Branch, Oldhouse Branch and their tributaries represent a high-value resource for the
wildlife within the watershed. The Spruce No. 1 Mine will eliminate the entire suite of
important physical, chemical and biological functions provided by these streams,
including maintenance of biologically diverse wildlife habitat, and will critically degrade
the chemical and biological integrity of downstream waters. Because the project will
have unacceptable adverse effects on these high quality wildlife resources, EPA believes
it is appropriate to withdraw specification to ensure the protection of these resources from
discharges of dredged or fill material authorized under this DA permit.
Throughout the history of the Spruce No. 1 Surface Mine DA permit, EPA has raised
concerns regarding adverse impacts to the environment. Additional data and information,
including peer-reviewed scientific studies of the ecoregion, have become available since
permit issuance. The peer-reviewed literature now reflect a growing consensus of the
importance of headwater streams; a growing concern about the adverse ecological effects
of mountaintop removal mining, specifically with regard to the effects of elevated levels
of total dissolved solids discharged by mining operations on downstream aquatic
ecosystems; and concerns that impacted streams cannot be easily recreated or replaced.
These advances in understanding support EPA's long-standing concerns about this
project regarding the potential for unacceptable adverse effects on wildlife, adverse water
quality impacts, significant cumulative effects, as well as the shortcomings in avoidance,
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minimization, and compensatory mitigation measures designed to reduce environmental
impacts from the project.
On April 2, 2010, EPA Region III published in the Federal Register a Proposed
Determination to prohibit, restrict or deny the specification or the use for specification
(including withdrawal of specification) of certain waters at the project site as disposal
sites for the discharge of dredged or fill material for the construction of the Spruce No. 1
Surface Mine. EPA Region III took this step because it believed that discharges
authorized by the DA Permit would result in a significant loss of wildlife habitat and also
cause significant degradation of downstream aquatic ecosystems and therefore could have
unacceptable adverse effects on wildlife. A public hearing regarding the Proposed
Determination was conducted on May 18, 2010. EPA Region III received more than 100
oral comments and more than 50,000 written comments both supporting and opposing its
Proposed Determination.
On September 24, 2010, U.S. Environmental Protection Agency (EPA) Region III
submitted to EPA Headquarters its Recommended Determination that the specification
embodied in DA Permit No. 199800436-3 (Section 10: Coal River) of Pigeonroost
Branch and Oldhouse Branch as disposal sites for discharges of dredged or fill material
for construction of the Spruce No. 1 Surface Mine be withdrawn. EPA Region III based
this recommendation upon a conclusion that the discharges of dredged or fill material to
Pigeonroost Branch and Oldhouse Branch for the purpose of constructing the Spruce No.
1 Surface Mine as authorized would likely have unacceptable adverse effects on wildlife.
The U.S. Fish and Wildlife Service (USFWS), in its comments on both the Proposed and
Recommended Determinations, concurred with EPA Region Ill's conclusion that the
project, as authorized, would result in unacceptable adverse effects on wildlife and that
this conclusion is supported by the available scientific information. USFWS also notes
that it has consistently expressed concerns regarding the loss of headwater streams and
adjacent riparian and terrestrial habitats associated with the Spruce No. 1 Surface Mine,
as well as its likely impacts on downstream water quality, aquatic organisms, and
terrestrial and aquatic wildlife that depend on those resources.
Following review of the public comments received, the past and new scientific data, and
EPA Region Ill's Recommended Determination, EPA Headquarters has concluded that
the discharge of dredged or fill material to Pigeonroost Branch, Oldhouse Branch, and
their tributaries, in connection with the construction of valley fills and sediment ponds, as
authorized by DA Permit No. 199800436-3 (Section 10: Coal River), will result in
unacceptable adverse effects on wildlife. The administrative record developed in this case
fully supports the conclusion that the Spruce No. 1 Surface Mine will have unacceptable
adverse effects to wildlife, due to the filling of Pigeonroost and Oldhouse Branch, and
their tributaries. In addition, the administrative record demonstrates that the Spruce No. 1
Surface Mine will have unacceptable adverse effects on wildlife downstream of the
project site.
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Furthermore, these adverse impacts do not comply with the requirements of the Clean
Water Act (CWA) and EPA's implementing regulations under § 404(b)(1). EPA has
determined that the Spruce No. 1 Surface Mine fails to adequately evaluate less
environmentally damaging alternatives, will cause or contribute to significant degradation
of waters of the United States (especially when considered in the context of the
significant cumulative losses and impairment of streams across the Central Appalachian
ecoregion), and lacks compensatory mitigation to adequately offset the impacts to
Pigeonroost Branch and Oldhouse Branch. These failures to comply with the Guidelines
serve to strengthen EPA's judgment about the unacceptability of the significant adverse
impacts that will occur.
Based on these findings and pursuant to § 404(c) of the CWA, this Final Determination
withdraws the specification of Pigeonroost Branch, Oldhouse Branch, and their
tributaries, as described in DA Permit No. 199800436-3 (Section 10: Coal River), as a
disposal site for the discharge of dredged or fill material for the purpose of construction
of the Spruce No. 1 Surface Mine. This Final Determination also prohibits the
specification of the defined area constituting Pigeonroost Branch, Oldhouse Branch and
their tributaries for use as a disposal site associated with future surface coal mining that
would be expected to result in a nature and scale of adverse chemical, physical, and
biological effects similar to the Spruce No. 1 mine.
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II. Introduction
The purpose of the Clean Water Act is to "restore and maintain the physical, chemical,
and biological integrity of the Nation's waters" (33 U.S.C. 1251(a)). The Act also
defines "pollution" as "the man made or man induced alteration of the chemical, physical,
biological, and radiological integrity of water" (33 U.S.C. § 1362(19)). The Supreme
Court has recognized " [t]his broad conception of pollutionone which expressly evinces
Congress' concern with the physical and biological integrity of water" {PUD No. 1 of
Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 719 (1994)). Over the
years, various definitions have been given to the term "biological integrity." The
working definition that has been in place since 1981 is: "the capability of supporting and
maintaining a balanced, integrated, adaptive community of organisms having a species
composition, diversity, and functional organization comparable to that of the natural
habitat of the region." (http://www.epa.gov/bioindicators/html/biointeg.htmn. This
definition includes protection of macroinvertebrate communities, as well as fish
populations. This goes beyond protecting the function performed by various members of
the aquatic community and extends to protection of the quality of the aquatic community
itself.
The CWA, 33 U.S.C. §§ 1251 et seq., prohibits the discharge of pollutants, including
dredged or fill material, into waters of the United States (including wetlands) except in
compliance with, among other provisions, § 404 of the CWA, 33 U.S.C. § 1344. Section
404 authorizes the Secretary of the Army (Secretary), acting through the Chief of
Engineers, to authorize the discharge of dredged or fill material at specified disposal
sites. This authorization is conducted, in part, through the application of environmental
guidelines developed by EPA, in conjunction with the Secretary, under § 404(b) of the
CWA, 33 U.S.C. § 1344(b) (§ 404(b)(1) Guidelines). Section 404(c) of the CWA, 33
U.S.C. § 1344(c), authorizes the EPA to prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal site. EPA is authorized to
restrict or deny the use of any defined area for specification (including the withdrawal of
specification) as a disposal site, whenever it determines, after notice and opportunity for
public hearing, that the discharge of such materials into such area will have an
unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas
(including spawning and breeding areas), wildlife, or recreational areas.
The procedures for implementation of § 404(c) are set forth in 40 CFR Part 231. Under
those procedures, if the Regional Administrator has reason to believe that use of a site for
the discharge of dredged or fill material may have an unacceptable adverse effect on one
or more of the aforementioned resources, he may initiate the § 404(c) process by
notifying the U.S. Army Corps of Engineers and the applicant (and/or project proponent)
that he intends to issue a Proposed Determination. Each of those parties then has fifteen
days to demonstrate to the satisfaction of the Regional Administrator that no
unacceptable adverse effects will occur, or that corrective action to prevent an
unacceptable adverse effect will be taken. If no such information is provided to the
Regional Administrator, or if the Regional Administrator is not satisfied that no
unacceptable adverse effect will occur, the Regional Administrator will publish a notice
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in the Federal Register of his Proposed Determination, soliciting public comment and
offering an opportunity for a public hearing.
The procedures provide that the Regional Administrator will decide whether to withdraw
the Proposed Determination or prepare a Recommended Determination following the
public hearing and the close of the comment period. A decision to withdraw may be
reviewed at the discretion of the Assistant Administrator for Water at EPA Headquarters.
If the Regional Administrator prepares a Recommended Determination, the
recommendation and the administrative record compiled in the Regional Office is
forwarded to the Assistant Administrator for Water at EPA Headquarters. The Assistant
Administrator for Water makes the Final Determination affirming, modifying, or
rescinding the Recommended Determination.3
This document explains the basis for the EPA Final Determination to withdraw the
specification of Pigeonroost Branch, Oldhouse Branch and their tributaries, all of which
are waters of the United States within Logan County, West Virginia, as a disposal site for
dredged or fill material in connection with construction of the Spruce No. 1 Surface Mine
(hereafter "Spruce No. 1 Mine" or "the project") as authorized by DA Permit No.
199800436-3 (Section 10: Coal River) (hereafter "DA permit")4 While the permit also
authorizes construction of valley fills and other discharges to the Right Fork of Seng
Camp Creek and its tributaries, EPA is not withdrawing specification of those waters, in
part because some of those discharges have already occurred and because the stream
resources in Right Fork of Seng Camp Creek were subject to a higher level of historic
and ongoing human disturbance than those found in Pigeonroost Branch or Oldhouse
Branch.
EPA is taking this action under § 404(c) of the Clean Water Act because the discharges to
Pigeonroost Branch and Oldhouse Branch and their tributaries for the purpose of
constructing Spruce No. 1 Mine as authorized by the permit will have unacceptable
adverse effects on wildlife. Pigeonroost Branch and Oldhouse Branch and their
tributaries are some of the last remaining streams within the Headwaters Spruce Fork
sub-watershed and the larger Coal River sub-basin that represent "least-disturbed"
conditions.5 As such, they perform important hydrologic and biological functions,
support diverse and productive biological communities, contribute to prevention of
further degradation of downstream waters, and play an important role within the context
of the overall Headwaters Spruce Fork sub-watershed and Coal River sub-basin. Within
the streams and riparian areas of the project area, over 84 taxa of macroinvertebrates are
3 In 1984, the EPA Administrator delegated the authority to make final decisions under § 404(c) to EPA's
national Clean Water Act § 404 program manager, who is the Assistant Administrator for Water. That
delegation remains in effect.
4 As stated in the Section VII, this Final Determination also prohibits the specification of the defined area
constituting Pigeonroost Branch, Oldhouse Branch and their tributaries for use as a disposal site associated
with future surface coal mining that would be expected to result in a nature and scale of adverse chemical,
physical, and biological effects similar to the Spruce No. 1 Mine.
5 Least-disturbed conditions reflect a type of reference condition, where these sites have less human
disturbance than others and represent the best existing condition within a watershed (Stoddard et al. 2006).
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documented to exist, as well as up to 46 species of reptiles and amphibians, 4 species of
crayfish, 5 species of fish and at least one water-dependent bird species.
The construction of Spruce No. 1 Mine as authorized will bury virtually all of Oldhouse
Branch and its tributaries and much of Pigeonroost Branch and its tributaries under
excess spoil generated by surface coal mining operations. These discharges will result in
the burial of approximately 6.6 miles of high quality Appalachian headwater streams in a
watershed that has already experienced substantial impairment. The loss of the 6.6 miles
of high quality Appalachian headwater streams in this watershed will result in a
significant loss (over 5.6% of the total stream miles in Headwaters Spruce Fork sub-
watershed) of valuable wildlife habitat for many species in this watershed. These direct
impacts will result in unacceptable adverse impacts to wildlife in this watershed, within
the project boundaries.
Beyond the direct burial of wildlife species and loss of high quality habitat in this
watershed, EPA has also determined that the project will result in unacceptable adverse
impacts on downstream wildlife. If constructed as permitted, the Spruce No. 1 Mine will
result in increased pollutant loadings in Spruce Fork and the Little Coal River. Increased
salinity levels will lead to loss of macroinvertebrate communities and population shifts to
more pollution-tolerant taxa, specifically the extirpation of ecologically important
macroinvertebrates. In addition to these unacceptable adverse impacts, loss of
macroinvertebrate prey populations, combined with increased potential for harmful
golden algal blooms and additional exposure to selenium will have an unacceptable
adverse effect on the 26 fish species found in Spruce Fork as well as amphibians, reptiles,
crayfish, and bird species that depend on aquatic organisms and downstream waters for
food or habitat.
In addition, EPA has given consideration to the project's compliance with the § 404(b)(1)
Guidelines. As stated in the Preamble to the § 404(c) regulations, "one of the basic
functions of 404(c) is to police the application of the 404(b)(1) Guidelines" (44 FR
58076, 58078 (Oct. 9, 1979)). Accordingly, EPA has determined that the Spruce No. 1
Mine, as permitted,
fails to adequately evaluate less environmentally damaging alternatives (for a
non-water dependent project such as this one, a failure to adequately evaluate
alternatives means that the applicant has failed to rebut the presumption that there
are less environmentally damaging practicable alternatives available);
will cause or contribute to significant degradation of waters of the United States
(especially when considered in the context of the significant cumulative losses
and impairment of streams across the Central Appalachian ecoregion); and
lacks compensatory mitigation to offset the impacts to Pigeonroost Branch and
Oldhouse Branch to below the level of significance.
These inconsistencies with the Guidelines provide additional support for EPA's
conclusion that the adverse impacts are unacceptable.
This document is divided into seven sections. The next section, Section III, describes the
Spruce No. 1 Mine as authorized and summarizes the history of the project. Section IV.
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describes the environmental characteristics of the project area, specifically Pigeonroost
Branch and Oldhouse Branch, and the overall Coal River sub-basin. Section V. examines
the anticipated impacts from the Spruce No. 1 Mine, as authorized. Consistent with §
404(c), this discussion focuses on unacceptable adverse impacts to wildlife. Section VI.
discusses other considerations, including impacts from activities associated with the
Spruce No. 1 Mine that do not include direct discharges of dredged or fill material to
jurisdictional waters but which may depend upon authorization of such discharges, and
that are likely to cause direct, indirect, and cumulative effects to the environment and to
local communities. Section VII. contains EPA's Final Determination.
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III. Background
III.A. Project Description
According to the Environmental Impact Statement (EIS) prepared by the Corps in 2006
(Spruce No. 1 EIS) for the project, the Spruce No. 1 Mine is a mountaintop mining
project targeting bituminous coal seams overlying and including the Middle Coalburg
coal seam in the western portion of the project area. In the eastern portion of the project
area, mountaintop mining would be limited to those seams including and overlying the
Upper Stockton seam, with contour mining in conjunction with auger and/or
highwall/thin-seam mining utilized to recover the Middle Coalburg seam.
The project is located in the East District of Logan County, West Virginia at Latitude
38°52'39" and Longitude 81°47'52" depicted on the United States Geological Survey 7.5-
minute Clothier and Amherstdale Quadrangles (Figure 1). The mine site is located
approximately two miles northeast of the town of Blair in Logan County, West Virginia.
Figure 1. Spruce No. 1 Mine location
The Spruce No. 1 Mine as authorized by DA Permit No. 199800436-3
(Section 10: Coal River), is one of the largest mountaintop mining projects ever
authorized in West Virginia. As authorized, it will disturb approximately 2,278 acres
(about 3.5 square miles) and bury approximately 7.48 miles of streams. By way of
comparison, the project area would take up a sizeable portion of the downtown area of
Pittsburgh, PA (Figure 2).
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Figure 2. Spruce No. 1 Mine compared to downtown Pittsburgh, PA
Mountaintop mining involves removing the top of a mountain to recover coal seams
contained within the mountain. Explosives are used to break apart the mountain's
bedrock and earth-moving equipment is used to remove the excess rock, topsoil and
debris, called "spoil", which formerly had composed the portions of the mountain above
and immediately below the coal seam. The fractured material is larger in volume than
when it was consolidated bedrock within the mountain. The amount of spoil that may be
placed back on the mined area is limited by this "swell" in volume, as well as by stability
concerns. As a result, mountaintop mining generates large quantities of "excess spoil"
that cannot be placed back in the mined area. The "spoil" is then typically deposited in
adjacent valleys, thereby burying streams that flow through those valleys.
The Spruce No. 1 Mine EIS describes the project impacts as a disturbance of a total of
2,278 acres to recover seventy-five percent (75%) of the coal reserve targeted for
extraction within the project area during fifteen (15) phases. The mining process would
remove 400 to 450 vertical feet from the height of the mountain, or approximately 501
million cubic yards of overburden material. Nearly 391 million cubic yards of spoil
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would be placed within the mined area (i.e., back onto the mountains) and the remaining
110 million cubic yards of excess spoil would be placed in six valley fills, burying all or
portions of the Right Fork of Seng Camp Creek, Pigeonroost Branch, and Oldhouse
Branch and their tributaries (hereafter, references to Seng Camp Creek, Pigeonroost
Branch, and Oldhouse Branch also include all tributaries to those waters that will be
impacted by the project as authorized). Specifically, the permit authorizes construction
of Valley Fills 1A and IB in Seng Camp Creek; Valley Fills 2A, 2B, and 3 in
Pigeonroost Branch; and Valley Fill 4 in Oldhouse Branch, and numerous sediment
ponds, mined-through areas and other fills in waters of the U.S. (Figure 3). A detailed
discussion of Spruce No. 1 Mine can be found in the Spruce No. 1 EIS on pages 2-35
through 2-61.
Dal-Tex
Mine Complex
Spruce
No. 1 Mine
Pigeonroost Branch
Trace Branch
Oldhouse Branch
"1 Boone
Kilometers
ite Oak Branch
Logan
H Dal-Tex Mine Complex
| Spruce No. 1 Mine
Valley Fill
VW Counties
NHD24k Hydro
Figure 3. Spruce No. 1 Mine and associated valley fills
The Spruce No.l Mine Surface Mining Control and Reclamation Act (SMCRA) Permit
S-5013-97, Incidental Boundary Revision (IBR4, Modification 11) describes impacts
from the project as including placement of dredged and fill material into approximately:
0.12 acre of emergent wetlands
10,630 linear feet (2.01 miles) of ephemeral stream channels
28,698 linear feet (5.44 miles) of intermittent stream channels
165 linear feet (0.03 miles) of perennial stream channel
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While EPA is providing the foregoing summary from the SMCRA Permit S-5013-97 IBR
for descriptive purposes, EPA believes that the description provided in the Spruce No. 1
Mine SMCRA Permit and in the Spruce No. 1 EIS incorrectly characterizes over 5 miles
of stream resources that will be impacted, as set forth in more detail in Section V.E.3.b.
and in Appendix 3.
III.B. Project History
The Spruce No. 1 Mine has a lengthy and complex regulatory history. The project was
originally proposed by Hobet Mining Inc., a subsidiary of Arch Coal, Inc. The project as
originally proposed in 1998 was larger than the authorized project and would have
directly impacted a total surface area of 3,113 acres and 57,755 linear feet (more than ten
miles) of streams. At that time, the Corps tendered and ultimately withdrew a nationwide
permit for the project, and Hobet Mining, Inc. advised the Corps it would submit an
individual permit application. An EIS was prepared for the Spruce No. 1 Mine by the
Army Corps of Engineers Huntington District pursuant to the National Environmental
Policy Act, 42 U.S.C. 4332(C). The original project application was also a primary
impetus for the Interagency Mountaintop Mining/Valley Fills in Appalachia
Programmatic Environmental Impact Statement (PEIS), which was finalized in October
2005. The PEIS is available at www.epa.gov/Region3/mtntop/eis2005.htm.
An initial 2002 Spruce No. 1 Mine Draft EIS considered a proposed project that was
similar in scope and size to the original project described above. EPA's review of the
2002 Draft Environmental Impact Statement found gaps in the analyses of the mine and
related adverse environmental impacts. EPA was particularly concerned by the lack of
information regarding the nature and extent of impacts to the high quality streams that
would be buried under valley fills, and recommended additional evaluation to support the
analysis of less environmentally damaging alternatives. In a letter dated August 12,
2002, EPA Region III indicated the EIS contained inadequate information for public
review and for decision-makers.
Following the transfer of the Spruce No. 1 Mine holdings and responsibilities by Arch
Coal, Inc. to its Mingo Logan Coal Company (hereafter Mingo Logan or "permittee") in
late 2005, a revised Spruce No. 1 Mine Draft EIS was prepared in 2006. At that time, the
project was reconfigured to reduce impacts. The mine plan was revised to eliminate
construction of a valley fill in White Oak Branch, a State-designated reference stream
(see Section IV. A.) and the project area was reduced from 3,113 to 2,278 acres with
direct stream impacts reduced to 7.48 miles.
In EPA's June 16, 2006, comment letter on the 2006 Draft EIS, EPA recognized that
impacts from the mine had been reduced and the quality of EIS information had
improved. However, the letter also noted that EPA had remaining environmental
concerns associated with the Spruce No. 1 Mine. These concerns included potential
adverse impacts to water quality (specifically, the potential to discharge selenium and the
known association of similar mining operations with degradation of downstream aquatic
communities); uncertainties regarding the proposed mitigation; the need for additional
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analysis of potential environmental justice issues; and the lack of a study related to the
cumulative effects of multiple mining operations within the Little Coal River watershed.
EPA continued to stress its belief that corrective measures should be required to reduce
environmental impacts and that other identified information, data, and analyses should be
included in the final EIS.
Concerns regarding the Spruce No. 1 Mine were also raised by the USFWS, Ecological
Services West Virginia Field Office in a letter dated May 30, 2006 from the Department
of Interior, Philadelphia to the Huntington District Army Corps of Engineers. In that
letter, the USFWS expressed concerns over the permittee's compensatory mitigation
plan. The USFWS stated there was inadequate compensatory mitigation for the project
because the assessment methodology used by the permittee to evaluate stream impacts
considered only the physical characteristics of the impacted streams, without considering
the equally important biological or chemical characteristics. The USFWS expressed
concern the project would impact healthy, biologically functional streams and the
mitigation included erosion control structures that were designed to convey water but
would not replace the streams' lost ecological services.
The Corps issued the Spruce No. 1 Mine Final EIS on September 22, 2006. On October
23, 2006, EPA commented on the Final EIS, noting that many of EPA's comments had
not been adequately addressed. On January 22, 2007, the Corps issued Clean Water Act
§ 404 Permit, DA Permit No. 199800436-3 (Section 10: Coal River), to Mingo Logan for
the Spruce No. 1 Mine. That permit specified the Right Fork of Seng Camp Creek,
Pigeonroost Branch and its tributaries, and Oldhouse Branch and its tributaries as
disposal sites for the discharge of dredged or fill material from the Spruce No. 1 Mine. In
addition to its DA Permit No. 199800436-3 (Section 10: Coal River), the project has
received the following authorizations from the West Virginia Department of
Environmental Protection (WVDEP): authorization pursuant to the State's surface mining
program approved under SMCRA, 30 U.S.C. 1201-1328 (SMCRA permit); a National
Pollutant Discharge Elimination System (NPDES) permit for discharges of pollutants
pursuant to § 402 of the Clean Water Act (33 U.S.C. 1342); and a Clean Water Act § 401
water quality certification (33 U.S.C. 1341).
On January 30, 2007, a number of environmental groups, represented by Ohio Valley
Environmental Coalition, filed a complaint against the Corps in federal district court
challenging its decision to issue the permit. In early 2007, Mingo Logan commenced
limited operations at Spruce No. 1 Mine pursuant to DA Permit No. 199800436-3
(Section 10: Coal River), subject to an agreement with the environmental groups who are
plaintiffs in the litigation. Pursuant to that agreement, Mingo Logan has been operating
in a portion of the project site in the Seng Camp Creek drainage area, and has been
constructing one valley fill in that area (valley fill 1 A). Under the agreement, Mingo
Logan must give plaintiffs 20 days' notice before expanding operations beyond the area
subject to the agreement, and has done so once without objection from the plaintiffs.
Mingo Logan's operations in the Seng Camp Creek watershed have generated data related
to impacts from the project as constructed, including discharge monitoring reports
submitted to WVDEP. The litigation filed by the environmental groups was stayed for a
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period of time pending the U.S. Court of Appeals for the Fourth Circuit's decision in
Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556F. 3d 177 (4th Cir.
2009).
During this period, the scientific literature reflected a growing consensus of the
importance of headwater streams; a growing concern about the adverse ecological effects
of mountaintop removal mining; and concern that impacted streams cannot easily be
recreated or replaced. This Final Determination cites to nearly 100 articles and studies
developed since the time the Spruce No. 1 Mine DA permit was issued. Many studies
now point to the role headwater streams play in the transport of water, sediments, organic
matter, nutrients, and organisms to downstream environments; their use by organisms for
spawning or refugia; and their contribution to regional biodiversity (Meyer et al. 2007).
Additionally, destruction or modification of headwater streams has been shown to affect
the integrity of downstream waters, in part through changes in hydrology, chemistry and
stream biota (Freeman et al. 2007, Wipfli et al. 2007).
The literature specifically documenting the effects of mountaintop removal mining has
also grown, and additional studies have increased EPA's understanding of the effects of
elevated levels of total dissolved solids (TDS) discharged through mining operations on
downstream aquatic ecosystems (Pond et al. 2008, Simmons et al. 2008, Palmer et al.
2010, Fritz et al. 2010). EPA's understanding of adverse effects from selenium
associated with surface coal mining likewise has expanded since issuance of the permit.
In February 2009, WVDEP issued out a report entitled: 'Selenium bioaccumulation
among select stream and lake fishes in West Virginia.' The WVDEP report confirmed
that significant environmental harm due to selenium was a problem in West Virginia. A
January 2010 WVDEP report to the West Virginia legislature outlined the issues with
selenium in West Virginia watersheds. Other studies that have contributed to a greater
understanding of the adverse effects of selenium include additional investigations and
discussions have continued increased selenium concerns including: (Chapman et al. 2009,
Diehl et al. 2005, Ferreri et al. 2004, Lemly 2009, Palmer et al. 2010, Neuzil et al. 2005,
Vesper et al. 2008).
In addition to the growing body of literature documenting the importance of headwater
streams and the effects of mountaintop removal mining, additional information on the
efficacy of mitigation has also been published. For example, recent research has shown
that stream restoration projects based upon channel design can be problematic (Slate et al.
2007, Simon et al. 2007) and are not effective in restoring ecological function and
biodiversity (Tullos et al. 2009, Palmer et al. 2009, Fritz et al. 2010). In a study on
streams impacted by mountaintop mining and valley fills, Fritz et al. (2010) found that
habitat features and aquatic assemblages were very different in constructed channels than
natural channels, and suggested that constructed channels should not be used for
mitigation on-site. In the 2008 Mitigation Rule, EPA and the Corps acknowledged that
headwater streams are a difficult to replace resource and stream creation is among the
more difficult and least successful forms of mitigation.
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In light of this growing body of scientific data documenting the environmental impacts
associated with surface coal mining, EPA and other federal agencies discussed
opportunities to reduce those impacts under existing statutory and regulatory authorities.
On June 11, 2009, EPA, the Department of the Army, and the Department of the Interior
entered into a Memorandum of Understanding Implementing the Interagency Action Plan
on Appalachian Surface Coal Mining, in which the agencies agreed to take steps to
reduce the harmful environmental consequences of Appalachian surface coal mining.
On September 3, 2009, EPA Region III requested that the Corps suspend, modify or
revoke DA Permit No. 199800436-3 (Section 10: Coal River) for discharges associated
with the Spruce No. 1 Mine. On September 30, 2009, the Corps stated that it would not
reconsider the permit authorization. As a result, EPA Region III initiated the Clean
Water Act § 404(c) process on October 16, 2009. EPA Region III communicated with
representatives of Mingo Logan and the Corps in person, by telephone, and by electronic
mail on several occasions to determine whether corrective action would be taken to
address EPA Region Ill's concerns. Earlier in 2009, litigation by the environmental
groups had reactivated following the decision in Ohio Valley Environmental Coalition v.
Aracoma Coal Co., 556 F. 3d 111 (4th Cir. 2009). The litigation was then stayed until
November 3, 2009, a deadline that would be further extended by the Court as EPA's
CWA § 404(c) process proceeded.
On April 2, 2010, EPA Region III published in the Federal Register a Proposed
Determination to withdraw specification of Pigeonroost Branch and Oldhouse Branch
pursuant to CWA § 404(c). EPA Region III solicited public comments on the Proposed
Determination and held a public hearing in Charleston, West Virginia on May 18, 2010
that was attended by 520 people, during which 121 oral comments were communicated to
EPA. EPA Region III received over 50,000 comments on the Proposed Determination.
Of these, approximately 70% of comment letters submitted on the Proposed
Determination generally supported EPA's Proposed Determination while 65% of public
hearing participants generally opposed EPA's Proposed Determination.
USFWS, in its comments on EPA Region Ill's Proposed and Recommended
Determinations, supported the withdrawal of specification for discharges of dredged or
fill material to Pigeonroost Branch and Oldhouse Branch. Its June 2, 2009 comment
letter on the Proposed Determination expressed concerns about potential impacts of the
project on fish and wildlife resources, including macroinvertebrate genera. In addition,
the letter stated
"[T]he preponderance of available scientific information strongly suggests that
construction of the project as authorized would cause or contribute to significant
degradation of waters of the United States, both on-site and in receiving waters
downstream of the proposed mine."
"Some adverse impacts of the proposed project include:
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the likely loss of macroinvertebrate genera (diversity and abundance) and
the cascading biological consequences of that loss on other aquatic and
terrestrial wildlife;
the direct loss of a significant number of salamanders, indirect effects to
perhaps as many more, and the effects of these losses on other aquatic and
terrestrial wildlife;
degraded fish communities, including reduced diversity and abundance;
direct loss of habitat, and direct and indirect loss of food resources for
forest interior and riparian-obligate species of migratory birds, including
six species the Service considers Birds of Conservation Concern (cerulean,
Kentucky, Swainson's, and worm-eating warblers; Louisiana Waterthrush;
wood thrush); and
direct loss of habitat, and direct and indirect loss of food resources, for a
variety of bat species, many of which are already threatened by the spread
of white-nose syndrome in West Virginia and which may require
additional protection in the near future."
EPA's regulations require that the Regional Administrator either withdraw the Proposed
Determination or prepare a Recommended Determination within 30 days after the
conclusion of the public hearing, in this case by June 16, 2010 (40 CFR 231.5(a)).
However, in order to allow full consideration of the extensive record, including the over
50,000 public comments received, EPA Region III extended the time period provided in
40 CFR 231.5(a) for the preparation of the Recommended Determination until no later
than September 24, 2010 (75 FR 39691). This time extension was made under authority
of 40 CFR 231.8, which allows for such extensions upon a showing of good cause. EPA
Region III reviewed the information provided during the public comment period, and
completed its review within the extended time period.
The Recommended Determination was signed by the Regional Administrator and
submitted to EPA Headquarters along with the complete administrative record on
September 24, 2010, concluding EPA Region Ill's § 404(c) review of the Spruce No. 1
Mine. This action initiated the period for review and final action by EPA's Assistant
Administrator for Water.
III.C. EPA Headquarters' Actions
Recognizing the role for EPA Headquarters in taking any final action to withdraw or
restrict specification from the project, EPA Headquarters has been engaged in the §
404(c) review since it was initiated on October 16, 2009. Staff from EPA Headquarters
attended the public hearing in Charleston, West Virginia, and heard first-hand the
testimony provided by those who live and work in the region.
Following receipt of the Recommended Determination, § 404(c) regulations require EPA
Headquarters to provide an opportunity for the project's proponents to propose corrective
actions intended to prevent the unacceptable adverse environmental impacts presented in
the Recommended Determination. EPA Headquarters provided the Region III
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Recommended Determination to Arch Coal Inc., the United States Department of the
Army, the Corps, WVDEP and four land and mineral rights owners and notified these
stakeholders that they would have 15 days to present any corrective actions to EPA
Headquarters, consistent with EPA's § 404(c) regulations.
EPA received a response from Hunton & Williams, LLP, on behalf of Arch Coal (i.e.,
Mingo Logan), Inc. requesting a 30-day extension of this period, to November 29, 2010,
in order to review the Recommended Determination. Provided in 40 CFR 231.8, EPA
may, upon showing of good cause, extend the time requirements in the § 404(c)
regulations. EPA believed it was appropriate to grant the permittee's request for a 30-day
extension to the consultation process, and an announcement was published in the Federal
Register on November 10, 2010, announcing the deadline for proposing corrective
actions was extended to November 29, 2010.
EPA's § 404(c) regulations provide that the Assistant Administrator for Water shall issue
a Final Determination within 60 days of receiving the Regional Administrator's
Recommended Determination. This 60-day period was scheduled to expire on November
23, 2010. As the consultation period with the permittee was extended to November 29,
2010, EPA believed it was necessary to extend the deadline for issuing a Final
Determination until February 22, 2011. This extension was published in the same Federal
Register announcement as the extension of the consultation period, and was intended to
enable EPA to more carefully consider the Region's Recommended Determination, as
well as the public comments received, and information on possible corrective actions
presented during the consultation process. In addition, this date was consistent with an
order issued by the U.S. District Court for the Southern District of West Virginia on
November 2, 2010, granting a continued stay in litigation over the Spruce No. 1 permit
until February 22, 2011.
EPA also received a response from one of the land and mineral rights owners, the United
Company. In his November 9, 2010 letter to EPA, James McGlothlin, President of the
United Company, expressed his opposition to the EPA Region III Recommended
Determination and his belief that such an action would represent a "regulatory taking."
Mr. McGlothlin's letter included a copy of a May 10, 2010, letter he had submitted to
EPA Region III and a request that he be included in any consultation meeting organized
by EPA Headquarters regarding EPA Region Ill's Recommended Determination on the
Spruce No. 1 Mine.
On November 16, 2010, a consultation meeting was held at EPA Headquarters in
Washington, DC to discuss the Region III Recommended Determination and potential
corrective actions that could be undertaken to avoid the unacceptable adverse impacts
that were of concern to EPA. Participants at the meeting included the EPA Assistant
Administrator for Water, the EPA Region III Regional Administrator and Regional
management, Office of Water staff, managers, and legal counsel, representatives from
Arch Coal, Inc. and their legal counsel, United Company and their legal counsel,
WVDEP, and the Corps' Huntington District.
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At the beginning of the meeting, EPA Region III gave an overview of the Recommended
Determination, stating that discharges of fill material into Pigeonroost Branch and
Oldhouse Branch associated with the Spruce No. 1 Mine would likely result in
unacceptable adverse effects on wildlife. The EPA Assistant Administrator for Water
then stated that a major purpose of the consultation process is to explore corrective
actions that might avoid the need for a final § 404(c) action. He noted that while the
Agency's regulations make clear that the consultation process is an opportunity for the
project's proponents to propose corrective actions, EPA was willing and prepared to
discuss potential actions that may effectively reduce anticipated environmental and water
quality impacts.
In response, the permittee stated that revisions to the mine plan that Arch Coal, Inc. had
previously proposed would be effective in reducing these potential water quality and
environmental impacts. These actions included improved best management practices,
eliminating two small valley fills at Seng Camp Creek and Pigeonroost Branch, and
increased monitoring. The permittee also indicated that other approaches previously
discussed, such as "sequencing" or "phasing" of valley fills, remained unacceptable to
Arch Coal, Inc., due primarily to economic considerations. In the meeting, the permittee
did not propose new or additional corrective actions for EPA's consideration.
As part of the follow-up from the consultation meeting, on November 22, 2010, the
Assistant Administrator for Water sent a letter to Arch Coal, Inc. indicating that EPA was
prepared to continue discussions regarding corrective actions that effectively reduce
anticipated environmental and water quality impacts. The letter noted that EPA's focus
in evaluating these alternatives would be on whether they would effectively protect the
streams at Pigeonroost Branch and Oldhouse Branch. Noting that the consultation period
was set to expire on November 29, 2010, the letter requested a response as soon as
possible. On November 29, 2010, EPA received notification via email from Hunton &
Williams, LLP, on behalf of Arch Coal, Inc. While this response did not request any
further opportunity for consultation, it did include extensive comments, a Technical
Evaluation Document and supporting information in response to the Recommended
Determination.
EPA reviewed the additional comments, evaluation, and supporting documents provided
by Hunton & Williams and, where necessary, clarified the relevant information and
analysis in the Final Determination. EPA's detailed responses to the issues raised by
Hunton & Williams are contained in Appendix 6. After an EPA Region has submitted a
Recommended Determination to the Assistant Administrator for Water, EPA's
regulations governing the § 404(c) process allow the company to submit information on
corrective actions they intend to take to address the unacceptable adverse effects, but
those regulations do not explicitly provide an additional opportunity to submit comments
on EPA's action. In addition, EPA's Final Determination is an informal adjudication and
unlike the Administrative Procedure Act's (APA) requirements for notice and comment
rulemaking to respond to all significant comments, the APA contains no such
requirement for adjudications. Nonetheless, consistent with the Agency's transparency
goals, EPA has voluntarily chosen to draft responses to many of comments received
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throughout this process, including those comments received on the Recommended
Determination during the consultation process.
In his November 29, 2010 letter to EPA, Colonel Robert Peterson, District Engineer for
the Corps' Huntington District, responded on behalf of LTG Robert Van Antwerp,
Commanding General for the Corps. Colonel Peterson noted that after reviewing the
Recommended Determination, the Corps continued to believe it has no basis to take any
corrective actions regarding DA Permit No. 199800436-3 (Section 10: Coal River) and
that this position is consistent with the Corps' response to EPA Region Ill's September 3,
2009 request that Huntington District suspend, modify or revoke this permit.
In a November 29, 2010 letter to EPA, Randy Huffman, the Secretary of WVDEP,
provided comments on the Recommended Determination. The letter raised concerns
regarding a number of issues in the Recommended Determination including its analysis
of the project's potential effects on water chemistry, the project's likely impacts to
wildlife and the conclusions drawn regarding the proposed compensatory mitigation. In
response to these comments, a number of clarifications have been made to the
information and analysis in the Final Determination and detailed responses to Secretary
Huffman's comments have been included in Appendix 6.
Finally, on December 16, 2010, the USFWS sent a letter to EPA in support of the
Recommended Determination. In the letter, USFWS states that the available scientific
information supports the EPA Region III recommendation and that USFWS concurs with
EPA Region Ill's conclusion that construction of the Spruce No. 1 Mine, as authorized,
would result in unacceptable adverse effects on wildlife. The letter highlights the fact
that the USFWS has consistently expressed concerns regarding the loss of headwater
streams and adjacent riparian and terrestrial habitats associated with the Spruce No. 1
Mine, as well as its likely impacts on downstream water quality, aquatic organisms, and
terrestrial and aquatic wildlife that depend on those resources.
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IV. Site Characteristics and Ecological Functions
The resources that will be impacted by the Spruce No. 1 Mine include Central
Appalachian headwater stream ecosystems in Pigeonroost Branch and Oldhouse Branch.
These waters connect via surface flow directly to Spruce Fork, which in turn flows to the
Little Coal River and eventually to the Coal River. Because of the connectivity between
headwater systems and downstream waters, Spruce Fork, the Little Coal River and the
Coal River would be adversely impacted by discharges to Pigeonroost Branch and
Oldhouse Branch because such discharges would transform these streams into sources
that contribute contaminants to these downstream waters. Accordingly, the
characteristics and functions of the resources that will be adversely impacted by
discharges of dredged or fill material associated with the Spruce No. 1 Mine are best
viewed from the perspective of the ecological functions performed by Appalachian
headwater stream ecosystems and within the context of the larger Headwaters Spruce
Fork sub-watershed and Coal River sub-basin.
Information on the aquatic and terrestrial ecosystem and the predicted impacts of the
project comes from several sources. The Final (October 2005) Interagency Mountaintop
Mining/Valley Fills in Appalachia PEIS represents important inter-agency efforts
designed to inform more environmentally sound decision-making for future permitting of
mountaintop mining and associated valley fills. The PEIS had a geographic focus of 12
million acres encompassing most of eastern Kentucky, southern West Virginia, western
Virginia, and scattered areas of eastern Tennessee; and included the Spruce No. 1 Mine
project area and the Coal River sub-basin. EPA also incorporated information gathered
by the WVDEP, including an assessment of the Coal River sub-basin conducted in 1997,
data collected to support the 2006 Coal River sub-basin total maximum daily load
(TMDL), and WVDEP and nationally available GIS data. EPA also reviewed the 2006
Spruce No.l EIS, and other sources of site-specific data including studies conducted by
EPA scientists and discharge monitoring reports generated by Mingo Logan. In addition,
EPA consulted a wide range of peer reviewed studies and literature. EPA Region III also
communicated with the US Fish and Wildlife Service Elkins Field Office on impacts to
fish and wildlife resources in the project area.
Headwater streams play an important role in the ecosystem far beyond the mere transport
of water from one point to another. In many ways, headwater streams are similar to
capillaries, the smallest blood vessels within the human circulatory system. In the same
way capillaries are critical to the movement of carbon dioxide, oxygen, water and other
essential compounds between the blood and surrounding tissues, small headwater
streams, which make up over two-thirds of the total stream length in a stream network
(Leopold et al. 1964), are critically important to the movement of water, sediments,
organic matter, and nutrients from within their watersheds to downstream environments
(Ensign and Doyle 2006). And just as a loss of blood flow through capillaries can lead to
organ failure, alteration of headwater streams has the potential to affect the ecological
integrity of aquatic ecosystems at broad spatial scales (Freeman et al. 2007). Thus,
headwater streams, as the early stages of the river continuum, provide the most basic and
fundamental building blocks to the remainder of the aquatic environment.
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Appalachian headwaters provide habitat for wildlife including a wide variety of
macroinvertebrates, amphibians, reptiles, birds, fish and mammals. They also are a
significant interface between the river system and the terrestrial environment.
Appalachian headwater streams and their wildlife inhabitants, such as
macroinvertebrates, convert organic matter (e.g., leaf litter) from the surrounding
landscape and transform it into nutrients and energy that can be transported and
consumed by downstream ecological communities. They also play an important role in
storing, retaining and transporting nutrients, organic matter and sediment. In addition
they perform hydrologic functions related to downstream flow regimes, moderating flow
rate and temperature (USEPA 2003, Fischenich 2006).
As authorized, the Spruce No. 1 Mine will bury under valley fills or impact through
construction of sediment ponds nearly all of Oldhouse Branch and its tributaries and a
substantial portion of Pigeonroost Branch and its tributaries. Oldhouse Branch and
Pigeonroost Branch support healthy ecosystems consistent with least-disturbed conditions
in the Coal River sub-basin. As such, they are valuable in and of themselves and for the
functions they perform within the context of the Headwaters Spruce Fork sub-watershed
and the Coal River sub-basin.
IV.A. Watershed and Stream Conditions
The Spruce No. 1 Mine is located within the Headwaters Spruce Fork sub-watershed (12-
digit hydrologic unit code (HUC)) and the Coal River sub-basin (8-digit HUC) (Figure
4). Pigeonroost Branch and Oldhouse Branch flow to Spruce Fork, which in turn flows
into the Little Coal River and then into the Coal River. The Coal River sub-basin
encompasses nearly 891 square miles within West Virginia. Major tributaries within the
Coal River sub-basin include Marsh Fork, Clear Fork, Pond Fork, Spruce Fork, and Little
Coal River. Marsh Fork and Clear Fork join at Whitesville, WV to form the Big Coal
River. Pond Fork and Spruce Fork join at Madison, WV to form the Little Coal River.
The Little Coal and Big Coal Rivers join to form the Coal River at Forks of the Coal,
WV.
The Coal River sub-basin has been impacted by past and present surface mining. Based
upon the National Land Cover Database (NLCD) Retrofit Land Cover Change Product
for 1992-2001 and the WVDEP's Geographic Information System (GIS) mine permit
data, more than 257 past and present surface mining permits have been issued in the Coal
River sub-basin, and the corresponding mines collectively occupy more than 13% of the
land area. Some sub-watersheds in the Coal River sub-basin have more than 55% of the
land occupied by historic, ongoing or permitted surface mines.
Spruce Fork is a fourth order tributary that combines with Pond Fork to form the Little
Coal River, which in turn flows into the Coal River. Spruce Fork is located in the
southwestern portion of the Coal River sub-basin and drains approximately 126.4 square
miles. The dominant land cover in the Headwaters Spruce Fork sub-watershed is forest.
Other significant land cover types include urban/residential and barren/mining land.
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According to the WVDEP Division of Mining and Reclamation permit maps, more than
34 surface mine permits have been issued within the Headwaters Spruce Fork sub-
watershed, and the resulting mines do or will collectively occupy more than 33% of the
land area. Assuming full construction of these projects along with projects associated
with known future surface mining permits, more than 40% of the land area of the sub-
watershed will be occupied by surface mining permits.
Coal River sub-basin (8-digit IIUC)
In 1997, the WVDEP performed its first comprehensive ecological assessment of the
Coal River sub-basin." The WVDEP assessed three major aspects of watershed health:
water quality, habitat condition, and benthic macroinvertebrate community status. The
subsequent report, An Ecological Assessment of the Coal River Watershed (1997),
indicated that sediments, coal mining and inadequate sewage treatment were the major
stressors on streams in this watershed. The WVDEP report also noted the importance
and paucity of reference-quality streams in the watershed, stating
[sjince reference sites reflect least-disturbed conditions, it is vital that the
WVDEP do its part in fulfilling the mission of preserving the high quality of these
rare and important streams. It is also important that the agency make a concerted
6 Report can be found at
http://www.dep.wy.gov/WWE/watershed/wqmonitoring/Doeuments/EeologiealAssessments/EcoAssess C
oal 1997.pdf
28
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effort to find the apparently few remaining streams within the watershed that have
not been significantly impacted by human disturbances.
Further the report indicated that because the sub-basin is becoming increasingly impaired
due to stressors such as mining, there is a need to protect the remaining quality resources,
highlighting the need to "[ljocate and protect the few remaining high quality streams in
the Coal River watershed..." (WVDEP 1997a).
Out of approximately 250 stations sampled by the WVDEP in the Coal River sub-basin
since 1996, only 3 (-1%) are designated as reference sites. One of these three reference
sites is White Oak Branch, which flows into Spruce Fork immediately upstream of
Oldhouse Branch and Pigeonroost Branch. The WVDEP defines reference conditions as
those conditions that "describe the characteristics of waterbody segments least impaired
by human activities and are used to define attainable biological and habitat conditions.
Final selection of reference sites depends on a determination of minimal disturbance,
which is derived from physio-chemical and habitat data collected during the assessment
of the stream sites." Reference sites are used to determine the score that represents the
threshold between impaired and non-impaired sites. As discussed in detail below,
Oldhouse Branch and Pigeonroost Branch are important within the context of the larger
Coal River sub-basin and Headwaters Spruce Fork sub-watershed because, like White
Oak Branch, they represent some of the few stream systems supporting least-disturbed
conditions within those watersheds.
The stream systems that are the subject of this Final Determination, Pigeonroost Branch
and Oldhouse Branch, are high quality stream systems supporting diverse aquatic
communities, as measured by their benthic macroinvertebrate populations (see Section
IV.B.l. and Appendix 2). Macroinvertebrates are used by West Virginia and other states
in the Mid-Atlantic region and across the U.S. to assess the quality of their waters and are
good indicators of stream health. While Pigeonroost Branch and Oldhouse Branch are
not WVDEP-designated reference sites, their quality is comparable to White Oak Branch,
a WVDEP-designated reference site, and their macroinvertebrate communities rank
highly in comparison to other central Appalachian streams and streams throughout the
state of West Virginia (see Section IV.B.l). Accordingly, Oldhouse Branch and
Pigeonroost Branch reflect least-disturbed conditions and represent some of the few
remaining streams within the Coal River sub-basin that have not been significantly
adversely impacted by human disturbances.
Water chemistry data for Pigeonroost Branch and Oldhouse Branch also reflect healthy
streams with little human disturbance. Data from the WVDEP indicate that average
conductivity values for the unmined streams on the Spruce No. 1 Mine project area are
very low.7 Based on the WVDEP dataset (2002-2003), Oldhouse Branch had an average
7 Specific conductance, or conductivity, is a measure of the ability of water to conduct an electrical current.
It is highly dependent on the amount of dissolved solids (such as salt) in the water, and typically measured
as microsiemens per centimeter (|iS/cm). Pure water, such as distilled water, will have a very low specific
conductance, and seawater will have a high specific conductance. Conductivity is an important water
quality measurement because it gives a good idea of the amount of dissolved material in the water.
29
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conductivity level of 90 |iS/cm, which is below that of White Oak Branch, a WVDEP-
designated reference site, which had an average conductivity level of 118 |iS/cm.
Conductivity levels described above in Oldhouse Branch and White Oak Branch indicate
excellent water quality, comparable to reference-quality streams for this ecoregion.
Sulfate concentrations in these streams are also low (28 mg/1 in Oldhouse Branch and 24
mg/1 in White Oak Branch). Pigeonroost Branch had a conductivity level of 199 |iS/cm
and sulfate level of 99 mg/1. The slightly elevated average conductivity and sulfate
values reflect the relatively small amount of historical mining land use in the Pigeonroost
watershed.
During the December 2008 to March 2010 time frame, monitoring reports submitted by
the permittee indicate 15 of the 16 selenium measurements at both Pigeonroost Branch
and Oldhouse Branch were below the detection limit of 0.6 (J,g/L. The single detection of
selenium on Oldhouse Branch was 0.9 [j,g/L during July 2009. The single detection of
selenium on Pigeonroost Branch was 1.9 [j,g/L during August 2009. By way of
comparison, these readings are far below 5 (J,g/L, which is the concentration associated
with West Virginia's chronic water quality criterion for selenium.8 These levels are also
significantly lower than levels documented immediately downstream of adjacent mining
operations (see Section V.D.I.a.).
The relatively high quality of Oldhouse Branch and Pigeonroost Branch also can be
demonstrated by comparison to other streams in the Headwaters Spruce Fork sub-
watershed that have been impacted by mining operations similar to the Spruce No. 1
Mine, located directly northwest of the Spruce No. 1 Mine, on the west side of Spruce
Fork. These streams, in part, are impacted by the Mingo Logan Dal-Tex Mining
Operation (Dal-Tex). Section V.D.2.a. compares the health of the relatively unimpacted
macroinvertebrate communities in Pigeonroost Branch and Oldhouse Branch with the
macroinvertebrate communities in these streams that have been impacted by mining
activity. This comparison demonstrates that Oldhouse Branch and Pigeonroost Branch
support a much healthier and more diverse assemblage of benthic macroinvertebrates
than do the four comparison streams that are impacted by the Dal-Tex operation.
IV.B. Wildlife
The Spruce No. 1 Mine is located in the Central Appalachian ecoregion, which
encompasses most of the central Appalachian coalfields (Bryce et al. 1999) (Figure 5).
This ecoregion has some of the greatest aquatic animal diversity of any area in North
America, especially for species of amphibians, fishes, mollusks, aquatic insects, and
crayfishes. Individual watersheds and peaks in the Appalachian chain, isolated for
millions of years with benign environmental conditions, provided a perfect setting for the
evolution of many unique species of plants and animals. The Nature Conservancy has
identified this region as one of North America's prominent biodiversity hotspots of rarity
and richness (Figure 6) (Stein et al. 2000). Salamanders, in particular, reach some of the
highest levels of North American diversity in the Central Appalachian ecoregion, and are
8 The West Virginia numeric chronic water quality criterion for selenium defined as a four-day average
concentration not to be exceeded more than once every three years
30
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often abundant enough to account for the greatest vertebrate biomass in a given patch of
forest (Stein et ai. 2000). It has also been documented that other specialized wildlife such
as some neotropical migrant birds and forest amphibians rely on the natural headwater
stream conditions and adjacent forest types exhibited by Pigeonroost Branch and
Oldhouse Branch for maintenance of their populations (Stein et al., 2000).
Figure 6. Biodiversity Hotspots in the Continental United States and Hawaii
Map adapted from Precious Heritage: The Status of Biodiversity in the United States.
© The Nature Conservancy http ://www.nature. org/ where we work/northamerica/ states/westvirginia/science/
31
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IV.B.l. Macroinvertebrates
In a body of water, benthic macroinvertebrates are the bottom-dwelling (benthic)
organisms that are large enough to be seen without the aid of microscopes (macro), and
do not have backbones (invertebrate). As stated in EPA's Wadeable Stream Assessment
(EPA 841-B-06-002 December 2006), macroinvertebrates are good indicators of
biological integrity "because of their inherent capacity to integrate the effects of the
stressors to which they are exposed, in combination and over time. Stream
macroinvertebrates generally cannot move very quickly or very far; therefore, they are
affected by, and may recover from, a number of changes in physical conditions (e.g.,
habitat loss), chemical conditions (e.g., excess nutrients), and biological conditions (e.g.,
the presence of invasive or non-native species). Some types of macroinvertebrates are
affected by these conditions more than others." In addition to their role as indicators of
biological integrity or ecosystem health, stream macroinvertebrates, which include
aquatic insects, mollusks and crayfishes, play a vital role in food webs and in the
processing and transfer of energy and nutrients in river systems. Because of these
functions, macroinvertebrates are essential wildlife within the food web, supporting the
health of the entire aquatic ecosystem (Figure 7).
Freshwater macroinvertebrates are a critical component of aquatic and riparian food
webs, and the loss of these taxa can lead to cascading effects on other trophic levels, with
implications for downstream stream ecosystems and sport fisheries. Aquatic
macroinvertebrates feed on algae and leaf litter, and this consumption not only cleans
excess living and nonliving organic material from stream systems, but the processing of
this organic matter makes essential nutrients available to organisms downstream.
Additionally, conversion of plant material into nutrient-rich biomass, in the form of fats
and proteins, makes these invertebrates a major food source for the fish and amphibian
populations within the stream ecosystem. In addition to their role in the aquatic food
web, emerging adult aquatic insects are important prey for foraging terrestrial vertebrates,
including birds, bats, reptiles, amphibians, and small mammals (Baxter et al. 2005).
Many of these terrestrial vertebrates, including ducks and water shrews, have also been
known to consume aquatic insect larvae from the stream before emergence as adults
(Baxter et al. 2005). Macroinvertebrates, therefore, are necessary components of a
functioning aquatic and riparian food web; and they fulfill a critical ecological niche by
delivering nutrients along the stream continuum to both aquatic and terrestrial members
of the food chain.
EPA recognizes macroinvertebrates as wildlife, along with many other organizations,
including the USFWS, USD A Forest Service, The Nature Conservancy, State Natural
Heritage programs, and the West Virginia Division of Natural Resources (WVDNR).
Currently, within the U.S., the USFWS lists 50 species of insects as endangered under the
Endangered Species Act (ESA), and another 10 species as threatened under the ESA.
The State of West Virginia also includes insects, mollusks and crayfishes on its list of
rare, threatened and endangered species, including 12 species of stoneflies, two species of
mayflies, and 73 species of dragonflies and damselflies (West Virginia Natural Heritage
32
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Program 2007). Several States, including West Virginia and Virginia, require a permit to
collect macroinvertebrates for scientific sampling.
Figure 7: Illustration of a simplified stream food web, highlighting the importance of aquatic
macroinvertebrates to other stream and riparian wildlife (adapted from Baxter et al. 2005).
According to Morse et al. (1997), the Central Appalachian ecoregion has many endemic
and rare species of benthic macroinvertebrates in the orders Ephemeroptera (mayflies),
Plecoptera (stoneflies) and Trichoptera (caddisflies).9 This diversity and unique
assemblage has been attributed to the unique geological, climatic, and hydrological
characteristics of this region. The Spruce No. 1 Mine project area has been found to be
very rich in macroinvertebrate species. Data from the PEIS, the Spruce No. 1 EIS and
from the WVDEP monitoring database indicate that high macroinvertebrate diversity
exists in Pigeonroost Branch and Oldhouse Branch. Species diversity boosts ecosystem
productivity, maintains ecosystem functionality, and is typically seen as an indicator of
overall health.
Mayflies are most popularly known among fly-fishermen, where anglers rely on the
seasonal hatches of mayflies that coincide with catching trout and other game fish
species. Not only do trout rely on mayflies and stoneflies, but a group of colorful benthic
fishes known as Darters (Percidae) also feed on mayflies. Darters are an important part of
9 The orders Ephemeroptera, Plecoptera and Trichoptera (EPT taxa) contain pollution sensitive groups and
are used by natural resource agencies such as the WVDEP to assess watershed health.
33
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the fish assemblage and many are hosts for mussel larvae. Five darter species inhabit
Spruce Fork in the immediate vicinity of the project area.
Stoneflies also represent an important group of aquatic insects in the structure and
functioning of stream ecosystems, filling important trophic roles in stream ecosystems,
including detritivory (consumption of dead or decaying organic matter) and predatory
functional feeding group designations. As with mayflies, stoneflies are valued and
imitated by fly-fishermen and serve as an abundant food source for many salamanders
and fishes. Stoneflies are primarily stenothermic, meaning they inhabit cool to cold
waters that provide the higher dissolved oxygen concentrations required for their
survival.
Pigeonroost Branch and Oldhouse Branch support diverse and healthy communities of
benthic macroinvertebrates, which are comparable to WVDEP reference sites.
Macroinvertebrate data collected in Oldhouse Branch and Pigeonroost Branch indicate
that the quality of the mayfly (Ephemeroptera) and stonefly (Plecoptera) communities in
these streams ranks very high in the Central Appalachia ecoregion and statewide. In
1999-2000, EPA collected eighty-four (84) macroinvertebrate genera in riffle complexes
of Pigeonroost Branch and Oldhouse Branch (see Table 11 for a complete taxa list by
genus).10 Collectively, Pigeonroost Branch and Oldhouse Branch contain a high number
of mayfly and stonefly taxa and individuals (Tables 1 and 2). A total of 19 genera of
mayflies and 16 genera of stoneflies have been identified from these headwater streams
indicating these systems offer high water quality and optimal habitat.
Based on a comparison of macroinvertebrate communities, Oldhouse Branch and
Pigeonroost Branch are of comparable quality to White Oak Branch, a neighboring
WVDEP-designated reference site. Using the West Virginia Stream Condition Index
(WVSCI), an assessment method developed for use in West Virginia to help evaluate the
health of benthic macroinvertebrate communities at the family level in wadeable streams
(and used as a measure of the health of stream communities overall), both Oldhouse
Branch and White Oak Branch scored comparably well.11 Oldhouse Branch and White
Oak Branch also scored comparably well at the more sensitive genus level (as opposed to
family), sharing 55 total genera, many of which are intolerant of pollution, indicating a
diverse and healthy aquatic community in Oldhouse Branch similar to the high quality
communities of White Oak Branch. The WVSCI assessment of Pigeonroost Branch
indicates water quality is relatively good despite the presence of localized historic mining
in the watershed. Pigeonroost Branch and White Oak Branch also share many pollution-
intolerant macroinvertebrate genera, indicating that the health of Pigeonroost Branch's
aquatic community is similar.
Oldhouse Branch and Pigeonroost Branch contain 19 genera of mayflies (Table 1). As
many as nine genera of mayflies have been collected in Oldhouse Branch in any one
10 Riffle and pool complexes are considered special aquatic sites under 40 CFR 230.1(d) and as such the
degradation or destruction of these sites is considered to be among the most severe environmental impacts
covered by the § 404(b)(1) Guidelines.
11 For a more detailed discussion of WVSCI, see Section V.B.2.a.iii.
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season-specific sample, with an average of seven genera across multiple samples. This
observation ranks in the 95th percentile of all samples taken in the Central Appalachian
ecoregion (937 samples) by the WVDEP. Out of more than 4000 samples collected
statewide in West Virginia, Oldhouse Branch ranks in the 90th percentile. Pigeonroost
Branch contained eight mayfly genera in a season-specific sample, ranking it in the 90th
percentile in the Central Appalachian ecoregion and 83rd percentile statewide from
among more than 4000 single-sample observations.
Table 1. Presence/absence of mayfly (Ephemeroptera) genera in the permit area (Compiled from
Order
Family
Genus
Oldhouse
Pigeonroost
Ephemeroptera
Ameletidae
Ameletus
X
X
Ephemeroptera
Baetidae
Acentrella
X
X
Ephemeroptera
Baetidae
Baetis
X
X
Ephemeroptera
Baetidae
Diphetor
X
Ephemeroptera
Baetiscidae
Baetisca
X
Ephemeroptera
Ephemerellidae
Attanella
X
Ephemeroptera
Ephemerellidae
Dannella
X
Ephemeroptera
Ephemerellidae
Drunella
X
X
Ephemeroptera
Ephemerellidae
Ephemerella
X
X
Ephemeroptera
Ephemerellidae
Eurylophella
X
X
Ephemeroptera
Ephemeridae
Ephemera
X
X
Ephemeroptera
Heptageniidae
Cinyqmula
X
X
Ephemeroptera
Heptageniidae
Epeorus
X
X
Ephemeroptera
Heptageniidae
Heptaqenia
X
Ephemeroptera
Heptageniidae
Maccaffertium
X
X
Ephemeroptera
Heptageniidae
Stenacron
X
Ephemeroptera
Isonychiidae
Isonychia
X
Ephemeroptera
Leptophlebiidae
Choroterpes
X
Ephemeroptera
Leptophlebiidae
Paraleptophlebia
X
Note: Siphlonurus and Pseudocloeon reported by Sturm Environmental Services are likely erroneous identifications. These genera
have been excluded from this list.
Oldhouse Branch and Pigeonroost Branch contain 11 genera of stoneflies (Table 2). A
single collection in Oldhouse Branch by EPA (Spring 2000) included 9 genera of
stoneflies, which ranks greater than the 98th percentile of all Central Appalachian streams
sampled by the WVDEP (937 samples). This means that only 2% of stream samples in
this ecoregion had more stonefly taxa than Oldhouse Branch within a single sampling
event. Pigeonroost Branch had as many as six stonefly genera in any one season-specific
sample, ranking it at the 83rd percentile among 937 Central Appalachian streams, and
72nd percentile statewide.
Table 2. Presence/absence of stonefly (Plecoptera) genera in the permit area (Compiled from EPA,
Order
Family
Genus
Oldhouse
Pigeonroost
Plecoptera
Capniidae
Allocapnia
X
X
Plecoptera
Chloroperlidae
Alloperla
X
Plecoptera
Chloroperlidae
Haploperla
X
35
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Plecoptera
Chloroperlidae
Sweltsa
X
Plecoptera
Leuctridae
Leuctra
X
X
Plecoptera
Nemouridae
Amphinemura
X
X
Plecoptera
Nemouridae
Ostrocerca
X
X
Plecoptera
Nemouridae
Paranemoura
X
Plecoptera
Peltoperlidae
Peltoperla
X
Plecoptera
Perlidae
Acroneuria
X
X
Plecoptera
Period idae
Isoperla
X
Plecoptera
Period idae
Remenus
X
Plecoptera
Period idae
Yugus
X
Plecoptera
Pteronarcyidae
Pteronarcys
X
X
Plecoptera
Taeniopterygidae
Taenionema
X
Plecoptera
Taeniopterygidae
Taeniopteryx
X
Note: Podmosta, Paraleuctra, Megaleuctra,and Beloneuria reported by Sturm Environmental Services are likely erroneous
identifications. These genera been excluded from this list.
Two Cambarus species of crayfish were collected incidentally during the
macroinvertebrate sampling events. Although crayfish were not specifically sampled for,
a list of crayfish species potentially present within the Headwaters Spruce Fork sub-
watershed can be found in Table 3. Other macroinvertebrates, including mollusks and
flatworms (plathyelminthes), are fairly rare in these systems, as aquatic insects make up
the majority of the macroinvertebrate taxa in these streams.
Table 3: List of potential crayfish species occurring within permit area
Common Crayfish (Cambarus bartonii
bartonii)
Upland Burrowing Crayfish (Cambarus
dubius)
Appalachian Brook Crayfish (Cambarus b.
cavatus)
Big Water Crayfish (Cambarus robustus)
IV.B.2. Salamanders & Other Herpetofauna
There are 46 species of herpetofauna that have been documented as occurring on the
project site or in Logan or Boone County, WV, including a wide variety of salamanders
(Table 4). The Central Appalachian ecoregion contains one of the richest concentrations
of salamander fauna in the world (Petranka 1998, Stein et al. 2000). Nearly ten percent
of global salamander diversity is found within streams in the ecoregion (Green and
Pauley 1987). Salamanders are a diverse and unique form of Appalachian wildlife that
depend on forested headwater habitat and that decline or disappear from surface mined
areas. Many species of salamanders are aquatic or semi-aquatic and utilize headwater
streams at some point in their life histories. Most of the species found in the project area
are water-dependent and belong to the family Plethodontidae, the lungless salamanders,
which require high moisture retaining leaf-litter, dense shade, and cool flowing streams to
survive and reproduce. Typically, salamanders occupy small, high-gradient headwater
streams while fish occur farther downstream.
Salamanders are an important ecological component in the temperate hardwood forests of
the ecoregion and are often the most abundant group of vertebrates in both biomass and
number (Burton and Lykens 1975, Hairston 1987). Ecologically, salamanders are
intimately associated with forest and adjacent aquatic ecosystems acting as predators of
36
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small invertebrates and serving as prey to larger aquatic and terrestrial predators,
including fish, birds, mammals and reptiles (Pough et al. 1987, Davie and Welsh 2004).
Because of their low energy demand, long life span, slow growth rates, and large
abundance, salamanders help to maintain long-term ecosystem function and resilience by
providing abundant biomass and nutrients for top predators in forest and adjacent aquatic
ecosystems (Davie and Welsh 2004). As such, salamanders play a large role in the
cycling of nutrients and transfer between terrestrial and aquatic systems via trophic
pathways (Davie and Welsh 2004). Some species of salamanders split their lives between
forests and headwaters and depend on a close connection to move between the two
(Petranka, 1998). The PEIS identified thirty-one species of salamanders in the West
Virginia portion of the study area. Of these, twenty-five species are known to occupy
mixed mesophytic hardwood forests, like those present within portions of the Spruce No.
1 Mine site.
Table 4: List of documented herpetofauna species occurring in Logan County or Boone County, WV.
Source: Spruce EIS and WV Biological Survey, Marshall University, 2010
Eastern hognose snake (Heterodon platirhinos)*
Five-lined skink (Eumeces fasciatus)*
American toad (Bufo americanus)*
Spring peeper (Hyia crucifer)*
Spring salamander (Gyrinophilus porphyrincus)*
Southern two-lined salamander (Eurycea cirrigera)*
Seal salamander (Desmognathus monticola)*
Northern dusky salamander (Desmognathus
fuscus)*
Mountain dusky salamander (Desmognathus
ochrophaeus)*
Mole salamander (Ambystoma)*
Red-spotted newt (Notophthalmus viridescens)*
Green salamander (Aneides aenus)*
Red salamander (Pseudotriton ruber)*
Mountain Chorus Frog (Pseudacris brachyphona)
Ring-necked Snake (Diodophus punctatus)
Fowler's Toad (Bufo fowieri)
Eastern Wormsnake (Carphophis amoenus)
Mudpuppy (Necturus macuiosus)
Box Turtle (Terrapene Carolina)
Spiny Soft-shelled Turtle (Apaione spinifera)
Timber Rattlesnake (Crotalis horridus)
Eastern Racer (Coluber constrictor)
Northern Slimy Salamander (Plethodon glutinosus)
Gray Treefrog (Hyla versicolor)
Eastern Fence Lizard (Sceloporus undulatus)
Rough Green Snake (Opheodrys aestivus)
North American Bullfrog (Rana catesbeiana)
Northern Two-lined Salamander (Eurycea
bislineata)
Painted Turtle (Chrysemys picta)
Pickerel Frog (Rana palustris)
Snapping Turtle (Chelydra serpentina)
Little Brown Skink (Scincella lateralis)
Common Garter Snake (Thamnophis sirtalis)
Green Frog (Rana clamitans)
Northern Water Snake (Nerodia sipedon)
Ravine Salamander (Plethodon richmondi)
Spotted Salamander (Ambystoma maculatum)
Cope's Gray Treefrog (Hyla chrysoscelis)
Queen Snake (Regina septemvittata)
Coal Skink (Eumeces anthracinus)
Black Mountain Salamander (Desmognathus
welteri)
Marbled Salamander (Ambystoma opacum)
Mud Salamander (Pseudotriton montanus)
Copperhead (Agkistrodon contortix)
Long-tailed Salamander (Eurycea iongicauda)
Four-toed Salamander (Hemidactylium scutatum)
* Documented within the permit area
With respect to areas in or immediately adjacent to the project area, stream-dwelling
salamanders have been surveyed in White Oak Branch (see Appendix B in Patnode et al.
2005). White Oak Branch had good numbers of Northern Dusky (9 adult, 7 larvae),
Appalachian Seal (15 adult, 12 larvae), Northern Spring (4 adult), and Two Lined
salamanders (1 adult and 15 larvae). These samples were recorded from a 12 square-
meter plot that includes dry and wetted portions of the stream channel. Because
Oldhouse Branch and Pigeonroost Branch are very close geographically and have similar
37
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features as White Oak Branch, salamander populations in Pigeonroost Branch and
Oldhouse Branch can be expected to be similar to those in White Oak Branch. Williams
(2003) found mean densities within reference reaches of Pigeonroost Branch, Bend
Branch (another tributary of Spruce Fork), and Ash Fork (a tributary of the Gauley River)
to be more than six salamanders per square meter. In the Williams' study, the majority of
the total salamanders were found in Pigeonroost Branch. Using these numbers from
White Oak Branch and Pigeonroost Branch, EPA estimates aquatic salamanders are
abundant (-5-6 per square meter) along stream channels in Pigeonroost Branch and
Oldhouse Branch.
IV.B.3. Fish
Five fish species have been sampled in Pigeonroost Branch, Oldhouse Branch, and White
Oak Branch, and the assemblages are typical of small streams in the Coal River sub-basin
(Table 5). As fish diversity generally increases with stream order (Meyer et al. 2007), the
low diversity in these streams is typical of low order headwater streams. The fish
populations are good quality, and are not indicative of impairment. Based upon several
sampling efforts, it has been found that Pigeonroost Branch supports a fish assemblage
that includes blacknose dace, creek chub mottled sculpin, stonerollers and smallmouth
bass; and Oldhouse Branch supports a fish assemblage of blacknose dace and creek chub.
The presence of smallmouth bass in Pigeonroost Branch indicates at least seasonal, and
possible spawning use of this stream by smallmouth bass.
Fish species collection in Oldhouse Branch, Pigeonroost Branch and White Oak Branch
has been variable, likely due to a drought that occurred in 1999. It is likely that perennial
reaches of Pigeonroost Branch and Oldhouse Branch were dewatered during this drought
period, and thus provided only ephemeral or intermittent habitat at that time. As
discussed in Stauffer and Ferreri (2002), drought can act as a major perturbation on fish
communities. While fish can recolonize an area after a drought, recolonization rates vary
between fish species, and it may take years before the community resembles that which
was in place before the drought.
As outlined in the PEIS (Stauffer and Ferreri 2002), a study that was conducted by the
U.S. Fish and Wildlife Service in 1998 recorded sculpin (Cottus spp.) in benthic
invertebrate samples from White Oak Branch, as well as many fishes in the pools of
Oldhouse Branch. Subsequent sampling in May 2000 revealed only blacknose dace
(Rhinichthys atratulus) in White Oak Branch, and none in Oldhouse Branch. Stauffer and
Ferreri (2002) attributed this to the effects of the drought in 1999. Sampling for the PEIS
occurred in 1999, the same year as the drought. When sampled for the PEIS, only
blacknose dace and creek chubs were present in Pigeonroost Branch. Similarly, White
Oak Branch was also drought-affected and it contained only blacknose dace at the time of
sampling. No samples were collected in Oldhouse Branch for the PEIS. Blacknose dace
are typically a headwater species that are tolerant of disturbance and can recolonize an
area quickly after a drought. Sculpins (Cottus spp.), however, are bottom-dwelling
species that typically have a restricted home range, which hinders the dispersal rate and
makes it more difficult for them to recolonize an area after a drought.
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Additional fish sampling data were collected in 2008 and 2009 by Decota Consulting and
revealed a fish assemblage similar to that found by the U.S. Fish and Wildlife Service
prior to the drought. Mottled sculpin, as well as sporadic populations of smallmouth bass
and stonerollers were collected in Pigeonroost Branch. Similarly, creek chubs and
mottled sculpin were collected from White Oak Branch. Data from Oldhouse Branch
indicate that blacknose dace and creek chubs are the only species present.
In an analysis of fish community data from Spruce Fork, EPA assessed the small streams
impacted by the Spruce No. 1 Mine and three reaches of Spruce Fork: 1) Upstream of
Seng Camp Creek, 2) Seng Camp Creek to Spruce Laurel, and 3) Downstream of Spruce
Laurel. Other data analyzed included data collected for the PEIS, unpublished data
included in the West Virginia Department of Natural Resources (WVDNR) database
(including USEPA, WVDNR, and consulting firm data), and data from Decota
Consulting supplied to the WVDNR collecting permit program. The data consisted of
samples that were intended to assess community composition and were judged to have
sufficient numbers of individuals to render a fair assessment.
Table 5: List of fish species occurring within Spruce Fork from samples in 2007 and 2010 (WVDNR
unpublished data) (*) represents species also present in Pigeonroost Branch and Oldhouse Branch
within the project area
rock bass (Ambloplites rupestris )
striped shiner (Luxilus chrysocephalus )
central stoneroller (Campostoma anomalum )*
smallmouth bass (Micropterus dolomieu )*
mottled sculpin (Cottus bairdii )*
golden redhorse (Moxostoma erythrurum )
greenside darter (Etheostoma blennioides)
silverjaw minnow (Notropis buccatus )
rainbow darter (Etheostoma caeruleum)
silver shiner (Notropis photogenis )
johnny darter (Etheostoma nigrum )
rosyface shiner (Notropis rubellus)
variegate darter (Etheostoma variatum)
sand shiner (Notropis stramineus)
banded darter (Etheostoma zonale)
mimic shiner (Notropis volucellus )
bigeye chub (Hybopsis amblops )
bluntnose minnow (Pimephales notatus)
northern hog sucker (Hypentelium nigricans )
western blacknose dace (Rhinichthys
obtusus)
American brook lamprey (Lampetra appendix)
brown trout (Salmo trutta)
green sunfish (Lepomis cyanellus)
creek chub (Semotilus atromaculatus )*
bluegill (Lepomis macrochirus)
blacknose dace (Rhinichthys atratulus)*
For the PEIS, Fulk et al. (2003) used the Mid-Atlantic Highlands (MAHA) Index of
Biotic Integrity (IBI), a multi-metric index used to assess biotic health, with some minor
modification, to assess the impacts of mountaintop mining and valley fills to fish
assemblages. Using this same index, the assemblage upstream of Seng Camp Creek
ranged from fair to excellent condition.
The fish assemblage in the main stem of Spruce Fork is in relatively good condition
(Table 5) and is made up of 26 species. Spruce Fork is a locally important rock bass and
smallmouth bass fishery. Rock Bass and Smallmouth Bass are moderately sensitive
gamefish species. While sampling Spruce Fork in 2010, recreational fishing was
observed in the lower reaches of the stream and there was evidence of fishing in the
upper reaches as well. Species present in Spruce Fork upstream and downstream of Seng
Camp Creek are typical of streams of this size within the Coal River sub-basin.
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IV.B.4.
Birds12
Many bird species depend on headwater streams like those of the Spruce Fork for their
survival. The ecotone, or transition area, between terrestrial and aquatic habitats results in
diverse flora and fauna. This phenomenon is particularly noticeable among bird species.
For example, unique avifauna assemblages can be found along the riparian zone of
headwater streams, and are often attracted to headwater streams for breeding areas
because of the diversity of the habitat and the availability of emergent aquatic insects.
Hence Appalachian headwater streams, like Pigeonroost Branch and Oldhouse Branch,
support a wide array of sensitive bird species (Table 6) and are an important natural
habitat for supporting these species' breeding populations.
Table 6: List of potential bird species occurring within permit area
Ruffed Grouse (Bonasa umbellus)
Whip-poor-will (Caprimulgus vociferous)
Red-tailed Hawk (Buteo jamaicensis)
Hairy Woodpecker (Picoides villosus)
Black-billed Cuckoo (Coccyzus
erythropthalmus)
Pileated Woodpecker (Dryocopus pileatus)
Chimney Swift (Chaetura pelagica)
Acadian Flycatcher (Empidonax virescens)
Belted Kingfisher (Megaceryle alcyon)
Yellow-throated Vireo (Vireo flavifrons)
Downy Woodpecker (Picoides pubescens)
Red-eyed Vireo (Vireo olivaceus)
Northern Flicker (Colaptes auratus)
American Crow (Corvus brachyrhynchos)
Eastern Wood-Pewee (Contopus virens)
Carolina Chickadee (Poecile carolinensis)
Eastern Phoebe (Sayornis phoebe)
White-breasted Nuthatch (Sitta carolinensis)
White-eyed Vireo (Vireo griseus)
Blue-gray Gnatcatcher (Polioptila caerulea)
Blue Jay (Cyanocitta cristata)
Wood Thrush (Hylocichla mustelina)
Northern Rough-winged Swallow
(Stelgidopteryx serripennis)
Gray Catbird (Dumetella carolinensis)
Tufted Titmouse (Baeolophus bicolor)
European Starling (Sturnus vulgaris)
Carolina Wren (Thryothorus ludovicianus)
Brewster's Warbler (hybrid) (Vermivora
cyanoptera x V. chrysoptera)
Eastern Bluebird (Sialia sialis)
Northern Parula (Parula Americana)
American Robin (Turdus migratorius)
Yellow-throated Warbler (Dendroica
dominica)
Blue-winged Warbler (Vermivora cyanoptera)
Cerulean Warbler (Dendroica caerulea)
Golden-winged Warbler (Vermivora
chrysoptera)
American Redstart (Setophaga ruticilla)
Yellow Warbler (Dendroica petechia)
Swainson's Warbler (Limnothlypis
swainsonii)
Prairie Warbler (Dendroica discolor)
Louisiana Waterthrush (Parkesia motacilla)
Black-and-white Warbler (Mniotiita varia)
Common Yellowthroat (Geothlypis trichas)
Worm-eating Warbler (Heimitheros
vermivorum)
Yellow-breasted Chat (Icteria virens)
Ovenbird (Seiurus aurocapiiia)
Chipping Sparrow (Spizella passerina)
Kentucky Warbler (Oporornis formosus)
Song Sparrow (Melospiza melodia)
Hooded Warbler (Wiisonia citrina)
Scarlet Tanager (Piranga olivacea)
Eastern Towhee (Pipiio erythropthalmus)
Indigo Bunting (Passerina cyanea)
Field Sparrow (Spizella pusilla)
Brown-headed Cowbird (Molothrus ater)
Northern Cardinal (Cardinalis cardinalis)
House Sparrow (Passer domesticus)
Red-winged Blackbird (Aegelaius phoeniceus)
Northern Bobwhite (Colinus virginianus)
12 Much of the discussion related to avian and bat species is based upon communications with the U.S. Fish
and Wildlife Service.
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American Goldfinch (Spinus tristis)
Yellow-billed Cuckoo (Coccyzus
americanus)
Mourning Dove (Zenaida macroura)
Wild Turkey (Meleagris gallopavo)
Woodcock (Scolopax minor)
Red-bellied Woodpecker (Melanerpes
carolinus)
Among the many migratory birds likely to breed in the project area, there are six species
that the USFWS has designated as Birds of Conservation Concern (BCC) within the
Appalachian Mountains Bird Conservation Region (AMBCR). These include the
Cerulean Warbler (Dendroica caerulea), Kentucky Warbler (Oporornis formosis),
Swainson's Warbler (Lymnothlypis swainsonii), Worm-eating Warbler (Helmitheros
vermivorus), Wood Thrush (Hylocichla mustelina), and the Louisiana Waterthrush
(Seiurus motacilla). The first five of these are also designated as BCC species within the
USFWS's Northeast Region as a whole and nationally (U.S. FWS 2008). The first four
are also considered to be among the 100 most at-risk bird species in North America
(Wells 2007).
The Louisiana Waterthrush, a neotropical migrant song bird, is considered an obligate
headwater riparian songbird (an example of water-dependent wildlife) because its diet is
comprised predominantly of immature and adult aquatic macroinvertebrates found in and
alongside headwater streams and because it builds its nest in the stream banks. Breeding
waterthrushes nest and forage primarily on the ground along medium- to high-gradient,
first- to third-order, clear, perennial headwater streams flowing through closed-canopy
forest. Good water quality is a key component of the species' breeding habitat. By these
criteria, headwater streams like Pigeonroost Branch and Oldhouse Branch that support
healthy macroinvertebrate communities provide excellent foraging and breeding habitat
for species such as the Louisiana Waterthrush.
The West Virginia population of the Louisiana Waterthrush may serve as a source
population within the species' breeding range. The Appalachian Mountain Bird
Conservation Region (AMBCR), which extends from southeastern New York south to
northern Alabama, is thought to support as much as 45 percent of the Louisiana
Waterthrush's breeding population (Mattson and Cooper 2009, Smith, USFWS 2010,
personal communication). West Virginia, the only state that lies entirely within the
AMBCR, encompasses the largest contiguous area of high relative breeding abundance
over the species' entire breeding range, based on North American Breeding Bird Survey
(BBS) data from 1994-2003.
The Louisiana Waterthrush is also an area-sensitive species, requiring undisturbed forest
tracts of at least 865 acres to sustain a population (Robbins, C.S., J.R. Sauer, R.S.
Greenburg, and S. Droege. 1989). The most effective management protocol for the
Louisiana Waterthrush includes the protection of forest tracts and water systems that it
inhabits in its breeding range. The protection of moderate- to high-gradient headwater
streams, which compose 75-80% of stream length in a typical watershed, is therefore of
particular importance for this species.
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Bird species that rely on mature forest habitats and that are on the Audubon watch list as
declining species include the Swainson's Warbler, Kentucky Warbler, and Cerulean
Warbler. According to the West Virginia Breeding Bird Atlas, all of these species are
likely breeders in and around the project area (Buckelew and Hall 1994).
The Cerulean Warbler is considered to be particularly sensitive to landscape-level
changes in habitat, more so than most other North American bird species. A canopy-
foraging insectivorous neotropical migrant songbird, the Cerulean Warbler breeds in
mature deciduous forests with broken, structurally diverse canopies across much of the
eastern United States and winters in middle elevations of the Andes Mountains of
northern South America. Robbins (1989) noted that Cerulean Warblers prefer large-
blocks of mature interior forest habitat with tall trees and a dense upper canopy.
Important among a number of stressors to the Cerulean's breeding populations are the
loss of mature deciduous forest, particularly along stream valleys, and the fragmentation
and increasing isolation of remaining mature deciduous forest. The USFWS has
designated the Cerulean Warbler a Species of Management Concern and a Species of
Conservation Concern throughout its range. It has also been preliminarily designated by
the Appalachian Mountains Joint Venture as a Species of Highest Conservation Priority
within the Appalachian Mountains Bird Conservation Region, which encompasses West
Virginia. The AMBCR is thought to support about 80 percent of the Cerulean Warbler's
entire breeding population and as a comprehensive four-year study of the species'
breeding population shows, West Virginia is an important source population for Cerulean
Warblers (Rosenberg et al.2000).
The Acadian Flycatcher (Empidonax virescens) is another bird species that is primarily
restricted to forested tracts with understory vegetation along small headwater streams.
Acadian flycatchers feed primarily on emergent aquatic insects in riparian forest habitat
like Spruce Fork and its tributaries. In addition, many other neotropical migrant songbird
species are also often attracted to headwater streams for breeding areas because of the
diversity of the habitat and the availability of emergent aquatic insects. Hence
Appalachian headwater streams, like Pigeonroost Branch and Oldhouse Branch, support a
wide array of sensitive bird species and are an important natural habitat for supporting
these species' breeding populations.
IV.B.5. Bats & Other Mammals
Thirteen species of bats are found in West Virginia; and all of these species are
insectivorous and either capture their prey by foraging in flight, catch flying insects from
a perch, or collect insects from plants. Species that have potential to occur in the area of
south-Central West Virginia that encompasses the Spruce No. 1 Mine include the
Northern Bat (Myotis septentrionalis), Big Brown Bat (Eptesicus fuscus), Red Bat
(Lasiurus borealis), Eastern Small-footed Bat (Myotis leibii), Virginia Big-eared Bat
(Corynorhinus townsendii virginianus), Northern Long-eared Bats (Myotis
septentrionalis) and the Indiana Bat (Myotis sodalis) (Table 7).
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Both the Indiana Bat and Virginia Big-eared Bat are listed as endangered under the
Endangered Species Act (ESA). The USFWS was also recently petitioned to list the
Eastern Small-footed Bat and the Northern Long-eared Bat under the ESA. Both of these
species have been documented in the Spruce No. 1 Mine project area. In 2004, five
Eastern Small-footed Bats and 16 Northern Long-eared Bats were captured during mist
net surveys conducted at the Spruce No. 1 Mine site, representing 7.6 and 24.2 percent,
respectively, of all bats captured (U.S. Army Corps of Engineers Huntington District
2006, DEIS Spruce No. 1 Mine. Appendix M).
Indiana Bats are found over most of the eastern half of the United States. Between 1960
and 2001, biologists have documented a 56% population decline in Indiana Bats
(Clawson 2002). Indiana Bats feed solely on emerged aquatic and terrestrial flying
insects. They are habitat generalists and their selection of prey reflects the environment in
which they forage. In a study in the Allegheny Mountains, activity in non-riparian upland
forest and forests in which timber harvest had occurred was low relative to forested
riparian areas (Owen et al. 2004). This evidence suggests that the forested riparian zones
of the project area would be more suitable habitats for Indiana Bat populations than
active or restored mining sites.
Mist net surveys were conducted in the project area in 2000 and 2004, and no federally
listed bats were captured. Although the capture of bats confirms their presence, failure to
catch bats does not absolutely confirm their absence (U.S. Fish and Wildlife Service
2007). The project area occurs roughly halfway between known hibernacula (shelters
used for hibernation) in northeastern Kentucky and southeastern West Virginia. Since
the most recent surveys at the Spruce No. 1 Mine site, maternity roosts have been
documented in central and north-central Boone County within 15 miles of the project
area (WVDNR 2010, USFWS 2005).
Table 7: List of potential mammal species occurring within permit area
hoary bat (Lasiurus cinereus)
Rafinesque's big-eared bat (Corynorhinus
rafinesquii)
eastern small-footed bat (Myotis leibii)
big brown bat (Eptesicus fuscus)
little brown bat (Myotis lucifugus)
silver-haired bat (Lasionycteris noctivagans)
Northern long-eared bat (Myotis septentrionalis)
eastern red bat (Lasiurus borealis)
Eastern pipistrelle bat (Pipistrelle subflavus)
evening bat (Nycticeius humeralis)
Indiana bat (Myotis socialist)
Virginia big-eared bat (Corynorhinus
townsendii virginianus)
tri-colored bat (Perimyotis subflavus)
showshoe hare (Lepus americanus)
woodland jumping mouse (Napaeozapus
insignis)
raccoon (Procyon lotor)
deer mouse (Peromyscus maniculatus)
red fox (Vulpes vulpes)
gray fox (Urocyon cinereoargenteus)
bobcat (Lynxrufus)
mink (Mustela vison)
white-tailed deer (Odocoileus virginianus)
opossum (Didelphis virginiana)
eastern cottontail (Sylvilagus floridana)
muskrat (Ondatra zibethicus)
Appalachian cottontail (Sylvilagus obscures)
black bear (Ursus americanus)
white-footed mouse (Peromyscus leucopus)
striped skunk (Mephitis mephitis)
southern red-backed vole (Clethrionomys
gapperi)
woodchuck (Marmota monax)
meadow vole (Microtus pennsylvanicus)
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masked shrew (Sorex cinereus)
pine vole (Microtus pinetorum)
northern short-tailed shrew (Blarina brevicauda)
eastern chipmunk (Tamias striatus)
hairy-tailed mole (Parascalops breweri)
eastern gray squirrel (Sciurus carolinensis)
least Weasel (Mustela nivalis)
fox squirrel (Sciurus niger)
long-tailed weasel (Mustela frenata)
red squirrel (Tamiasciurus hudsonicus)
wild boar/ feral pig (Sus scrofa)
southern flying squirrel (Glaucomys volans)
american beaver (Castor canadensis)
IV.C. Summary
Based on the foregoing information, EPA finds that Pigeonroost Branch and Oldhouse
Branch contain high quality, important wildlife resources and habitat. EPA bases this
conclusion on several factors including the similarity of macroinvertebrate communities
in Pigeonroost Branch and Oldhouse Branch to the reference-quality White Oak Branch;
the high-ranking mayfly and stonefly diversity, both within the Central Appalachian
ecoregion and statewide; and the use of these streams and associated riparian ecotone by
numerous salamander, bird, and mammal species. These streams support least-disturbed
conditions and represent some of the last remaining high quality stream and riparian
resources within the Headwaters Spruce Fork sub-watershed and the Coal River sub-
basin.
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V. Basis for Final Determination
V.A. Section 404(c) Standards
CWA § 404(c) provides
The Administrator is authorized to prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal site, and he is
authorized to deny or restrict the use of any defined area for specification
(including the withdrawal of specification) as a disposal site, whenever he
determines, after notice and opportunity for public hearings, that the discharge
of such materials into such area will have an unacceptable adverse effect on
municipal water supplies, shellfish beds and fishery areas (including
spawning and breeding areas), wildlife, or recreational areas. Before making
such determination, the Administrator shall consult with the Secretary. The
Administrator shall set forth in writing and make public his findings and his
reasons for making any determination under this subsection, [emphasis added]
While EPA strongly prefers to initiate the § 404(c) process prior to issuance of a permit,
§ 404(c) and EPA's implementing regulations authorize EPA to initiate the § 404(c)
process after a permit has been issued by withdrawing specification of a disposal site (See
40 CFR 231.1(a); see also definition of "withdraw specification," 40 CFR 231.2(a)). In
this case, Pigeonroost Branch and Oldhouse Branch were specified as disposal sites in
DA Permit No. 199800436-3.
§ 404(c) does not define the term "unacceptable adverse effect." EPA's regulations at 40
CFR 231.2(e) define "unacceptable adverse effect" as
Impact on an aquatic or wetland ecosystem which is likely to result in significant
degradation of municipal water supplies or significant loss of or damage to
fisheries, shellfishing, or wildlife habitat or recreation areas. In evaluating the
unacceptability of such impacts, consideration should be given to the relevant
portions of the § 404(b)(1) Guidelines (40 CFR 230). [emphasis added]
V.B. Evaluation of Impacts
To evaluate the impacts of the Spruce No. 1 Mine, EPA has reviewed the DA Permit No.
199800436-3 (Section 10: Coal River), the Spruce No. 1 Mine EIS, the PEIS, peer-
reviewed literature, and available data documenting impacts from similar projects. In
addition, EPA communicated with the US Fish and Wildlife Service on impacts to fish
and wildlife resources in the project area. EPA also has examined impacts caused by the
portion of the Spruce No. 1 Mine that has already been constructed in the Seng Camp
Creek watershed (specifically, Valley Fill 1 A). In addition, EPA reviewed the nearby
Mingo Logan Dal-Tex operation. The data indicate that for the most part, the formations
are repeated from the Dal-Tex mine complex to the proposed Spruce No. 1 mine location
and all of the formations in the Dal-Tex complex that had in the past showed high
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selenium levels and have led to environmental releases are present at the Spruce No. 1
Mine. EPA is, therefore, on sound technical footing to use existing data from the Dal-Tex
complex as a basis to predict what may happen when mining occurs at Spruce No. 1
Mine. This was acknowledged by the Corps in the Spruce No. 1 EIS, which stated "[t]he
past and present impacts to topography, geology, and mineral resources of the previous
mining along the western side of Spruce Fork are similar to the anticipated impacts of the
Spruce No. 1 Mine, as mining is to occur in the same strata."
EPA completed a review of rock cores and corresponding cross sections for the Dal-Tex
mines including the Gut Fork mine, which lies immediately to the west across Spruce
Fork from Spruce No. 1 (Figure 8) and compared them to those from the Spruce No. 1
Mine. This review, which is set forth in Appendix 4, indicates that the formations are
essentially repeated from the Dal-Tex mine complex to the Spruce No. 1 Mine location.
According to the EIS, the same coal beds are to be developed for the Spruce No. 1 Mine
as for the Dal-Tex mine. These coal bed sequences are also similar to those described in
the literature for southern West Virginia coal bed sequences and the geologic column for
the Spruce No. 1 Mine.
Dal-Tex
Mine Complex
Spruce
No. 1 Mine
Dal-Tex M ine Complex
Spruce No. 1 Mine
NHD24k Hydro
Kilometers
Miles
Figure 8. Spruce No. 1 Mine and the Dal-Tex Mine Operation
V.C. Unacceptable Adverse Impacts on Wildlife within the Spruce No. 1 Mine
Project Area
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The unacceptable adverse impacts from the specification of Pigeonroost Branch and
Oldhouse Branch as disposal sites for the discharge of dredged or fill material from the
Spruce No. 1 Mine will occur through several different pathways. This section discusses
the direct impacts to wildlife and wildlife habitat.
Direct impacts will occur as a result of the discharges of dredged or fill material from the
construction of valley fills and sediment ponds that will bury much of Pigeonroost
Branch and Oldhouse Branch, including all wildlife living in these streams, their
tributaries, and associated riparian areas. Burial of Pigeonroost Branch and Oldhouse
Branch also will eliminate habitat for wildlife that depend upon those streams. The loss
of these portions of Pigeonroost Branch and Oldhouse Branch will also adversely impact
wildlife within this watershed that depend on headwater streams for all or part of their
life cycles.
Construction of valley fills and other discharges of dredged or fill material associated
with the Spruce No. 1 Mine into Pigeonroost Branch and Oldhouse Branch will result in a
significant loss of wildlife habitat. The direct effects of the Spruce No. 1 Mine, as
authorized, include permanent placement of fill in approximately 6.6 miles of stream in
Pigeonroost Branch and Oldhouse Branch. Based on stream information from the
National Hydrography Dataset, this loss represents 5.6% of the total stream length in the
Headwaters Spruce Fork sub-watershed. The destruction of 6.6 miles of high quality
stream habitat in a watershed where there is little remaining high quality stream habitat,
and the subsequent loss of many populations of macroinvertebrates, salamanders, fish
and other wildlife dependent upon that aquatic habitat area for survival, including water-
dependent birds, will result in a loss of regional biodiversity and the broader ecosystem
functions these populations provide.
V.C.I. Macroinvertebrates
Construction of valley fills and other discharges of dredged or fill material authorized by
the DA Permit into Pigeonroost Branch and Oldhouse Branch will impact the native
macroinvertebrate community directly through loss of stream habitat as a result of fill.
Because the macroinvertebrate assemblages in these streams represent least-disturbed
conditions within the Coal River sub-basin, the loss of these communities and their
habitat will adversely impact regional native biodiversity.
As set forth in Section IV.B.l. above, benthic macroinvertebrates are diverse and healthy
in the Spruce No. 1 Mine area and represent an important component of the aquatic
community in Pigeonroost Branch and Oldhouse Branch. Also, direct burial of these
populations will likely affect food webs and the processing and transfer of energy and
nutrients downstream. As primary consumers, macroinvertebrates play an important role
in the breakdown of organic matter, allowing for the transport of fine particulate organic
matter to downstream organisms, and converting algal and terrestrial plant matter into
energy (biomass). Invertebrates are at the base of the faunal food web, and thus they also
play a critical role in the delivery of energy and nutrients to downstream reaches (in
aquatic life stages) as well as to upland terrestrial habitats (in winged adult life stages),
most notably through food web pathways.
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V.C.2.
Salamanders & Other Herpetofauna
As stated in IV.B.2., the Central Appalachian ecoregion has one of the highest
concentrations of salamander fauna in the world. Impacts from the activities authorized
will have a significant adverse impact on this form of wildlife located within the project
area. Based on literature values (Williams 2003) for mean densities within reference
reaches of Pigeonroost Branch, Bend Branch (another tributary of Spruce Fork), and Ash
Fork (a tributary of Gauley River) and a 2004 USFWS study in White Oak Branch, EPA
estimates aquatic salamander density in Pigeonroost Branch and Oldhouse Branch at
approximately 5-6 individuals per square meter along stream channels. The loss of this
density over 6.6 miles of stream reflects a substantial loss.
It is not expected that stream salamanders will return to the site due to the burial of their
existing habitat. Gingerich (2009) found no expected stream salamanders inhabiting 3-20
year-old sedimentation ditches (5 out of 5 mines) in West Virginia mountaintop mining
areas. Furthermore the USFWS has indicated that, to its knowledge, it has not been
demonstrated that salamanders return to mined areas at densities similar to those that
occurred prior to mining. USFWS also indicated that while range-wide populations of
common species may not be significantly impacted, the salamander communities in
individual headwater systems behave essentially as isolated populations because there is
limited interaction (immigration and emigration) with communities in adjacent
watersheds (personal communication with Dr. Thomas Pauley, Marshall University and
with Jim Zelenak USFWS West Virginia Field Office).
Because salamanders represent the main vertebrate predator in these headwater streams,
and will be eradicated under the project, EPA believes that a key component of the
aquatic food web will be lost or significantly reduced from the ecosystem within
Pigeonroost Branch and Oldhouse Branch portions of the Spruce No. 1 Mine area.
Additionally, the loss of these salamanders will have broader food web implications, as
they also serve as prey for numerous terrestrial and aquatic species found within the
Spruce No. 1 Mine site, including fish, snakes, birds, mammals, turtles, frogs, crayfish
and other salamanders (Davie and Welsh 2004).
V.C.3. Fish
Pigeonroost Branch and Oldhouse Branch are considered least-disturbed streams within
the Coal River sub-basin, and as such, they have good water quality and support good
quality fish assemblages. While these assemblages have a naturally low diversity,
consistent with low order headwater streams within the Coal River sub-basin, they are
healthy and productive. Construction of valley fills and other discharges of dredged or fill
material authorized by the DA Permit into Pigeonroost Branch and Oldhouse Branch will
lead to the total loss of over six miles of high quality, least-disturbed in-stream habitat
and thus the total loss of five naturally occurring fish populations within the project area.
Fish species that will be directly impacted include blacknose dace, creek chub mottled
sculpin, stonerollers and smallmouth bass. Moreover, the permitted fill will reduce the
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habitat available for fishes within the watershed that use these streams as refugia and
seasonal foraging or spawning habitat, including smallmouth bass. Additionally, species
like the mottled sculpin, a bottom-dwelling species that has a restricted home range, have
a low dispersal rate, which makes it more difficult for them to recolonize an area
following disturbance.
V.C.4. Water-dependent Birds
The Spruce No. 1 Mine will impact the Louisiana Waterthrush, a water-dependent bird
that requires forested headwater streams for foraging on insects and nesting, by
eliminating the headwater areas associated with Pigeonroost Branch and Oldhouse
Branch. The Louisiana Waterthrush has been designated by USFWS as a Bird of
Conservation Concern (BCC) within the Appalachian Mountains Bird Conservation
Region (AMBCR) because of potential impacts from surface coal mining activities.
According to USFWS, the Louisiana Waterthrush is an area-sensitive riparian-obligate
species that nests and forages along headwater streams of intact interior forests. Because
it requires riparian woodland habitat to forage for macroinvertebrates along streams,
approximately 6.6 miles of Louisiana Waterthrush stream and riparian habitat will be lost
due to fill being placed in Pigeonroost Branch and Oldhouse Branch and their tributaries.
For water-dependent birds like the Louisiana Waterthrush, preservation of large tracts of
forest containing headwater streams is needed for the conservation of this species in the
central Appalachians. The Waterthrush is particularly vulnerable to degradation of water
quality and aquatic insect communities (Mattsson and Cooper 2006, Mulvihill et al.
2008).
V.C.5. Summary
Pigeonroost Branch and Oldhouse Branch and their tributaries are some of the last
remaining streams within the Headwaters Spruce Fork sub-watershed and the larger Coal
River sub-basin that represent "least-disturbed" conditions and habitat that is essential for
many species in the watershed. As such, they perform critical hydrologic and biological
functions, support diverse and productive biological communities, contribute to
prevention of further degradation of downstream waters, and play an important role
within the context of the overall Headwaters Spruce Fork sub-watershed and Coal River
sub-basin. Within the streams and riparian areas of the project area, over 84 taxa of
macroinvertebrates are documented to exist, as well as up to 46 species of reptiles and
amphibians, 4 species of crayfish, 5 species of fish and at least one water-dependent bird
species.
Construction of valley fills, sediment ponds, and other discharges authorized by DA
Permit No. 199800436-3 (Section 10: Coal River) will eliminate the headwater stream
ecosystems in Pigeonroost Branch and Oldhouse Branch. The direct impacts to these
headwater stream systems, through burial of these diverse and healthy wildlife
communities and their habitat, will result in unacceptable adverse effects on wildlife,
particularly to macroinvertebrate, amphibian, fish, and water-dependent bird populations.
Through the loss of stream macroinvertebrate and salamander communities, there will be,
49
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in turn, substantial effects to both aquatic and terrestrial vertebrate populations that rely
on these communities as a food source.
In the preamble to EPA's final rules implementing § 404(c), EPA stated "[t]he term
'unacceptable' in EPA's view refers to the significance of the adverse effect e.g. is it a
large impact and is it one the aquatic and wetland ecosystem cannot afford" (44 FR at
58078). The filling in and complete destruction of the 6.6 miles of streams at issue here
is a large impact and clearly adverse to the wildlife that will be buried under thousands of
tons of excess spoil. These adverse impacts are particularly large in context of the
evidence that these streams are some of the last, rare and important high quality streams
in the watershed. That context also leads EPA to the conclusion that this adverse impact
is one that the aquatic ecosystem cannot afford. Based on this information, EPA has
concluded that the discharges of dredged or fill material to Pigeonroost Branch and
Oldhouse Branch as authorized by DA Permit No. 199800436-3 (Section 10: Coal River)
will have unacceptable adverse effects on wildlife in Pigeonroost Branch and Oldhouse
Branch.
V.D. Unacceptable Adverse Impacts on Wildlife Downstream of the
Discharge of Dredged or Fill Material from the Spruce No. 1 Mine
Unacceptable adverse impacts will also occur to wildlife downstream of the footprint of
the fills and sediment ponds. These unacceptable adverse impacts will be caused by
removing Pigeonroost Branch and Oldhouse Branch as sources of freshwater dilution and
converting them to sources of pollution. Water quality downstream of valley fills and in
sediment ditches in mined areas is typically degraded due to high concentrations of
solutes, primarily because it has percolated through mine spoil. Mine spoil, made up of
fragmented mine rocks, has higher rates of rock weathering than bedrock because of its
exposure to air and water, and percolation of water through these exposed rocks leads to
increased concentrations of solutes, including total dissolved solids and selenium, in
downstream receiving waters. In turn, this will adversely affect the delivery of headwater
stream ecosystem functions to downstream waters. Studies have shown a strong
correlation between the construction of valley fills for surface coal mining in Appalachia
and significant adverse impact on downstream macroinvertebrate communities.
EPA believes that the discharges authorized by DA Permit No. 199800436-3 (Section 10:
Coal River) into Pigeonroost Branch and Oldhouse Branch will transform those areas into
sources of contaminants (particularly TDS and selenium) contributing to degradation of
downstream waters. The project as authorized also will create areas of pooled water and
increased conductivity, both of which are among the conditions known to be necessary to
support harmful blooms of golden algae.
V.D.I. Increases in Pollutants Harmful to Wildlife
This section identifies increased loads of selenium and TDS (measured as conductivity)
that are expected to occur as a result of the discharges of coal overburden as authorized
and the unacceptable adverse impacts to wildlife that will occur as a result of these
increases. These impacts to water chemistry are identified because they will adversely
50
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affect the native aquatic and water-dependent wildlife communities in the Spruce Fork
watershed as discussed further below.
V.D.I.a. Selenium
Discharges from the Spruce No. 1 Mine Complex project are expected to increase
selenium loading to the immediate receiving streams and downstream waters. Selenium
(Se) is a naturally occurring chemical element that is an essential micronutrient, but can
also have toxic effects following exposure to excessive amounts. For aquatic animals,
the concentration range between essential nutrient and toxin is very narrow, being only a
few micrograms per liter in water. Adverse impact of selenium residues in aquatic food
chains results not just from the direct toxicity to the organisms themselves, but also from
the dietary source of selenium these organisms contribute to fish and wildlife species in
the food web that feed on them.
Selenium toxicity is primarily manifested as reproductive impairment and birth defects
due to maternal transfer, resulting in embryotoxicity and teratogenicity in egg laying
vertebrates (e.g., fish and ducks). The most sensitive toxicity endpoints in fish larvae are
teratogenic deformities such as skeletal, craniofacial, and fin deformities, and various
forms of edema. Embryo mortality and severe development abnormalities can result in
impaired recruitment of individuals into populations (Chapman et al. 2009). The State of
West Virginia has established a numeric chronic water quality criterion for selenium (5
[j,g/L four-day average not to be exceeded more than once every three years) to protect in-
stream aquatic life. EPA's conclusion that the Spruce 1 Mine as authorized would cause
unacceptable adverse effects on wildlife is not dependent on a conclusion that West
Virginia's water quality standards will be violated at or downstream of the site. Rather,
reference to this water quality standard provides information and context.
In West Virginia, coals that contain the highest selenium concentrations are found in a
region of south-central West Virginia where the Allegheny and Upper Kanawha
Formations of the Middle Pennsylvanian are mined (WVGES 2002). The WVDEP
reports that some of the highest coal selenium concentrations are found in the central
portion of the Coal River sub-basin in the immediate vicinity of the Spruce No. 1 Mine
where significant active mining and selenium impaired streams are located. Selenium is
discharged when selenium-bearing material exposed by surface mining activities comes
in contact with water and contaminated water drains from the mining area to surface
waters. The sediment ponds that are the usual form of water treatment at mining sites
generally are not effective at treating selenium before effluent is discharged from ponds
to downstream waters. The coal beds to be targeted by the Spruce No. 1 Mine include 5-
Block of the Allegheny Group and down to the Upper Stockton coal bed in the eastern
portion of the project area. In the western portion of the project area, the mine plan
includes extraction of coal through the Middle Coalburg coal bed. These coal beds are
rich in Se as evidenced by Se distribution data in the Spruce No. 1 column (DT0417)
provided by the applicant for the NPDES permit application.
51
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Total Maximum Daily Loads to address impairment from elevated concentrations of
selenium have been developed for six other streams affected by mining in the Coal River
sub-basin. These include nearby White Oak Creek, a tributary to the Coal River, the left
Fork of White Oak Creek, Seng Creek, also a tributary to the Coal River; and Casey
Creek, James Creek, and Beaver Pond Branch, all tributaries to Pond Fork. These
elevated levels of selenium demonstrate that the geology in the vicinity of the Spruce No.
1 Mine will release selenium during mining activities. See Appendices 1 and 4 for
further details.
To evaluate the impact of discharges into Pigeonroost Branch and Oldhouse Branch as
authorized by the DA permit, EPA has compared selenium levels in Pigeonroost Branch
and Oldhouse Branch with selenium levels in waters that have been impacted by the
nearby Dal-Tex operation.13 In addition, EPA has reviewed data from a mining outlet
that drains, among other things, discharges from a portion of the Spruce No. 1 Mine that
has been constructed in the Seng Camp Creek watershed (Figure 9).
13 Levels of selenium in other nearby waters that have been impacted by surface coal mining activity and
generally have similar geology also support a prediction that construction of the Spruce No. 1 Mine as
currently authorized will result in elevated levels of selenium in downstream waters.
52
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EPA scientists completed a review of rock cores and corresponding cross sections for the
Dal-Tex mines including the Gut Fork mine compared to the Spruce No. 1 Mine. For the
most part, the formations are repeated from the Dal-Tex mine complex to the Spruce No.
1 Mine location. Table 8 provides a summary of selenium averages and ranges for
Pigeonroost Branch and Oldhouse Branch and streams draining the nearby Dal-Tex
operation (Left Fork Beech Creek, Beech Creek, and Trace Branch). The table also
contains data for White Oak Branch (upstream of Spruce No. 1 Mine) and Seng Camp
Creek (prior to 2007, when the DA permit was issued and filling associated with Spruce
No. 1 commenced in that watershed). Summarizing the data in the following table,
streams draining the nearby Dal-Tex operation have selenium concentrations in excess of
5 ng/L.
Table 8. Selenium Concentrations (ng/L) near Spruce No. 1 Mine
Stream Name
Source and time period of data
Sub-basin
PEIS
(2000-2001)
WVDEP
(2002-2003)
WVDEP
(2005-2007)
Se
(Avg.)
Se
(Range)
Se
(Avg.)
Se
(Range)
Se
(Avg.)
Se
(Range)
Average and Range of Se in Tributaries to Spruce Fork that drain Spruce No. 1 Mine area
White Oak
Branch
Spruce Fork
<3 ND
<5 ND
NS
Oldhouse
Branch
Spruce Fork
<3 ND
<5 ND
NS
Pigeonroost
Branch
Spruce Fork
<3 ND
<5 ND
NS
Seng Camp
Creek
Spruce Fork
NS
<5 ND
NS
Average and Range of Se in Tributaries to Spruce Fork draining Dal-Tex Operation
Beech Creek14
Spruce Fork
7.5
5.6-9.5
6
5.0-9.0
12.3
6.0-22.0
Left Fork of
Beech Creek
Spruce Fork
22.7
15.3-31.1
22
5.0-53.0
NS
Trace Branch
Spruce Fork
NS
NS
7
5.0-10.0
NS
Rockhouse
Branch
Spruce Fork
5.3
3.8-8.0
< 5 ND
< 5 ND
NS
ND: Se not detected. Detection limit shown.
NS: Not sampled. Stream was not sampled for the study shown.
The data from the Dal-Tex mine complex do not indicate any decrease in selenium
concentrations over a period of several years. These data strongly suggest the
construction of valley fills and other discharges of dredged or fill material (e.g.,
associated sediment ponds) from the Spruce No. 1 Mine into Pigeonroost Branch and
14 In the WVDEP study on selenium bioconcentration factors, selenium was also found in fish tissue in
Beech Creek (average 7.55 mg/kg).
53
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Oldhouse Branch will result in elevated levels of selenium in the receiving waters, and
lead to degradation of water quality of the receiving and downstream waters. EPA
believes such degraded water quality will impact wildlife populations in the receiving and
downstream waters, including fish populations.
Graphical trends of selenium concentrations from Discharge Monitoring Report (DMR)
records for January 2007 to June 2010 from three outfalls from the Dal-Tex Mine
operations demonstrate that the discharges from those outfalls consistently exceed 5 |ig/L
(Figures 10, 11 and 12).
WV1011120 Outlet 012 Selenium Trends for Gut Fork Surface
Mine of the Dal-Tex Mine Complex (January 2007 to June 2010)
h-
h-
h-
r-~
r-~
r-~
00
00
00
00
00
00
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CNJ
CNJ
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CNJ
CNJ
CNJ
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CO
LO
r-~
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LO
r-~
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LO
~Minimum Value ¦Average Value MaxN^lue WVWQS (5 ug/l)
Figure 10. Selenium Trends (January 2007 to June 2010) for NPDES Permit WV1011120 - Outlet
012 (Mingo Logan Coal Company's Gut Fork Surface Mine of the Dal-Tex Mine Complex)
54
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WV1004956 Outlet 015 Selenium Trends for Left Fork No. 2
Mine of Dal-Tex Mine Complex (January 2007 to June 2010)
OOt-T-T-T-OOt-T T-T-OO
oooooooooooooooooooooooooooooooooooooooooo
~Minimum Value ¦Average Value Max Value VW WQS
1
Figure 11. Selenium Trends (January 2007 to June 2010) for NPDES Permit WV1004956 - Outlet
015 (Mingo Logan Coal Company's Left Fork No. 2 Mine of the Dal-Tex Mine Complex)
WV1004956 Outlet 001 Selenium Trends for left Fork No. 2 Mine
of Dal-Tex Mine Complex (January 2007 to June 2010)
60
50
40
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3
CO
CO
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CO
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CO
O)
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O)
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LD
O)
CO
LD
O)
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LD
O)
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LO
~ Minimum Value ¦ Average Value Max Value VW WQS (5 ug/L)
Figure 12. Selenium Trends (January 2007 to June 2010) for NPDES Permit WV1004956 - Outlet
001 (Mingo Logan Coal Company's Left Fork No. 2 Mine of the Dal-Tex Mine Complex)
55
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EPA also reviewed data from the portion of the Spruce No. 1 Mine that is already
operational in Seng Camp Creek (Figure 13), including active mining activities in the
Right Fork of the Seng Camp Creek sub-watershed. Recent NPDES discharge
monitoring reports (DMRs), submitted by the permittee, over a 16-month period
(December 2008 to September 2010) show that Outfall 028, which handles, among other
things, discharges from Valley Fill 1 A, is discharging selenium at average monthly
concentrations above 5 \x%[L (Table 9, Figure 13).15 It is also noted that the September
2009 value from Outfall 017 also is elevated. These data support EPA's prediction that
construction of valley fills in Pigeonroost Branch and Oldhouse Branch will result in
discharges of elevated levels of selenium.
Table 9. Total Recoverable Selenium Qig/L) for Outfalls 015,017 and 028 for NPDES Permit
WV1017021, Mingo Logan Coal Company Spruce No. 1 Mine. Note: Shaded areas indicate selenium
concentrations exceeding 5 ng/L.
Site Code
Site Location
Report Date
Min Value
Avg. value
Max value
015
Outlet 015
12/31/2008
0.00
0.00
0.00
017
Outlet 017
12/31/2008
0.00
0.00
0.00
017
Outlet 017
9/30/2009
19.20
19.20
19.20
028
Outlet 028
12/31/2008
5.70
5.70
5.70
028
Outlet 028
1/31/2009
9.80
9.80
9.80
028
Outlet 028
2/28/2009
3.90
3.90
3.90
028
Outlet 028
3/31/2009
0.60
1.00
1.40
028
Outlet 028
4/30/2009
1.70
1.70
1.70
028
Outlet 028
5/31/2009
2.50
2.50
2.50
028
Outlet 028
6/30/2009
3.20
3.30
3.40
028
Outlet 028
8/31/2009
1.25
3.48
5.70
028
Outlet 028
9/30/2009
4.60
6.05
7.50
028
Outlet 028
10/31/2009
3.00
3.00
3.00
028
Outlet 028
11/30/2009
1.40
1.85
2.30
028
Outlet 028
12/31/2009
1.80
1.85
1.90
028
Outlet 028
1/31/2010
3.40
3.80
4.20
028
Outlet 028
2/28/2010
3.80
4.50
5.20
028
Outlet 028
3/31/2010
4.70
6.10
7.50
028
Outlet 028
4/30/2010
3.8
4.40
5.00
028
Outlet 028
5/31/2010
4.70
7.60
10.50
028
Outlet 028
6/30/2010
11.40
11.50
11.60
028
Outlet 028
7/31/2010
6.40
8.50
10.40
028
Outlet 028
8/31/2010
4.80
10.65
14.80
028
Outlet 028
9/30/2010
4.80
9.40
11.00
15 While Outfall 028 receives discharges from other portions of the site, it handles the discharges from
valley fill 1 A. EPA notes that WVDEP sampling from 2002-2003 (prior to construction of Spruce No. 1
Mine in Seng Camp Creek) found selenium levels in Seng Camp Creek to be below detection levels.
56
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Spruce No. 1 Mine Outlet 028
DMR Data (December 2008 to March 2010)
DMR Sampling Date
-Average Se (|jg/L) ¦Max Se (|jg/L)
Figure 13. Selenium concentrations in discharge from outlet 028.
In addition to discharges of elevated concentrations of selenium, the project also will
have the effect of increasing selenium concentrations in downstream waters by removing
Pigeonroost Branch and Oldhouse Branch as sources of dilution that moderate
downstream selenium concentrations. EPA evaluated the in-stream DMR monitoring
data from December 2008 to March 2010 from several ambient monitoring stations
associated with the Spruce No. 1 mine as authorized project: Stations DSCB
(Downstream Seng Camp Creek, located at the mouth of Seng Camp Creek), USCB
(Upstream Seng Camp Creek), USF (Upstream Spruce Fork), DSF (Downstream Spruce
Fork, located downstream of Seng Camp Branch), DPB (downstream Pigeonroost
Branch, at mouth of Pigeonroost Branch) and DOB (Downstream Oldhouse Branch, at
mouth of Oldhouse Branch). As explained below, this analysis shows that Pigeonroost
Branch and Oldhouse Branch are providing dilution that is helping to maintain reduced
selenium concentrations in Spruce Fork.
The Spruce Fork watershed upstream of Pigeonroost Branch and Oldhouse Branch
(Station USF) has average monthly selenium concentrations ranging from 0.9 |ig/L to
10.90 |ig/L (August 2010), with nine monthly average concentrations greater than 5
|ig/L based on the in-stream DMR data for the December 2008 to September 2010 time
period. It should be noted that the last 6 months of available DMR data (April 2010 to
September 2010) for USF had monthly selenium concentrations above the 5 |ig/L
potentially indicating new selenium contamination sources. The downstream Spruce
Fork (DSF) site has concentrations that are significantly lower, and does not have any
average monthly selenium concentrations above 5 |ig/L, with the highest monthly
average selenium concentration during the time period (December 2008 to September
2010) being 2.50 |ig/L (May 2010). This suggests that Pigeonroost Branch and Oldhouse
57
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Branch (along with other tributaries that enter Spruce Fork between the monitoring
stations) provide clean dilution water to the main stem of Spruce Fork. This conclusion
is supported by the very low levels of selenium in Pigeonroost Branch and Oldhouse
Branch. During the same December 2008 to September 2010 time frame, the DMR
reports indicate almost all of the average monthly selenium measurements at both
Pigeonroost Branch and Oldhouse Branch were below the detection limit of 0.6 |ig/L.
The single detection of selenium during the time period in Oldhouse Branch was 0.9 |ig/L
during July 2009 (a maximum value). All monthly average selenium concentrations in
Pigeonroost Branch were below the detection limit from December 2008 through June
2010 except the monthly average in August 2009 which had a value of 1.3 |ig/L
(maximum value was 1.9 |ig/L). However, the monthly average selenium concentrations
for the July 2010 to September 2010 time period documented a developing selenium
problem in Pigeonroost Branch. The monthly average selenium concentration in July
2010 was 2.7 |ig/L, August 2010 was 2.6 |ig/L and September 2010 was 1.4 |ig/L.
By way of example, the average monthly selenium concentration at the USF monitoring
location for the month of April 2010 is reported on the DMR as 10.60 |ig/L. The average
monthly concentration at the DSF location for April 2010 is reported on the DMR as 0.90
|ig/L. For April 2010, the DMR reports average monthly selenium concentrations at
Pigeonroost Branch and Oldhouse Branch as below the detection level of 0.60 |ig/L.
While Pigeonroost Branch and Oldhouse Branch are not the only contributing tributaries
between the USF and DSF stations, this data strongly suggests that they are contributing
dilution.
In summary, water quality from streams and discharges draining both the Dal-Tex Mine
Complex and the current operational portions of the Spruce No. 1 Mine confirm EPA's
concern that the Spruce No. 1 Mine, if constructed as authorized, would contribute
additional loads of selenium to downstream waters at concentrations that, as a monthly
average, will exceed 5 (^g/L.
V.D.I.b. Total Dissolved Solids
To understand the water quality impacts from increased total dissolved solids (TDS), it is
helpful to understand the relationship between salinity, TDS, and specific conductivity.
For purposes of this action, when this document discusses increased conductivity or TDS,
it refers to an increase in salinity in otherwise dilute freshwater, an increase that is
inconsistent with background levels in central Appalachian streams.
Salinity is the amount of dissolved salt in a given body of water. TDS is a measure of the
combined content of all inorganic and organic substances contained in a solution in
molecular, ionized or micro-granular (colloidal) suspended form and is normally reported
in the unit mg/1. Because the majority of TDS in many waters consist primarily of salts,
salinity effectively reflects the amount of TDS in water.
Salinity is often expressed in terms of specific conductivity (hereafter referred to as
conductivity). Conductivity is the ability of a solution to carry an electric current at a
58
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specific temperature (normally 25° C) and is normally reported as microsiemens per
centimeter (|iS/cm). Whereas "salinity" refers to the environmental property that is being
measured, "conductivity" refers to the measure of salinity. Conductivity and TDS both
increase as the concentration of ions in a solution increase and are very strongly
correlated. Conductivity itself is not a pollutant, but is an excellent indicator of the total
concentration of all ions, and is typically reported by state and federal monitoring
agencies because it is an instantaneous measurement that can be collected in situ with a
meter, does not require a laboratory analysis, and is precise and accurate.
Data from the WVDEP indicate that average conductivity values for Pigeonroost Branch
and Oldhouse Branch are very low and are consistent with dilute background conditions
in central Appalachian headwater streams. Construction of valley fills and other
discharges of dredged or fill material from the Spruce No. 1 Mine into Pigeonroost
Branch and Oldhouse Branch will cause an increase in conductivity and TDS in those
receiving waters downstream of such discharges. These discharges will have two effects:
first, they will eliminate Pigeonroost Branch and Oldhouse Branch as sources of
freshwater dilution to downstream waters, including Spruce Fork; and second, they will
transform Pigeonroost Branch and Oldhouse Branch into sources of increased
conductivity and TDS to downstream waters. Sediment ponds, which are a typical form
of water treatment for surface coal mines, appear to be ineffective in removing TDS and
decreasing conductivity. For example, average conductivity and sulfate levels are highly
elevated in other tributaries to Spruce Fork where historical mining has occurred
compared with Pigeonroost Branch and Oldhouse Branch (Table 10) (see Appendix 1).
Table 10. Average conductivity and sulfate values for streams in pro ject area
Stream
Conductivity Values
(jiS/cm)
Sulfate Values (mg/1)
Rockhouse Creek
1012
407
Left Fork of Beech Creek
2426
1019
Beech Creek
1432
557
Trace Branch
971
569
Oldhouse Branch
90
28
Pigeonroost Branch
199
99
Average conductivity and sulfate concentrations in the main stem of Spruce Fork into
which Pigeonroost Branch and Oldhouse Branch flow are elevated to as much as ten
times above natural background levels in Oldhouse Branch. Average conductivity at
almost every monitoring site on the main stem Spruce Fork exceeded 500 |iS/cm. Only
one site had an average conductivity of less than 500 |iS/cm, which was located upstream
of the project area, upstream of Adkins Fork, and southeast of Blair, WV.
EPA expects that these additional conductivity increases will have significant adverse
effects on native aquatic macroinvertebrates and other wildlife that are not tolerant to
increased conductivity. Invertebrate health depends upon an organism's ability to
maintain certain concentrations of ions in their blood and tissues, which they pull from
the water via specialized cells on their gills and body surfaces and lose through
59
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defecation/urination and diffusion. Native headwater invertebrates are adapted to streams
with low dissolved solids (i.e., conductivity). In Central Appalachian surface coal mining,
the ionic mixture emanating from valley fills is fairly predictable, and tends to be alkaline
or circumneutral (pH 5.5-7.4), have highly elevated concentrations of four major ions
(SO4, HCO3, Mg, Ca) and have only slightly elevated concentrations of K, Na, and CI.
Elevated levels of ions can be individually toxic, but mixtures of these ions can be more
toxic than the individual ions, since more than one ion is a potential toxicant. Elevated
ion concentrations can also create a general osmoregulatory stress on organisms that are
adapted to environments with low dissolved solids (i.e., conductivity) (Pond et al. 2008).
Elevated conductivity can have a toxic effect because the ions, regardless of type, can
overwhelm the respiratory system and other physiological processes leading to impaired
breathing, dehydration, and decreased survival or reproduction. Thus, native Appalachian
taxa adapted to naturally dilute streams can be harmed by elevated conductivity for these
physiological reasons. See Appendix 1 for further detail on water quality and wildlife.
EPA modeled post-mining conductivity levels in Spruce Fork downstream of the project
area using a watershed area weighted deterministic model with two post-mining average
(500 and 1000 |iS/cm) and maximum (1000 and 1500 |iS/cm) conductivity values for
Oldhouse Branch, Pigeonroost Branch and Seng Camp Creek. These values likely
underestimate the post-mining conductivity values. For example, when compared to Left
Fork Beech Creek, which is completely mined and filled, the average and maximum
conductivity values are 2425 and 3000 |iS/cm respectively. In Beech Creek, which is
partially mined and filled, the respective average and maximum conductivity values are
1432 and 1776 |iS/cm based on 2002-2003 WVDEP data. In every case, since the
measured average and maximum conductivity levels in Spruce Fork are currently greater
than 500 |iS/cm pre-mining, the modeled post-mining conductivity values are also greater
than 500 |iS/cm, When using the maximum post-mining values identified above, EPA
predicts that average conductivity in Spruce Fork downstream of Seng Camp Creek could
increase from 552 |iS/cm pre-mining to 748 |iS/cm post-mining and maximum
conductivity could increase from 960 |iS/cm pre-mining to 1228 |iS/cm post-mining.
Thus, EPA has determined that that the construction of the Spruce No. 1 Mine will cause
changes to water quality downstream of the mine site, particularly with regard to
selenium and total dissolved solids. The following subsections discuss the adverse
impacts on specific fauna caused by these changes in water quality.
V.D.2. Macroinvertebrates
Construction of valley fills and other discharges of dredged or fill material authorized by
the DA Permit into Pigeonroost Branch and Oldhouse Branch will impact the native
macroinvertebrate community downstream of the fill due to adverse changes in water
quality. These adverse changes, such as increased selenium and conductivity, will result
in subsequent changes in the aquatic community. Sensitive species of mayflies,
stoneflies, and caddisflies currently inhabiting downstream waters will be extirpated
following increasing chemical loading of contaminants, and the remaining taxa will likely
serve as vectors for selenium bioaccumulation in higher trophic levels. Vertebrates
60
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dependent upon macroinvertebrates as a food source, including salamanders, fish, birds
and bats, will be subsequently affected, not only by the bioaccumulation of selenium, but
also by the reduction in prey availability. Additionally, shifts in macroinvertebrate
communities will likely affect important stream ecosystem functions, including organic
matter breakdown (Fritz et al. 2010).
V.D.2.a. Impacts Due to Changes in Water Chemistry
Construction of valley fills and other discharges of dredged or fill material associated
with the Spruce No. 1 Mine into Pigeonroost Branch and Oldhouse Branch will result in
altered and degraded macroinvertebrate communities in downstream environments
(Appendix 2). The downstream effects of mining on macroinvertebrate communities
include non-lethal effects and bioaccumulation of selenium, and extirpation of native,
sensitive taxa. These effects can be significant, and are largely influenced by degraded
water quality conditions downstream of valley fills. If the Spruce No. 1 Mine is
constructed as authorized, these effects will occur in the receiving waters, including the
unfilled portions of Pigeonroost Branch and Oldhouse Branch, and also further
downstream in Spruce Fork. This conclusion is supported by numerous peer-reviewed
studies, as well as empirical data collected and analyzed for the PEIS and permit
application and discussed below.
Although there is little research on the direct effects of increased selenium loading on
aquatic macroinvertebrates, some studies indicate the potential for macroinvertebrate
populations to be adversely affected by selenium, even at concentrations below water
quality thresholds established to protect fish and bird populations. For example, a review
by Debruyn and Chapman (2007) found that the range of selenium water quality
thresholds established to protect higher trophic levels consuming selenium-contaminated
invertebrates could, in some cases, have substantial toxic effects on invertebrates,
including reduced growth, reduced abundance, and mortality. Similarly, this review
estimated that sublethal toxic effects can be associated with a range of water
concentrations of 1-30 jag Se/L, which is consistent with experimental studies that found
that some macroinvertebrate taxa exhibited approximately 50% reduction in abundance at
Se water concentrations in the range of 5-10 jag Se/L. The remaining individuals that do
survive accumulate the contaminants, thus exposing higher trophic levels (e.g., fish and
amphibians) to concentrations that have the potential to cause population-level effects.
Both the lethal and non-lethal effects on macroinvertebrate prey will result in significant
impacts to higher trophic level organisms and food webs in the downstream ecosystem.
As outlined in Section V.D.I.b above, construction of valley fills and other discharges
from the Spruce No. 1 Mine into Pigeonroost Branch and Oldhouse Branch will cause an
increase in salinity and TDS in receiving waters immediately downstream of valley fills.
Bryant et al. (2002) found substantially higher average measurements of alkalinity,
calcium, sulfate and total dissolved solids in nearby streams affected by mining than in
streams unaffected by mining streams in the Spruce No. 1 project area. Increased
concentrations of TDS can have significant implications for native wildlife. While many
61
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of the elements that comprise mineral salts are essential nutrients, aquatic organisms are
adapted to specific ranges of salinity and experience toxic effects from excess salinity.
Due to the sensitivity of native macroinvertebrate wildlife to elevated and increasing
levels of conductivity, the predicted levels of these contaminants will have significant
adverse effects on these biological communities. While changes in community
composition downstream of mined sites are likely due to a combination of factors, it is
likely that water quality changes, including water quality degradation from valley fills
and in-stream mining impoundments, are the primary cause of aquatic life impacts below
valley fills (Appendix 2). EPA's draft report, A Field-Based Aquatic Life Benchmark for
Conductivity in Central Appalachian Streams (USEPA 2010a), also recognizes stream
aquatic life impacts associated with conductivity, concluding that impacts to the
biological community can occur at conductivity levels as low as 300 [j,S/cm.
The effects of mining on macroinvertebrate communities are evident when comparing the
least-disturbed streams in the project area (Oldhouse Branch and Pigeonroost Branch)
with nearby streams directly affected by valley fills (Beech Creek and Left Fork Beech
Creek). Collectively, Pigeonroost Branch and Oldhouse Branch support 84 unique
macroinvertebrate genera, in contrast with Beech Creek and Left Fork Beech Creek,
which only support 56 unique macroinvertebrate genera. Additionally, many
Ephemeroptera (mayfly), Plecoptera (stonefly) and Trichoptera (caddisfly) genera
(collectively known as EPT taxa)16 were extirpated from these nearby streams affected by
mining (Table 11). Pigeonroost Branch and Oldhouse Branch support 42 EPT genera (14
mayfly genera, 12 stonefly genera and 14 caddisfly genera), in contrast with Beech Creek
and Left Fork Beech Creek, which only support 12 EPT genera (2 mayfly genera, 3
stonefly genera, and 7 caddisfly genera).
At Beech Fork and Left Fork Beech Fork, in addition to the presence of relatively
pollution-tolerant mayfly and stonefly genera, there were also several tolerant taxa that
were not found in the Spruce project area. These taxa, which are indicative of altered
environmental conditions (i.e., atypical of Appalachian headwater streams), include
highly tolerant snails (Lymnaeidae, Physella, Helisoma), as well as other tolerant beetles
and fly larvae (Table 11). Similar patterns of taxonomic loss were observed at 20 other
West Virginia sites downstream of valley fills when conductivity was greater than 500
|j,S/cm (Pond et al. 2008) and in the eastern Kentucky coalfields (Pond 2010), and it is
likely that these effects on wildlife taxa and their habitat will occur following the Spruce
No. 1 Mine operations (Appendix 2).
16 EPA focused on genus-level taxa richness (i.e., the number of genera) of Ephemeroptera (mayflies),
Plecoptera (stoneflies) and Trichoptera (caddisflies) taxa (EPT taxa), as it can be used to detect shifts in
community composition and extirpation of sensitive taxa (Appendix A2.7).
62
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Table 11. Comparison of macroinvertebrate taxa identified on the Spruce No. 1 Mine site and Dal-
Tex site.
Oldhouse
+Pigeonroost
Beech + Left
Fork Beech
Order
Family
Genus
Spruce No. 1
Mine
Dal-Tex
Mine
Oligochaeta
Oligochaeta
Oligochaeta
X
X
Nematoda
Nematoda
Nematoda
X
Proseriataoela
Plagiostomidae
Hydrolimax
X
Tricladida
Planariidae
Planariidae
X
Basommatophora
Lymnaeidae
Lymnaeidae
X
Basommatophora
Physidae
Physella
X
Basommatophora
Planorbidae
Helisoma
X
Coleoptera
Dryopidae
Helichus
X
Coleoptera
Elmidae
Dubiraphia
X
Coleoptera
Elmidae
Macronychus
X
Coleoptera
Elmidae
Microcylloepus
X
Coleoptera
Elmidae
Optioservus
X
X
Coleoptera
Elmidae
Oulimnius
X
X
Coleoptera
Psephenidae
Ectopria
X
Coleoptera
Psephenidae
Psephenus
X
X
Decapoda
Cambaridae
Cambarus
X
Diptera
Ceratopogonidae
Atrichopoqon
X
Diptera
Ceratopogonidae
Bezzia/Palpomyia
X
X
Diptera
Ceratopogonidae
Dasyhelea
X
X
Diptera
Ch
ronomidae
Acricotopus
X
Diptera
Ch
ronomidae
Chaetocladius
X
X
Diptera
Ch
ronomidae
Corynoneura
X
X
Diptera
Ch
ronomidae
Cricotopus
X
X
Diptera
Ch
ronomidae
Diamesa
X
X
Diptera
Ch
ronomidae
Eukiefferiella
X
X
Diptera
Ch
ronomidae
Metriocnemus
X
Diptera
Ch
ronomidae
Micropsectra
X
X
Diptera
Ch
ronomidae
Microtendipes
X
Diptera
Ch
ronomidae
Orthocladius
X
X
Diptera
Ch
ronomidae
Parachaetocladius
X
Diptera
Ch
ronomidae
Parametriocnemus
X
X
Diptera
Ch
ronomidae
Paraphaenocladius
X
Diptera
Ch
ronomidae
Paratanytarsus
X
Diptera
Ch
ronomidae
Polypedilum
X
X
Diptera
Ch
ronomidae
Rheotanytarsus
X
X
Diptera
Ch
ronomidae
Smittia
X
Diptera
Ch
ronomidae
Stempellinella
X
Diptera
Ch
ronomidae
Stenochironomus
X
Diptera
Ch
ronomidae
Stilocladius
X
Diptera
Ch
ronomidae
Sympotthastia
X
Diptera
Ch
ronomidae
Tanytarsus
X
Diptera
Ch
ronomidae
Thienemanniella
X
Diptera
Ch
ronomidae
Thienemannimyia
X
X
Diptera
Ch
ronomidae
Tvetenia
X
X
Diptera
Ch
ronomidae
Zavrelimyia
X
Diptera
Empididae
Chelifera/Metachela
X
X
Diptera
Empididae
Clinocera
X
Diptera
Empididae
Hemerodromia
X
Diptera
Simuliidae
Prosimulium
X
Diptera
Simuliidae
Simulium
X
X
63
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Diptera
Tabanidae
Tabanidae
X
Diptera
Tipul
dae
Antocha
X
Diptera
Tipul
dae
Cryptolabis
X
Diptera
Tipul
dae
Dicranota
X
Diptera
Tipul
dae
Hexatoma
X
Diptera
Tipul
dae
Limnophila
X
Diptera
Tipul
dae
Limonia
X
X
Diptera
Tipul
dae
Pseudolimnophila
X
Diptera
Tipul
dae
Tipula
X
X
Ephemeroptera
Ameletidae
Ameletus
X
Ephemeroptera
Baetidae
Acentrella
X
Ephemeroptera
Baetidae
Baetis
X
X
Ephemeroptera
Baetiscidae
Baetisca
X
Ephemeroptera
Ephemerellidae
Drunella
X
Ephemeroptera
Ephemerellidae
Ephemerella
X
Ephemeroptera
Ephemerellidae
Eurylophella
X
Ephemeroptera
Ephemeridae
Ephemera
X
Ephemeroptera
Heptageniidae
Cinygmula
X
Ephemeroptera
Heptageniidae
Epeorus
X
Ephemeroptera
Heptageniidae
Stenacron
X
Ephemeroptera
Heptageniidae
Maccaffertium/
Stenonema
X
Ephemeroptera
Isonychiidae
Isonychia
X
X
Ephemeroptera
Leptophlebiidae
Paraleptophlebia
X
Megaloptera
Corydalidae
Corydalus
X
Megaloptera
Corydalidae
Niqronia
X
X
Odonata
Aeshnidae
Boyeria
X
Odonata
Gomphidae
Lanthus
X
X
Plecoptera
Capniidae
Capniidae
X
Plecoptera
Chloroperlidae
Haploperla
X
Plecoptera
Leuctridae
Leuctra
X
Plecoptera
Nemouridae
Amphinemura
X
X
Plecoptera
Nemouridae
Ostrocerca
X
Plecoptera
Nemouridae
Prostoia
X
Plecoptera
Peltoperlidae
Peltoperla
X
Plecoptera
Perlidae
Acroneuria
X
Plecoptera
Perlodidae
Isoperla
X
Plecoptera
Perlodidae
Remenus
X
Plecoptera
Perlodidae
Yugus
X
Plecoptera
Pteronarcyidae
Pteronarcys
X
Plecoptera
Taeniopterygidae
Taenionema
X
Plecoptera
Taeniopterygidae
Taeniopteryx
X
X
Trichoptera
Glossosomatidae
Aqapetus
X
Trichoptera
Glossosomatidae
Glossosoma
X
T richoptera
Goeridae
Goera
X
T richoptera
Hydropsychidae
Ceratopsyche
X
T richoptera
Hydropsychidae
Cheumatopsyche
X
X
T richoptera
Hydropsychidae
Diplectrona
X
X
T richoptera
Hydropsychidae
Hydropsyche
X
X
T richoptera
Hydroptilidae
Hydroptila
X
T richoptera
Limnephilidae
Pycnopsyche/
Hydatophylax
X
T richoptera
Philopotamidae
Chimarra
X
X
T richoptera
Philopotamidae
Dolophilodes
X
T richoptera
Polycentropodidae
Polycentropus
X
T richoptera
Psychomyiidae
Psychomyia
X
X
Trichoptera
Rhyacophilidae
Rhyacophila
X
X
64
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T richoptera
Uenoidae
Neophylax
X
Total Distinct Taxa
84
56
Total EPT Taxa
42
12
In order to support the determination that unacceptable adverse effects will occur
downstream, EPA applied an accepted and peer reviewed approach, called an
Observed/Expected index (O/E), where O/E ratios represent the number of the expected
taxa that are observed in a sample (O), compared to the number of taxa expected in the
sample (E), after predicting the probability that a sample site is a member of one or more
fixed sets of reference site types (Hawkins 2006a, Van Sickle 2005) (Figure 14). This
method uses a suite of regional reference sites to determine the number of expected taxa;
and deviation from this number can be used to identify an degradation threshold (see
Appendix 2 for detailed methods and results). A site that is a perfect match to the
reference site O/E scores will score 1.0, while downward deviation from 1.0 indicates
loss of expected taxa compared to regional reference (e.g., a score of 0.50 indicates a
50% loss of the expected taxa). Upward deviation (greater than 1.0) indicates that more
taxa were collected than expected. EPA chose the 5th percentile of reference site O/E
scores as a degradation threshold to correspond to the WVDEP's bioassessment threshold
for aquatic life use impairment. This O/E 5th percentile was 0.64, indicating a loss of
36% of expected taxa would indicate degradation of the in-stream biota.
Based upon the O/E index, EPA found that the macroinvertebrate assemblages in
Pigeonroost Branch, Oldhouse Branch and the upstream White Oak Branch are
comparable to the regional reference sites, while nearby streams affected by valley fills
(Dal-Tex sites) were well below the degradation threshold (O/E less than 0.64) (Table
12). Mean scores for the Dal-Tex sites were 0.26 in the summer and 0.32 in the spring,
indicating they support, on average, 74% and 68% less taxa, respectively, than the
regional reference sites. Thus, past mining has led to the estimated extirpation of-70%
of the native expected taxa in the adjacent Dal-Tex Mine operation.
O versus E as a Measure of Biological Integrity
the set of native taxa expected at a
site that are actually observed.
Ethe set of native taxa expected to
occur at a site in the absence of
human-caused stress.
The deviation of O from E is a measure of compositional
similarity and thus a community-level measure of biological
integrity.
o
Figure 14. Measure of biological integrity; Observed vs. Expected (C.P. Hawkins, Utah State Univ.)
Extirpation of macroinvertebrate taxa, documented by the O/E index, is largely caused by
water quality degradation. Using the regional reference sites and genus-level data from
Pond et al. (2008), O/E scores showed a negative correlation with conductivity (R2=0.63).
Water quality degradation caused by elevated conductivity explained more than twice the
65
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variance in 0/E scores than did Rapid Bioassessment Protocol (RBP) habitat scores
(R2=0.28), confirming that conductivity is an excellent predictor of native taxa loss from
Appalachian streams. Sediment deposition, substrate embeddedness, channel alteration,
riparian zone width, pH, or temperature had no significant influence on O/E scores (see
Appendix 2).
Table 12. Summary of West Virginia O/E null model results for the Spruce No. 1 Mine area. The
biological degradation threshold is 0.64 (corresponding to the 5th percentile of WVDEP reference site
distributions).
Mean (Standard Deviation) O/E
Spruce No. 1 Mine
Dal-Tex
Pigeonroost Branch, Oldhouse
Branch, White Oak Branch
Beech Creek, Left
Fork Beech Creek
Rockhouse
Spring
0.98 (0.20); n=9
0.26 (0.06); n=5
0.31 (0.10); n=3
Summer
0.85 (0.15); n=2
0.32 (0.08); n=2
0.38 (0.08); n=2
To provide additional support that aquatic life use degradation occur downstream of
valley fills and that these impairments result from water quality degradation, streams that
are affected by mining were compared to streams that are not affected by mining using
the West Virginia Stream Condition Index (WVSCI), WVDEP's family-level multi
metric index (see Appendix 2 for detailed methods and results). Currently, the WVDEP
uses WVSCI index scores greater than 68 to indicate streams fully supportive of the
aquatic life use.17 Streams unaffected by mining within and near the project area,
including White Oak Branch, Oldhouse Branch and Pigeonroost Branch, generally scored
above the 68 threshold index value, indicating they are high quality streams that fully
support the aquatic life use (see Appendix 2). The streams located in the historically
mountaintop mined areas with valley fills located nearby (Rockhouse Branch, Beech
Creek, and the Left Fork of Beech Creek) generally scored below the 68 threshold index
value, indicating they do not fully support aquatic life use.
In Pond et al. (2008) elevated conductivity greater than 500 |iS/cm caused by alkaline
mine effluents was strongly associated with high probability of degradation of native
biota, and 17 of the 20 mined study sites (85%) did not fully support aquatic life, based
upon the family-level WVSCI index. In addition, WVDEP ambient monitoring
macroinvertebrate data from the Cumberland Mountains of the Central Appalachians
subecoregion, the subecoregion where the project is located, were analyzed to determine
the potential effects of elevated conductivity levels on aquatic life use. When
conductivity levels were elevated above 500 |iS/cm, the analysis showed that a majority
of the sites were not fully supportive of aquatic life use, even when accounting for the
possible confounding effects of acidic pH and habitat degradation. For example, after
removing low pH sites, only 100 sites out of 417 sites attained WVSCI scores greater
than 68 when conductivity levels were greater than 500 |iS/cm (76% of the sites reflected
WVSCI scores less than 68). When the potential confounding effect of habitat
17 This score represents the lower 5th percentile of the range of scores of the 107 reference site scores used
in the 2000 report (Gerritsen et al. 2000). As noted elsewhere, in its 2008 Section 303(d) List, WVDEP
identified a WVSCI score of 68 as the lowest score at which a waterbody was considered to "fully support"
aquatic life. A score of less than 68 indicates degradation of the aquatic life use.
66
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degradation was completely removed (this subset includes only sites with Rapid
Bioassessment Protocol habitat scores greater than 140, indicating reference quality
habitat), 62% of the sites still had WVSCI scores less than 68.
In addition to changes in community structure and loss of sensitive taxa, functional
feeding group composition (based on WVDEP group designations) is also significantly
altered below mountaintop mining operations with valley fills. An analysis of functional
feeding groups revealed categorical dose-response for unmined, low (<500), medium
(500-1000), and high (>1000) conductivity (Table 13; data from Pond et al. 2008).
Functional feeding group relative abundance of scrapers (herbivorous grazers) and
functional feeding group richness for scrapers, shredders, and collector-gatherers was
higher at unmined sites and declined with increasing conductivity category, while the
relative abundance of collector-filterers increased. In a comparison of sites with
conductivity <500 |iS/cm (n=17) to sites with conductivity >500 |iS/cm (n=20), there
were significant alterations of trophic composition, with increased %collector-filterer
abundance and declines in genus-level scraper richness, shredder richness, collector-
gatherer richness and %scraper abundance at sites with higher conductivity (Table 13).
Further, several functional feeding group metrics were strongly correlated to specific
conductance (Table 13).
Table 13. Mean richness and relative abundance of functional feeding groups among conductivity
categories (data from Pond et al. 2008). Additional comparisons of sites (<500 jiS/cm and >500
jiS/cm) include P-values for Mann-Whitney U-tests shown. Spearman correlations of FFGs with
FFG (Richness)
Unmined
Low
Medium
High
Combined
Unmined
+ Mined
(low)
Combined
Mined
(Medium +
High)
Mann-
Whitney
U-test
P
Correlation
to
Conductivity:
Spearman r
# Scraper Genera
7.4
5.0
2.1
0.9
6.4
1.4
333.5
0.000
-0.85
# Shredder Genera
4.5
3.4
2.0
2.0
4.1
2.6
244.0
0.021
-0.50
# Coil-Gatherer Genera
10.5
9.1
7.3
7.3
9.9
7.9
240.0
0.031
-0.48
# Coll-Filterer Genera
3.0
4.7
3.6
3.6
3.7
3.9
143.0
0.389
0.10
# Predator Genera
7.2
4.7
3.7
3.7
6.2
4.3
232.0
0.057
-0.44
# Piercer-Herb Genera
0.1
0.0
0.0
0.1
0.1
0.1
171.5
0.907
-0.03
FFG (Rel. Abundance)
Unmined
Low
Medium
High
Combined
Unmined
+Mined
(low)
Com bined
Mined
(Medium +
High)
Mann-
Whitney
U-test
P
Correlation
to
Conductivity:
Spearman r
% Scraper
29.1
7.6
9.1
1.6
18.4
5.4
304.0
0.000
-0.79
% Shredder
24.8
43.0
28.8
19.3
33.9
24.1
224.5
0.097
-0.23
% Coil-Gatherer
29.5
28.5
32.3
33.7
29.0
33.0
149.0
0.437
0.04
% Coll-Filterer
7.7
14.6
17.5
41.2
11.2
29.4
78.5
0.005
0.60
% Predator
8.4
6.0
11.9
3.9
7.2
7.9
199.0
0.376
-0.40
% Piercer-Herbivores
0.1
0.0
0.0
0.2
0.1
0.1
167.0
0.920
0.01
Construction of valley fills, sediment ponds, and other discharges of dredged or fill
material into Pigeonroost Branch and Oldhouse Branch as authorized by the DA permit
67
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will contribute increased loadings of TDS to downstream receiving waters within the
Headwaters Spruce Fork sub-watershed and Coal River sub-basin, further exacerbating
biological impairments. The WVDEP data from the Spruce Fork, Pond Fork and Little
Coal River watersheds indicate that nearby streams affected by mines, as well as the main
stem of Spruce Fork, Pond Fork and the Little Coal River currently do not fully support
aquatic life use (see Appendix 1). The adverse impacts in the main stem of Spruce Fork,
Pond Fork, and the Little Coal are likely due to a combination of stressors, including
mining and residential stressors (WVDEP 1997a). Because these downstream waters
have existing biological impairments, increased loading of TDS from this project will
further reduce the ability of these waters to support aquatic life use.
V.D.2.b. Food Web Effects of Altered Macroinvertebrate Communities
The direct burial of streams and subsequent water quality changes downstream associated
with the authorized project will significantly alter macroinvertebrate assemblages, as well
as the overall abundance and productivity of macroinvertebrate communities; and thus,
through cascading food web effects, likely adversely impact vertebrate species which
depend upon the macroinvertebrate community within these streams for nourishment
(Figure 7). Project impacts on these aquatic invertebrates will likely alter in-stream
functions (e.g., organic matter processing and transport, and nutrient cycling and
transport), in part because research has shown that processing rates of terrestrial plant
material inputs are reduced in mine-affected streams with altered macroinvertebrate
assemblages (Fritz et al. 2010). Also, it is likely that impacts to aquatic invertebrates will
have adverse effects on animals dependent on insect larvae and emergent adults as prey,
including fish, amphibians, bats, birds, reptiles and small mammals (Baxter et al. 2005).
In particular, mayflies (Ephemeroptera) tend to be a preferred prey item for juvenile
Smallmouth Bass (Easton et al. 1996), an important sport fish in Spruce Fork, and
anticipated declines in mayfly immediately downstream of valley fills will have adverse
effects on this sport fishery, as reduced mayfly populations will be present and there will
be a reduced pool of colonizers to repopulate areas where populations were impacted.
In addition, research has shown that selenium often has non-lethal effects on
macroinvertebrates, allowing them to act as vectors in the movement of selenium to
higher levels of the food chain.
V.D.3. Salamanders & Other Herpetofauna
Impacts from the activities authorized will have a significant adverse impact on
salamanders and other herpetofauna downstream of the project area due to changes in
water chemistry, as well as subsequent food web effects. Adverse impacts to
salamanders as a result of construction of valley fills and other discharges authorized by
the DA Permit into Pigeonroost Branch and Oldhouse Branch will not be localized to the
area to be filled. Because construction of the valley fills and other discharges will
increase conductivity and selenium levels in the downstream receiving waters (see
Section V.D. 1.), salamanders that are not directly buried and killed beneath the fills will
also be impacted; directly via exposure to these contaminants and indirectly via impacts
68
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of contaminants on food sources and reduced prey abundances. Studies have
documented elevated selenium levels in salamander tissue downstream of valley fills and
that salamander assemblages were more likely to be impaired downstream of valley fills
than in other locations (Patnode, et al. 2005). Such impacts will occur as far downstream
as elevated conductivity, selenium or other contaminants persist, and to affect any
salamanders that spend some part of their life in the aquatic environment or in
immediately adjacent riparian terrestrial habitats.
Furthermore, as set forth in Section V.D.4.a., the construction of valley fills, sediment
ponds, and other discharges into Pigeonroost Branch and Oldhouse Branch will create
conditions considered favorable to the growth of golden algae (Prymnesium parvum),
which can produce a toxin that is highly toxic to aquatic life and was associated with an
extensive aquatic life kill of both fish and lungless salamanders in Dunkard Creek in
West Virginia in September 2009.
V.D.4. Fish
The fish assemblages in Pigeonroost Branch and Oldhouse Branch downstream of the
project area, as well as in Spruce Fork, are neither impaired nor representative of pristine
or reference condition. Basin size is a particularly important factor when assessing the
potential effects of valley fills on streams because small streams (less than 10 square
kilometer) have shown effects to the fish assemblage while larger streams have not (e.g.,
Fulk et al. 2003). Nevertheless, Fulk et al. (2003) found significant differences in total
IBI scores between streams that are affected by mines and those that are not. This
difference was attributed to changes in cyprinid species richness and the percent of the
assemblage composed of benthic invertebrate feeders.
Studies have shown that mountaintop mining for coal and construction of valley fills has
had a harmful effect on the composition of stream fish communities (Fulk et al., 2003,
Stauffer and Ferreri, 2002). Comparison of streams without mining in the watershed and
sites downstream of valley fills in Kentucky and West Virginia indicate that streams
affected by mining had significantly fewer total fish species and fewer benthic fish
species than streams without mining in the same areas (Stauffer and Ferreri, 2002), likely
due to changes in water quality. Surface coal mining and associated increases in
conductivity and total dissolved solids and construction of sediment ponds have been
shown to create conditions considered favorable to the growth of golden algae
(Prymnesium parvum), which has caused large aquatic life kills; and conditions favorable
to golden algae growth will occur in Pigeonroost Branch and Oldhouse Branch. Fish also
will be exposed to increases in selenium concentrations, which will lead to
bioaccumulation in fish tissues and to reproductive effects (see Section V.D.I.a.).
Additionally, increases in conductivity and total dissolved solids will have a significant
adverse effect on aquatic macroinvertebrates, some of which are preferential prey items
for the fish species present in these streams, and, as a result, these fish will likely be
similarly adversely affected (see Section V.D.2.b.).
V.D.4.a. Potential to Promote the Growth of Golden Algae
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Construction of valley fills and other discharges authorized by DA Permit No.
199800436-3 (Section 10: Coal River) into Pigeonroost Branch and Oldhouse Branch as
authorized will create in-stream conditions in or near Spruce Fork favorable to the growth
of golden algae (Prymnesium parvum), which releases toxins that kill fish and other gill-
breathing aquatic organisms. P. parvum is a haptophyte (flagellated) algae now
distributed worldwide. This alga has been known to occur in North America since the
1980s (Baker et al., 2007) and has since become established in rivers and reservoirs in
several states. P. parvum is responsible for harmful algal blooms that have killed
millions of fish in Texas and Oklahoma, and has been implicated in kills from North
Carolina to Arizona.
P. parvum has also been associated with an extensive and severe aquatic life kill in the
central Appalachians, in which thousands of fish, mussels and other aquatic organisms
were destroyed in Dunkard Creek in West Virginia and Pennsylvania (Roelke et al.2010,
Sager et al.2008). During September 2009, biologists reported observations of thousands
of dead fish, mussels and salamanders in Dunkard Creek (Hambright 2010). Mud
puppies, an aquatic salamander that lives its entire life underwater, crawled out of the
water and onto rocks and the shoreline in an attempt to escape from the toxic water.
Field biologists observed numerous individuals as dried up carcasses on rocks and along
the shoreline. Fish were observed avoiding the main stem of Dunkard Creek by
practically "stacking up" in the mouths of tributaries, subjecting themselves to feeding by
blue heron rather than remaining in the toxic water of main stem Dunkard Creek. The
identification of P. parvum in 2009 in Dunkard Creek was the first identification of this
invasive aquatic species in the Mid-Atlantic States (Roelke et al.2010).
The factors that are most closely associated with supporting growth of P. parvum are
believed to be:
1. Proximity to a known source of Prymnesium parvum.
2. TDS in high enough concentrations to support P. parvum (estimated to be
between 500 and 1000 mg/L (conductivity 714-1428 (j,S/cm).
3. Nutrients in concentrations high enough to initiate a bloom of P. parvum (Baker
et al. 2009)
4. pH greater than 6.5. Risk increases with increasing pH (Baker et al. 2009).
5. Areas of habitat that are pooled (large beaver dams, natural residual pools, or
manmade ponds)
EPA believes that the Spruce No. 1 Mine will increase the probability that all five factors
are met within the Headwaters Spruce Fork sub-watershed, as outlined below.
Proximity to Known Source: P. parvum was identified (in very high numbers) in Cabin
Creek of the Kanawha drainage, only 25 miles to the East. Because these algae can
easily move with waterfowl, the risk of introducing P. parvum in the Spruce Fork
drainage is high. Although not currently found in Spruce Fork, the WVDEP has
identified Spruce Fork as a "water of concern" because of its potential (due to already
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high levels of TDS/conductivity) to support P. parvum blooms consistent with the factors
shown above.
High TDS: The lower TDS limits for the growth of P. parvum appears to be -500 mg/1
TDS, or ~700|iS/cm conductivity for the ion mixtures typical of alkaline mine drainage
(Hambright 2010). Recent data indicate that growth of P. parvum increases 200-300%
when conductivity increases from 500 |iS/cm to 1000 [j,S/cm (unpublished data, WVDEP,
2010, Hambright 2010). The waters draining the nearby Dal-Tex Mine operation have
conductivity levels greater than these values. Many of the sampling sites on the main
stem of Spruce Fork, Pond Fork and the Little Coal River also have conductivity levels
exceeding these endpoints. Other waters of concern near the Spruce No. 1 Mine include
the Little Coal River and West Fork/Pond Fork. As described in SectionV.D. 1 .b.,
construction of valley fills and other discharges authorized by DA Permit No.
199800436-3 (Section 10: Coal River) into Pigeonroost Branch and Oldhouse Branch is
expected to increase levels of TDS/conductivity in Spruce Fork, thus creating conditions
more favorable to P. parvum.
Suitable Nutrient Levels: Nutrient levels in the Spruce Fork are very similar to those in
Dunkard Creek and other watersheds with P. parvum algae present (e.g. Whitely Creek,
PA). Phosphorous in Spruce Fork was over 100 [^g/L on two sampling occasions during
the PEIS.
HighpH: Discharges from Spruce No. 1 Mine are likely to be alkaline, consistent with
pH of discharges from Dal-Tex and other operations.
Existence of Pooled Habitats: Pooled habitats with little to no flow are common in
streams like Spruce Fork in low flow conditions of September and October, when TDS is
highest. In addition, DA Permit No. 199800436-3 (Section 10: Coal River) authorizes
construction of numerous sediment ponds in Pigeonroost Branch and Oldhouse Branch
which will create areas of pooled habitat more favorable to P. parvum. During low
flows, conductivity is typically highest, increasing the possibility that blooms could occur
in very slow moving residual pools within the channel.
V.D.4.b. Increased Exposure to Selenium
The construction of valley fills and other discharges authorized by the DA Permit into
Pigeonroost Branch and Oldhouse Branch will result in elevated levels of selenium in the
receiving waters. While selenium is a naturally occurring chemical element that is an
essential micronutrient, excessive amounts of selenium can have toxic effects on fish.
Selenium toxicity is primarily manifested as reproductive impairment and birth defects
due to maternal transfer, resulting in embryonic physical mutations and death in egg
laying vertebrates such as fish and ducks.
Several nearby streams in the Coal River sub-basin have available data that indicate that
construction of the Spruce mine and associated discharges can result in impacts to
wildlife. According to the WVDEP's study, "Selenium Bioaccumulation among select
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stream and lake fishes in West Virginia" (WVDEP 2009), Seng Creek had the highest
average water column concentration (27.20 ppb) and a corresponding average fish tissue
concentration of 8.16 ppm, while Beech Creek had a water concentration of 12.30 ppb
with a corresponding average fish tissue concentration of 7.55 ppm. In Seng Creek,
creek chub egg/ovary tissue (mean = 19.9 ppm; range = 16.4 - 23.7 ppm; n= 4) and water
measurements (mean =15.8 ug/L; range = 8-45 ug/L; n = 11) indicate that both fish
tissue and water numbers would exceed 5 ug/L and these levels have been documented to
resulted in unacceptable tissue concentrations in the reproductive tissue. Similarly, water
and fish tissue samples from Mud River also show unacceptable impacts to fish. Creek
chub egg ovary (composite measurement of 17.6 in egg/ovary tissue) and water
measurements (mean = 9.5 ug/L; range = 4-22 ug/L; n = 21) in Mud River show that
selenium concentrations exceed 5 ug/L and has resulted in unacceptably high tissue
concentrations in fish.
As discussed in Section V.D.I.a., construction of the Spruce No. 1 Mine will disturb
selenium bearing strata consistent with the strata disturbed by the Dal-Tex complex, will
remove Pigeonroost Branch and Oldhouse Branch as sources of dilution, and will
increase in-stream selenium concentrations to levels comparable with the Dal-Tex
complex. The foregoing data supports EPA's view that the increased selenium resulting
from the Spruce No. 1 Mine will elevate fish tissue concentrations to levels that will
result in unacceptable adverse impacts in wildlife.
V.D.5. Water-dependent Birds
The indirect effects on Louisiana Waterthrush populations are attributable to the loss of
aquatic macroinvertebrate food sources and water quality impacts associated with
construction of the Spruce No. 1. Mine. As stated in Section IV.B.4. above, the
Louisiana Waterthrush is an area-sensitive riparian-obligate species whose breeding
success depends on the diverse and productive assemblage of aquatic insects supported
by healthy headwater systems (Mattson and Cooper 2009). Birds dependent on aquatic
insect larvae and emergent adults as prey, such as the Louisiana Waterthrush, will be
adversely affected by the project due to food web effects associated with altered aquatic
macroinvertebrate communities (see Section V.D.2.a.).
Studies indicate that breeding territory density and occupancy are reduced along streams
where benthic macroinvertebrate communities had been degraded due to anthropogenic
land uses including mining (Mulvihill 1999, 2008, Mattsson and Cooper 2009, O'Connell
et al. 2003). For example, lower breeding territory densities have occurred along streams
impacted by acid mine drainage more so than along circumneutral streams (Mulvihill
1999, 2008). The driver behind these lower densities is decreased food availability, as
acid mine drainage has a similar effect on macroinvertebrate populations as alkaline
drainage and salinity (Mulvihill 2008). Similarly, some indices of benthic
macroinvertebrate integrity are shown to be higher where breeding Louisiana
Waterthrushes are present than areas from which they are absent (O'Connell et al.2003).
Stream reaches where breeding waterthrushes were present also had a greater proportion
of pollution-sensitive benthic macroinvertebrates than reaches where waterthrushes were
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absent, supporting the concept that good water quality is a key component of the species
breeding habitat (Mulvihill 2008).
In addition to impacts resulting from the loss of macroinvertebrate food sources, studies
also indicate that the Louisiana Waterthrush will be adversely affected by increased
exposure to selenium through prey consumption. Since Waterthrush diet is comprised of
aquatic and terrestrial insects, as well as small fish and amphibians, where selenium
levels are elevated in macroinvertebrate and salamander populations, Waterthrush will be
exposed in a majority of their prey (Patnode et al. 2005).
As the scientific literature demonstrates, Louisiana Waterthrush populations are
vulnerable to impairments in water quality downstream of mining operations. EPA
believes that there will be unacceptable adverse impacts to Louisiana Waterthrush
populations downstream of the Spruce No. 1 project area as the result of indirect water
quality impacts from the filling of Pigeonroost Branch and Oldhouse Branch and their
tributaries.
V.D.6. Summary
Construction of valley fills, sediment ponds, and other discharges authorized by DA
Permit No. 199800436-3 (Section 10: Coal River) in Pigeonroost Branch and Oldhouse
Branch will eliminate headwater stream systems that support some of the last remaining
least-disturbed conditions within the Coal River sub-basin and will therefore result in a
significant loss of wildlife habitat. The burial of these streams will lead to discharges of
TDS and selenium, which will result in unacceptable adverse effects on wildlife in
downstream waters. Increased salinity levels will lead to loss of macroinvertebrate
communities and population shifts to more pollution-tolerant taxa, specifically the
extirpation of ecologically important macroinvertebrates. Through the loss of stream
macroinvertebrate and salamander communities, there will be, in turn, substantial effects
to both aquatic and terrestrial vertebrate populations that rely on these communities as a
food source.
It is well recognized that the loss of a certain number of individuals of a species in a local
ecological community can be tolerated, provided that the species continues to reproduce
to replace lost individuals. However, when species are impacted by both acute stressors
(e.g., food web changes, algal blooms) and exposure to reproductive toxicants, there is an
increased risk of the loss of an entire species within an area. The loss of
macroinvertebrate prey populations, increased risk of harmful golden algal blooms, and
additional exposure to selenium will have an unacceptable adverse effect on the 26 fish
species found in Spruce Fork as well as amphibians, reptiles, crayfish, and bird species
that depend on downstream waters for food or habitat.
Based on this information, EPA has concluded that the discharges of dredged or fill
material to Pigeonroost Branch and Oldhouse Branch as authorized by DA Permit No.
199800436-3 (Section 10: Coal River) will have unacceptable adverse effects on wildlife
downstream of the Spruce No. 1 Mine.
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V.E Compliance with Relevant Portions of the § 404(b)(1) Guidelines
EPA has broad discretion under § 404(c) in evaluating and determining whether a
discharge will result in "unacceptable adverse effects." EPA has concluded, in this case,
that burying 6.6 miles of rare and important high quality streams will have an
unacceptable adverse impact on the wildlife that rely on those streams for all or part of
their life cycles, and that the discharges of TDS and selenium, loss of freshwater dilution
from these buried streams, and significant alteration of aquatic macroinvertebrate
communities will have an unacceptable adverse effect to aquatic wildlife downstream of
the mining operation. Each of these determinations on its own is a sufficient basis to
withdraw the specification of these streams as disposal sites and to prohibit the
specification of the defined area constituting Pigeonroost Branch, Oldhouse Branch and
their tributaries for use as a disposal site associated with future surface coal mining that
would be expected to result in a nature and scale of adverse chemical, physical, and
biological effects similar to the Spruce No. 1 mine
In addition, EPA's § 404(c) regulations at 40 CFR 231.2(e) provide that in evaluating the
"unacceptability" of impacts, consideration should be given to the "relevant portions of
the § 404(b)(1) Guidelines." As discussed further below, EPA has identified numerous
inconsistencies with the requirements of the § 404(b)(1) Guidelines. In Sections V.C.
and V.D., EPA determined that there are unacceptable adverse impacts to wildlife, and
the Agency's evaluation of compliance with relevant portions of the Guidelines in this
section provides support and confirmation of the conclusion that the impacts are
unacceptable.
For purposes of the Spruce No. 1 Mine, the relevant portions of the § 404(b)(1)
Guidelines that are particularly important for assessing the unacceptability of
environmental impacts include:
Less environmentally damaging practicable alternatives (40 CFR 230.10(a))
Significant degradation of waters of the United States (40 CFR 230.10(c))
o Cumulative effects (40 CFR 230.11(g))
o Secondary effects (40 CFR 230.11(h))
Minimization of adverse impacts to aquatic ecosystems (40 CFR 230.10(d))
V.E.I. Less Environmentally Damaging Alternatives/Failure to Minimize
Impacts
The § 404(b)(1) Guidelines state at 40 CFR 230.10(a) that no permit may be issued if
there is a practicable alternative that would result in less damage to aquatic resources
while still meeting the basic project purpose, provided it would not result in other
significant adverse environmental impacts. Similarly, 40 CFR 230.10(d) states that steps
should be taken to minimize all remaining unavoidable impacts. These two required
elements of the Guidelines are typically fulfilled with a thorough analysis of alternatives,
including evaluation of alternative project sitings, changes to project design,
implementation of best management practices, and adaptive management plans to
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minimize the risk of adverse impacts. EPA's determination that the Spruce No. 1 Mine
will result in unacceptable adverse impacts to wildlife does not depend on the presence or
absence of alternatives that would result in less severe environmental impacts to waters
of the United States, or on whether there are or are not further opportunities to minimize
the impacts from the project. Nonetheless, EPA's evaluation of these portions of the §
404(b)(1) Guidelines serves to strengthen EPA's determination about the unacceptability
of the significant impacts that would occur from Spruce No. 1 Mine.
In discussions with the permittee before and during the § 404(c) process, EPA has
repeatedly stated its belief that there are alternative mine design and construction
practices that would further reduce aquatic resource impacts, while allowing the majority
of coal present on site to be mined in a cost effective and technically feasible manner. As
referenced in Section III.C., the permittee has presented only limited alterations to the
permitted project that it believes would likely result in environmental improvements.
These proposals included additional compensatory mitigation projects, new mine
construction practices, and increased water quality monitoring.
EPA maintains, however, that there appear to be additional practicable alternative project
configurations and practices that would significantly reduce and/or avoid anticipated
environmental and water quality impacts to Pigeonroost Branch and Oldhouse Branch.
Moreover, § 230.10(a) establishes rebuttable presumptions that, in the case of non-water
dependent projects (such as this), practicable, less environmentally damaging alternatives
exist. EPA does not believe the permittee has carried its burden to clearly demonstrate
that such alternatives do not exist.
EPA is working effectively with mining companies to identify alternative mining
configurations and practices to reduce the nature and extent of anticipated adverse
environmental and water quality impacts. EPA and mining companies have, for example,
coordinated to reduce the volume of excess spoil being placed in valley fills, minimize
rainwater and groundwater contact with pollutant-bearing strata, divert stormwater away
from streams and other surface waters, phase mining construction to assess the
effectiveness of best management practices designed to protect water quality, eliminate
and consolidate valley fills, remove treatment ponds from stream beds, compact excess
spoil and cant fills to reduce rainwater infiltration, and other cost effective actions for
reducing or avoiding environmental and water quality impacts without significantly
affecting coal recovery. Mingo Logan Company has expressed a willingness to take
some additional steps focusing on best management practices to reduce impacts, but has
been consistently unwilling to consider needed actions to further reduce the 35,000 feet
of direct impacts of valley fills on headwater streams or to phase valley fill construction
in a manner that would allow for effective assessment of, and an adaptive management
response to, adverse impacts to wildlife habitat and anticipated water quality problems.
Because the scope of this Final Determination is limited to withdrawal of
specification of Pigeonroost Branch and Oldhouse Branch as disposal sites for discharges
of dredged or fill material in connection with the Spruce No. 1 Mine, as well as future
discharges, within the defined area constituting Pigeonroost Branch, Oldhouse Branch
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and their tributaries, associated with surface coal mining that would be expected to result
in a nature and scale of adverse chemical, physical, and biological effects similar to the
Spruce No. 1 mine, EPA takes no position as to whether other, less damaging alternatives
would be likely to result in acceptable effects on wildlife or satisfy the § 404(b)(1)
Guidelines. However, the facts that such alternatives appear to exist based on extensive
experience with other mining operations in Appalachia, and that the permittee has not
clearly demonstrated to the contrary, further enhance EPA's assessment of the
unacceptability of the impacts that were previously described.
V.E.2. Significant Degradation
The § 404(b)(1) Guidelines direct that no discharge of dredged or fill material shall be
permitted if the discharge will cause or contribute to significant degradation of waters of
the United States (40 CFR 230.10(c)). Of particular relevance in this instance, the
Guidelines state that effects contributing to significant degradation considered
individually or collectively, include:
(1) Significantly adverse effects of the discharge of pollutants on human
health or welfare, including but not limited to effects on municipal water
supplies, plankton, fish, shellfish, wildlife, and special aquatic sites.
(2) Significantly adverse effects of the discharge of pollutants on life
stages of aquatic life and other wildlife dependent on aquatic ecosystems,
including the transfer, concentration, and spread of pollutants or their
byproducts outside of the disposal site through biological, physical, and
chemical processes; and
(3) Significantly adverse effects of the discharge of pollutants on aquatic
ecosystem diversity, productivity, and stability. Such effects may include,
but are not limited to, loss of fish and wildlife habitat or loss of the
capacity of a wetland to assimilate nutrients, purify water, or reduce wave
energy
As discussed in Section IV.A. above, Pigeonroost Branch and Oldhouse Branch and their
tributaries are some of the last remaining streams within the Headwaters Spruce Fork
sub-watershed and the larger Coal River sub-basin that represent "least-disturbed"
conditions. As such, they perform important hydrologic and biological functions, support
diverse and productive biological communities, contribute to prevention of further
degradation of downstream waters, and play an important role with regard to providing
necessary habitat for wildlife within the context of the overall Headwaters Spruce Fork
sub-watershed and Coal River sub-basin.
The Spruce No. 1 Mine as authorized will bury virtually all of Oldhouse Branch and its
tributaries and much of Pigeonroost Branch and its tributaries under excess spoil
generated by surface coal mining operations. These discharges will result in the burial of
approximately 6.6 miles of high quality Appalachian headwater streams in a watershed
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that has already experienced substantial impairment. The loss of these portions of
Pigeonroost Branch and Oldhouse Branch will result in a significant loss of wildlife
habitat and would therefore adversely impact wildlife that depend on those headwater
streams for all or part of their life cycles. As detailed in Sections V.C. and V.D., these
direct impacts will result in significantly adverse effects on over 84 taxa of
macroinvertebrates, as well as up to 46 species of reptiles and amphibians, 4 species of
crayfish, 5 species of fish and at least one water-dependent bird species
Beyond the direct burial of wildlife species and loss of habitat, EPA has also determined
that the project will result in significantly adverse effects on downstream wildlife. If
constructed as permitted, the Spruce No. 1 Mine will result in increased pollutant
loadings in Spruce Fork and the Little Coal River. Increased salinity levels will lead to
loss of macroinvertebrate communities and population shifts to more pollution-tolerant
taxa, specifically the extirpation of ecologically important macroinvertebrates. Further,
loss of macroinvertebrate prey populations, increased risk of harmful golden algal
blooms, and additional exposure to selenium will result in significantly adverse effects on
the 26 fish species found in Spruce Fork as well as amphibians, reptiles, crayfish, and
bird species that depend on downstream waters for food or habitat.
The Spruce No. 1 Mine will eliminate the entire suite of important physical, chemical and
biological functions provided by the streams of Pigeonroost Branch and Oldhouse Branch
including maintenance of biologically diverse wildlife habitat and will critically degrade
the chemical and biological integrity of downstream waters. Impacts to these functions at
the scale associated with this project will result in significant degradation (40 CFR
230.10(c)) of the Nation's waters, particularly in light of the extensive cumulative stream
losses in the Spruce Fork and Coal River watersheds discussed in more detail below.
V.E.2.a Cumulative Effects
Fundamental to the § 404(b)(1) Guidelines "is the precept that dredged or fill material
should not be discharged into the aquatic ecosystem, unless it can be demonstrated that
such a discharge will not have an unacceptable adverse impact either individually or in
combination with known and/or probable impacts of other activities affecting the
ecosystems of concern." 40 CFR 230.1(c).
The § 404(b)(1) Guidelines (at 40 CFR 230.11(g)) also direct that factual findings be
made regarding cumulative effects on the aquatic ecosystem and that those findings be
considered in determining whether the discharge complies with the foregoing restriction.
To that end, the § 404(b)(1) Guidelines describe the factual finding that must be made
with respect to cumulative effects as follows:
Cumulative impacts are the changes in an aquatic ecosystem that are attributable
to the collective effect of a number of individual discharges of dredged or fill
material. Although the impact of a particular discharge may constitute a minor
change in itself, the cumulative effect of numerous such piecemeal changes can
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result in a major impairment of the water resources and interfere with the
productivity and water quality of existing aquatic ecosystems.
Cumulative effects attributable to the discharge of dredged or fill material in
waters of the United States should be predicted to the extent reasonable and
practical. The permitting authority shall collect information and solicit
information from other sources about the cumulative impacts on the aquatic
ecosystem. This information shall be documented and considered during the
decision-making process concerning the evaluation of individual permit
applications, the issuance of a general permit, and monitoring and enforcement of
existing permits.
As has been described in Section IV.A., the Coal River sub-basin and the Headwaters
Spruce Fork sub-watershed are already impacted by mining activity. Based upon the
National Land Cover Database (NLCD) change product for 1992-2001 and the
WVDEP's GIS mine permit data, more than 257 past and present surface mining permits
have been issued in the Coal River sub-basin, and the corresponding mines collectively
occupy more than 13% of the land area. In the Spruce Fork watershed, more than 34 past
and present surface mine permits have been issued, and the corresponding mines
collectively occupy more than 33% of the land area. The project will affect an additional
2,278 acres (3.56 mi2), which is equivalent to approximately 2.8% of the Spruce Fork
watershed. This percentage of land cover affected by surface mines will continue to
increase in the Coal River sub-basin, as additional projects are proposed and authorized.
A 1997 WVDEP ecological assessment of the Coal River sub-basin indicated that
because the sub-basin is becoming increasingly impaired due to stressors such as mining,
there is a need to protect the remaining quality resources, highlighting the need to
"[ljocate and protect the few remaining high quality streams in the Coal River
watershed...." (WVDEP 1997a). Pigeonroost Branch and Oldhouse Branch, two of the
streams directly affected by the Spruce No. 1 Mine, are high quality resources that
support an exceptionally high number of mayfly taxa, both within the Central
Appalachian Region and statewide (see Appendix 2). By directly impacting these
streams, which serve as refugia for aquatic life and potential sources for recolonizing
nearby waters, the action will have a significant adverse effect on the aquatic ecosystem
integrity in the sub-basin.
For purposes of this analysis, EPA considered cumulative effects to the Coal River sub-
basin (891 square miles) and the Headwaters Spruce Fork sub-watershed (126.4 square
miles) if the Spruce No. 1 Mine is constructed as authorized by DA Permit No.
199800436-3 (Section 10: Coal River) and other reasonably foreseeable (proposed and/or
authorized but not constructed) surface mining projects within the Coal River sub-basin
are constructed. This cumulative effects analysis also takes into consideration the past
and present mining projects within the sub-basin and sub-watershed, and the extent to
which they have affected the current baseline conditions within the sub-basin and sub-
watershed (Figure 15).
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EPA is aware of at least 11 additional mining operations either proposed or authorized
but not constructed in addition to Spruce No. 1 in the Coal River sub-basin. Construction
of valley fills and other discharges authorized by DA Permit No. 199800436-3 (Section
10: Coal River) along with these additional projects in the Coal River sub-basin, if
constructed, would directly impact approximately 29.4 miles of stream channels, and will
have significant secondary and cumulative effects on downstream waters in the Coal
River sub-basin. Downstream impacts from these projects can be expected to include
reduced freshwater dilution, reduced headwater stream functional inputs, increased
discharges of pollutants, including TDS and selenium, and the potential to contribute to
existing water quality impairments within the Spruce Fork watershed and the Coal River
sub-basin.
The Coal River sub-basin contains 743 miles of impaired streams, 33% of the total
stream length in the sub-basin (WVDEP 2010b). The WVDEP has listed certain of these
stream segments for selenium and biological impairment, among other pollutants. The
additional fills associated with the Spruce No. 1 Mine, in combination with past and
present mining by the applicant and other mining in the sub-basin, will cause or
contribute to significant cumulative adverse impacts to the stream resources in the Coal
River sub-basin, and will contribute to current water quality impairments within the sub-
basin, and result in unacceptable adverse effects on wildlife and their habitat.
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(Smith Creek-Coal River.
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levels of conductivity that reflect increasing extirpation of aquatic life communities (see
Appendix 5 for detailed methods and results).
Results of this analysis indicate that there are significant and strong quantitative
relationships between mining activities in a watershed and downstream conductivity
condition (See also USEPA 2010a, Appendix A and F). The majority of development-
only sites had stream conductivity less than 500 |iS/cm, with no development-only sites
measuring higher than 800 |iS/cm (Figure 16). The two regression curves based on the
combined mining/development and mining-only sites were similar to each other. The
mining-only regression was used to identify percent mining levels related to increasing
conductivity conditions.
Using these calculations, a watershed network modeling system was constructed to
estimate downstream chemical response to mining activities upstream within the Coal
River sub-basin. The calculated percent mining levels were embedded in an alternative
futures analysis and used to quantify changes in stream conductivity conditions under
three development scenarios; current condition, full construction of the Spruce No. 1
Mine, and full construction of the Spruce No. 1 Mine plus full construction of currently
WVDEP-permitted surface mines.18 For each scenario, the number of stream segments
and length of stream were calculated and classified into conductivity ranges.
Based on the results of this model, EPA estimates that summer conductivity is currently
below 300 [j,S/cm in 5.3% (4.6 miles) of the 86.7 miles of stream segments within or
downstream of the Spruce No. 1 Mine site to the mouth of the Coal River. If the Spruce
No. 1 Mine is constructed as permitted, this analysis shows that there will be no stream
segments with conductivity less than 300 [j,S/cm downstream of the mine site in the Coal
River sub-basin. Currently, 2.2% (1.9 mi) of the stream segments within or downstream
of the Spruce No. 1 Mine site are calculated to have conductivity greater than 1000
[j,S/cm. Following full construction of the permitted area, 21.1% (18.8 mi) are projected
to have conductivity greater than 1000 [j,S/cm. As this demonstrates, conductivity is
predicted to significantly increase in Spruce Fork as the Spruce No. 1 Mine is
constructed.
If other permitted mine areas, in addition to Spruce No. 1, are included in the analyses,
the cumulative effects are predicted to result in higher conductivities in both the Little
Coal and Coal Rivers. Within the Headwaters Spruce Fork sub-watershed, percent
mining is predicted to increase by 15.8% over current conditions under this scenario,
which will elevate conductivity from less than 750 |iS/cm to greater than 1000 |iS/cm at
the mouth of Spruce Fork. Similarly, within the Little Coal River watershed, the
calculation of full construction of all permitted mines results in percent mining increasing
by 11.2% over current conditions, which results in predicted conductivity elevating from
less than 750 |iS/cm to as much as 1000 |iS/cm within the Little Coal River. At the
broadest scale analyzed, percent mining is predicted to increase by 9.3% in the Coal
18 EPA makes no determination at this time regarding whether these other mines comply with the §
404(b)(1) Guidelines or may result in unacceptable adverse impact under § 404(c).
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River sub-basin with full construction of all permitted mines. This also resulted in
conductivity increasing from less than 750 |iS/cm to as much as 1000 |iS/cm within the
Coal River.
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considered in determining whether the discharge will cause or contribute to significant
degradation of the Nation's waters. To that end, the § 404(b)(1) Guidelines describe the
factual finding that must be made with respect to secondary effects as follows:
Secondary effects are effects on an aquatic ecosystem that are associated with a
discharge of dredged or fill materials, but do not result from the actual placement
of the dredged or fill material. Information about secondary effects on aquatic
ecosystems shall be considered prior to the time final section 404 action is taken
by permitting authorities.
Some examples of secondary effects on an aquatic ecosystem are fluctuating
water levels in an impoundment and downstream associated with the operation of
a dam, septic tank leaching and surface runoff from residential or commercial
developments on fill, and leachate and runoff from a sanitary landfill located in
waters of the U.S.
Section V.D. includes a discussion and analysis of the secondary effects of the Spruce
No. 1 Mine including the degradation of downstream water quality by 1) removing
streams that currently provide sources of freshwater dilution and 2) transforming those
stream areas into sources of contaminants (particularly TDS and selenium). The
downstream water quality changes associated with the authorized project would
significantly reduce the functional diversity, as well as the overall abundance and
productivity of macroinvertebrate communities, thus, through cascading food web
effects, adversely impact an extensive list of vertebrate species which depend upon the
macroinvertebrate community within these streams for nourishment.
The adverse secondary effects discussed in Section V.D. include substantial changes in
aquatic communities, such as loss of fish and salamander diversity and sensitive mayfly
and stonefly taxa, as well as shifts to more pollution-tolerant taxa. Through the loss of
stream macroinvertebrate and salamander communities, there will be, in turn, substantial
effects to both aquatic and terrestrial vertebrate populations that rely on these
communities as a food source. In addition, the discharges will increase loading of
pollutants to downstream receiving waters, increasing the risk of harmful golden algal
blooms and causing or contributing to fish and bird impairments due to selenium
exposure.
V.E.3. Mitigation Will Not Adequately Offset Anticipated Impacts
If constructed as authorized the Spruce No. 1 Mine will result in direct impacts through
discharge of dredged or fill material to approximately 6.6 miles of stream in Pigeonroost
Branch and Oldhouse Branch. The impacts from these discharges are discussed in
Sections V.C. While recognizing that the project includes mitigation efforts (including
stream creation and enhancement of existing streams) to compensate for unavoidable
adverse impacts, EPA believes that known compensatory mitigation techniques will not
replace the high quality resources of Pigeonroost Branch and Oldhouse Branch that will
be impacted by the project. Additionally, EPA believes that the current mitigation plan
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does not adequately account for the quality and function of the impacted resources.
Under § 404(c), EPA has discretionary authority to prohibit or withdraw the
specification of a defined area as a disposal site whenever the Administrator determines
that the discharge will have an unacceptable adverse effect on a number of identified
categories. Therefore, as a legal matter, EPA can make a determination that a discharge
of dredged or fill material will cause unacceptable adverse effects without consideration
of compensatory mitigation. The statutory standard does not mention mitigation directly
and authorizes EPA to determine what constitutes an unacceptable adverse effect. In
other words, EPA does not need to determine that mitigation is somehow flawed or
insufficient in order to conclude that a proposed or authorized discharge would have
unacceptable adverse effects. EPA's conclusion that there is noncompliance with the
Guidelines with respect to mitigation confirms the unacceptability of the adverse impacts
on wildlife within the project area and downstream.
The Compensatory Mitigation Plan (CMP) submitted by Mingo Logan describes on-site
and off-site, in-kind mitigation. On-site compensation would include the restoration of
7,132 linear feet of stream segments temporarily impacted by the sediment ponds, and the
creation of 43,565 linear feet of on-bench stream channel within the project area. On-
bench sedimentation ditches are SMCRA-required Best Management Practices (BMPs)
to control runoff. Off-site compensation includes stream enhancements to Spruce Fork
and Rockhouse Creek through a combination of physical, aquatic habitat, and stream
stabilization improvements. The CMP also proposes to direct surface water flow from
the project area in existing drainage ways to promote the development of more defined
channels, thus creating 26,625 linear feet of streams.
Both EPA and the USFWS have repeatedly identified problems with the mitigation
techniques that are part of the CMP for the Spruce No. 1 Mine. EPA Region Ill's
comments on the 2006 draft and final EISs for the Spruce No. 1 Mine expressed concerns
that the compensatory mitigation plan did not adequately mitigate all adverse impacts and
was inadequate in terms of its lack of functional assessment, as well as whether proposed
headwater stream creation would in fact replace the functions of impacted resources.
EPA Region III emphasized the importance of headwater stream functions that would be
lost and likely not replaced, particularly by the conversion of existing drainage channels
to streams as described in the CMP. In its December 4, 2001, letter the USFWS
expressed similar concerns that the proposed mitigation was unlikely "to provide
sufficient mitigation for permanent stream and riparian habitat loss and for the losses of
the functions and values of the stream to aquatic species in the fill footprint and to the
downstream ecosystem." These concerns were reiterated by the USFWS in its June 2,
2010, and December 16, 2010, letters commenting on the EPA Region III Proposed
Determination and Recommended Determinations, respectively.
As discussed below and in Appendix 3, the project fails to include all appropriate and
practicable steps to minimize and compensate for the project's adverse impacts on the
aquatic ecosystem as required by 40 CFR 230.10(d). Further, EPA believes that the
anticipated level of adverse impacts associated with the Spruce No. 1 Mine will not be
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offset by the required compensatory mitigation to the extent necessary to prevent
significant and unacceptable effects on wildlife and their habitat.
V.E.3.a. Proposed Mitigation Will Not Replace High Quality Resources
in Pigeonroost Branch and Oldhouse Branch
There is no evidence in the peer-reviewed literature that the type of stream creation
included in the CMP will successfully replace lost biological function and comparable
stream chemistry to high quality stream resources, such as Pigeonroost Branch and
Oldhouse Branch. Scientific research has demonstrated that replacement of streams is
among the most difficult and frequently unsuccessful forms of mitigation (Bernhardt et
al.2007). Even if stream structure and hydrology can be replaced, it is not clear that
replacing structure and hydrology will result in true replacement of functions, especially
the native aquatic community and headwater functions. Based upon this research, the
Corps and EPA stated in the response to comments on the 2008 Compensatory Mitigation
for Losses of Aquatic Resources Final Rule:
We recognize that the scientific literature regarding the issue of stream
establishment and re-establishment is limited and that some past projects have had
limited success (Bernhardt et al.2007). Accordingly, we have added a new
paragraph at 33 CFR 332.3(e)(3) [40 CFR 230.93(e)(3)] that specifically notes
that there are some aquatic resources types that are difficult to replace and streams
are included among these. It emphasizes the need to avoid and minimize impacts
to these 'difficult-to-replace' resources and requires that any compensation be
provided by in-kind preservation, rehabilitation, or enhancement to the extent
practicable. This language is intended to discourage stream establishment and re-
establishment projects while still requiring compensation for unavoidable stream
impacts in the form of stream corridor restoration (via rehabilitation),
enhancement, and preservation projects, where practicable.20
An additional 26,625 feet of high gradient stream credit is sought for connectivity
channels. Connectivity channels are areas where surface water flows from the on-bench
ditches, passes through NPDES outfalls, and runs downhill to eventually "form a
hydrological connection to a surface tributary of a navigable water" (USACE 2007). The
premise is that, if properly placed, connectivity channels will enable mine runoff water to
travel down natural, steep hill slopes and ephemeral channels and into naturally non-
flowing receiving segments. However, based on the changes to water quality discussed
in Section V.D.I., they will receive selenium and dissolved solids from the mined area,
resulting in degraded water quality and an inability of these channels to provide
meaningful ecological functions and values to replace the affected streams. In addition,
20 EPA recognizes that the effective date of the regulations governing compensatory mitigation that were
promulgated at 73 Fed. Reg. 19594 (April 10, 2008) is June 9, 2008, and therefore were not in effect when
the Corps of Engineers issued DA Permit No. 199800436-3 (Section 10: Coal River). Nevertheless, the
above-quoted statement, taken from the preamble to those regulations, represents the most recent regulatory
statement by the agencies regarding types and effectiveness of mitigation and summarizes scientific
research and literature that is applicable to consideration of the likely efficacy of the compensatory
mitigation proposed for the Spruce No. 1 Mine.
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these channels will function as sources of pollutants, delivering additional selenium and
total dissolved solids to downstream headwater streams.
As discussed in this document, the streams of Pigeonroost Branch and Oldhouse Branch
have been shown to exhibit high water quality and high functional capacity. Given the
difficulty of stream re-establishment to mitigate for impacts to streams in general, EPA
believes it is extremely unlikely that high-value streams such as these can be replaced by
on-site stream creation techniques involving conversion of sedimentation ditches fed by
mine spoil runoff and seepage. As explained further in Appendix 3, EPA believes that
the mitigation for the Spruce No. 1 Mine will not offset the anticipated impacts to an
acceptable level.
V.E.3.b. The Compensatory Mitigation Plan is Based upon a
Misclassification of the Impacted Resources
The starting point for an adequate compensatory mitigation plan is accurate
characterization of the impacted resources. EPA believes that the Spruce No. 1 Mine
CMP is based upon a misclassification of impacts to perennial and intermittent streams,
thereby resulting in an insufficient baseline from which to design adequate stream
compensation.
The USGS documented the flow origin, drainage areas and hydrologic characteristics of
perennial and intermittent streams in this region in 2000 and 2001 (Paybins 2003). A
field reconnaissance by EPA during dry conditions in September 1998 (Green and
Passmore 1999) found distinct perennial benthic communities (i.e., long-lived taxa
representative of perennial conditions) in the upper reaches of Pigeonroost Branch and
Oldhouse Branch. Through these onsite visits and biological data collection, combined
with USGS drainage estimates, EPA estimates that, within the mine footprints of
Pigeonroost Branch, and Oldhouse Branch, approximately four miles of stream (-20,000
feet) are perennial. In this case, "perennial" refers to streams that have either 1) perennial
flow and indicator biota requiring at least a 6 month life cycle, or 2) non-contiguous
surface flow during drought conditions but indicator biota requiring at least a 6 month life
cycle.
This is in contrast to the DA Permit estimation of 165 feet of perennial waters within the
entire project area. This misclassification has a critical impact upon the type of
mitigation that would be required to offset these impacts. The resource type plays an
important role in the types of expected aquatic communities, the degree in which each
resource provides structure and function, and the amount of organic matter and nutrients
(and contaminants) ultimately retained or loaded to receiving streams. This
misclassification means that the compensatory mitigation plan does not properly account
for, and therefore will not offset, the full range of adverse impacts related to the project.
A more detailed description of EPA's analysis of stream type is described in Appendix 3.
V.E.3.C. The Compensatory Mitigation Plan Lacks an Adequate
Functional Assessment
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In addition to being based on a misclassification of resource type, the CMP also is based
upon an inadequate functional assessment of the impacted resources. The goal of
compensatory mitigation is to replace the aquatic resource function lost or adversely
affected by authorized activities. Therefore, to ensure that the functions are being
replaced, the compensatory mitigation must create or restore streams that sustain
comparable biological communities and chemical and physical characteristics and
provide comparable physical, chemical and biological functions to the streams that have
been eliminated. The § 404(b)(1) Guidelines require the permitting authority to make
certain factual determinations addressing the potential short-term or long-term effects of
a proposed discharge of dredged or fill material on the physical, chemical, and biological
components of the aquatic environment. See, 40 CFR 230.11. Among the factual
determinations required of the permitting authority is the following:
(e) Aquatic ecosystem and organism determinations. Determine the nature and
degree of effect that the proposed discharge will have, both individually and
cumulatively, on the structure and function of the aquatic ecosystem and
organisms.
This provision of the Guidelines requires the permitting authority to determine the nature
and degree of effect that the proposed discharge will have on both the structure and
function of the aquatic ecosystem and organisms. This principal from the Guidelines was
reiterated and clarified in a joint Department of the Army/EPA guidance memo, focused
specifically on the review of permit applications for Appalachian surface coal mining.21
In order to ensure adequate replacement of both structure and function, the impacted
streams must be accurately assessed and the proposed compensation must be evaluated
using comparable standards for assessment. As discussed above, the baseline assessment
of the existing and impacted streams on the site missed and misclassified well over
twenty thousand linear feet of headwater streams, which prevented the US ACE from
identifying the appropriate compensation needs of this project.
In addition, the assessment method used by the permittee was inadequate and led to an
improper valuation of compensation needs and proposals. The CMP utilized an
assessment method referred to as the Stream Habitat Unit (SHU) method to calculate
mitigation debits and credits. This assessment entails a combination of linear lengths of
impact, habitat assessment scores, and stream hydrological status.22 The limitations of the
21 EPA recognizes that the effective date of this memorandum is July 30, 2010, and therefore was not in
effect at the time the Corps issued DA Permit No. 199800436-3 (Section 10: Coal River). Nevertheless,
the requirement in the Guidelines regarding the factual determination of the impact to the structure and
function of the aquatic ecosystem is applicable and relevant to EPA's evaluation of the Spruce No. 1
compensatory mitigation plan, and the July 30, 2010 memorandum reflects the agencies most recent
statement about the meaning of that requirement.
22 Even though the Corps did not finally rely solely on the SHU for mitigation requirements, the Corps did
not categorically prevent the permittee from using this approach as a basis for its mitigation plan, and
thereby allowed Mingo Logan to use this approach to help justify their mitigation performance and success
criteria.
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SHU and need for an adequate functional assessment are further explained in Appendix
3. The SHU as presented in the CMP only accounts for the physical aspects of stream
condition and fails to account for the interrelationship of water chemistry and biological
resources in stream functioning.
As a result of this EPA believes the current CMP does not adequately account for or
replace the structure and function of the lost streams. EPA does not believe that
increased ratios of intermittent or ephemeral streams offset this inadequacy. While DA
Permit No. 199800436-3 (Section 10: Coal River) refers to biological success criteria and
the use of a yet-to-be developed functional assessment method for mitigation monitoring,
the permit conditions do not clearly require the replacement of lost biological function
and comparable stream chemistry or adequate compensatory mitigation success criteria.
V.E.3.d. Conversion of Erosion Control Channels Will Not Successfully
Replace the Impacted Resources
Based on observations of other on-bench SMCRA drainage or erosion control ditches
(Kirk 1999a, Green et al. 2000, and Gingerich 2009), EPA believes the CMP's proposed
conversion of these ditches will not successfully replace the impacted resources, alone or
in concert with other mitigation contained in the CMP. Over 50% of the linear stream
length in the Spruce mitigation plan relies on conversion of on-bench SMCRA drainage
or control ditches. Data show that water quality in these types of sedimentation ditches in
the Appalachian region is typically highly degraded, as a result of the water in these
ditches percolating through mine spoil (Gingerich 2009). Even when the sedimentation
ditches are enhanced for benthic substrata and riparian vegetation, such as by adding
boulder clusters, the resulting water quality will be so degraded that the ditches will not
meet pre-mining water chemistry baselines, especially in the case of high quality streams
such as Pigeonroost Branch and Oldhouse Branch.
As described previously, degraded water chemistry caused by the addition of TDS and
selenium typically leads to degraded biological communities. The proposed constructed
stream channels will not meaningfully reduce the concentrations of these ions in the
water flowing through them. Because of this degraded water chemistry, any created
waterbodies would not support the healthy and diverse biological communities that they
are intended to replace. Moreover, the water quality (e.g., salinity) would be so degraded
that it will foster conditions favorable to the establishment of toxic Golden Algae.
A comparison of family-level macroinvertebrate data between sediment ditches and
Pigeonroost Branch and Oldhouse Branch reveals marked differences in species richness
and very little taxonomic overlap. Based upon Kirk (1999a) and EPA data, total familial
richness in sediment ditches ranged between 4 to 11 taxa, with 0 to 3 families of
Ephemeroptera, Plecoptera or Trichoptera (EPT) taxa present. In contrast, total familial
richness at Oldhouse Branch and Pigeonroost Branch was 40, with 26 families of EPT
taxa present.
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Of the taxa collected in the sediment ditches, only seven were also present in Oldhouse
Branch and Pigeonroost Branch. With regards to the taxa present in the sediment ditches
that were not found in Oldhouse Branch and Pigeonroost Branch, Pond et al. (2008)
found that these taxa do not generally occur at sites unaffected by mining. These data
demonstrate that taxonomic assemblages in sediment ditches are not only less diverse
than streams unaffected by mining, but include a suite of organisms not found in high
quality headwater streams unaffected by mining, such as Oldhouse Branch and
Pigeonroost Branch.
EPA believes these created streams converted from erosion control channels would be
considered degraded and will not successfully replace Pigeonroost Branch and Oldhouse
Branch as sources of freshwater dilution with healthy biological communities and water
quality, either alone or in concert with other mitigation contained in the CMP.
A more detailed discussion of the limitations of on-bench sedimentation ditches for
mitigation is provided in Appendix 3.
V.E.3.e. The Compensatory Mitigation Plan Does Not Account for the
Loss of Ecological Services Provided by Headwater Streams
EPA is also concerned with the separation of the ecological elements into single, separate
aspects of the ecology in the Spruce No. 1 Mine CMP, with limited consideration for the
interconnectedness of the entire ecosystem. The forested slopes and coves located within
the Spruce No. 1 Mine area are drained by a dendritic mosaic of ephemeral, intermittent
and perennial headwater streams and watercourses. The watershed is inextricably linked
with the stream system that drains it. The overwhelming bulk of the organic matter that
sustains the stream biota in Spruce Fork is a function of the upstream environment.
While compensatory mitigation is required for the impacts to waters of the United States
under the § 404 program, EPA believes that a well-designed compensatory mitigation
plan should take into account this terrestrial-aquatic linkage and ensure that restored or
created channels provide greater functions than simply service as water conveyance
structures.
In a pre-mined condition, these headwater streams are recipients of allochthonous
material (i.e., material originating from outside of the stream system) and water inputs
(i.e., surface, subsurface, and groundwater) from the surrounding forested communities.
The post-mined environment, however, creates severely altered conditions in stream
courses that are not destroyed by valley fills. Those alterations include:
a. Elimination of water and processed organic material from former
upstream tributaries that will be under valley fills.
b. Altered contributions of water and allochthonous material from the
surrounding upland watershed, due to the altered character of the soil and
vegetation communities in a post-mine environment.
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c. Altered hydrograph with new flow regimes that markedly depart from that
under which the streams have evolved.
d. Altered timing, temperature and chemical composition of post-mine
discharges of water to receiving streams.
The permittee proposes to restore or create 71 acres of riparian forest as part of its
reclamation and stream creation and restoration activities. While EPA agrees that
planting trees along any newly created stream channels better recreates pre-mining
riparian conditions than no riparian vegetation, EPA has not seen evidence that such
practices can effectively replace lost natural riparian ecosystems. The current riparian
zone consists largely of basswood, beech, tulip poplar, buckeye, sugar maple, white oak
and red oak, yet out of the 11 tree species listed in the Compensatory Mitigation Plan,
only two are found within or near the project area. Riparian systems created through this
plan are likely to function differently from buried streams because their vegetation
communities will differ from those present on the project site.
The Spruce No. 1 Mine will profoundly alter the contributing watershed. Effectively the
new landscape widely departs from that within which the stream network has evolved.
The subsequent ecosystem is an entirely new system. Based on available information,
the mitigation will not replace the structure and function of the pre-mined conditions
including those elements that are dependent on contributions from the surrounding
watershed. These concerns regarding the mitigation are shared by the USFWS whose
comment letter to EPA regarding the Recommended Determination states ".. .the
currently-proposed mitigation for these impacts is unlikely to adequately compensate for
the loss and degradation of these streams, their biological productivity and diversity, or
their ecological integrity."
V.E.4. Summary
The Spruce No. 1 Mine will eliminate the entire suite of important physical, chemical and
biological functions provided by the streams of Pigeonroost Branch and Oldhouse Branch
including maintenance of biologically diverse wildlife habitat and profoundly alter the
contributing watershed. EPA maintains that impacts to these functions at the scale
associated with this project will result in significant degradation (40 CFR 230.10(c)) of
the Nation's waters, particularly in light of the extensive cumulative stream losses in the
Spruce Fork and Coal River watersheds, and that such degradation will result in
unacceptable adverse impacts on wildlife and wildlife habitat. EPA does not believe
these impacts can be adequately mitigated to reduce the impacts to an acceptable level by
the compensatory mitigation described in the CMP. Finally, the possibility that
additional practicable alternative project configurations and practices exist that would
significantly reduce and/or avoid much of the discharges to Pigeonroost Branch and
Oldhouse Branch further enhances EPA's assessment of the unacceptability of the
impacts that were previously described.
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VI. Other Considerations
As set forth above, EPA has determined that the impacts from the discharges to
Pigeonroost Branch and Oldhouse Branch as authorized by DA Permit No. 199800436-3
(Section 10: Coal River) described in Section V. will have an unacceptable adverse effect
on wildlife both within the project area and downstream of the project area, and that the
project does not comply with the requirements of the § 404(b)(1) Guidelines. This
section identifies other, additional considerations that are of concern to EPA but are not
part of the basis for EPA's conclusion that the impacts will have an unacceptable adverse
effect on wildlife.
EPA includes this discussion to recognize additional significant environmental, public
health, and environmental justice impacts associated with the Spruce No. 1 Mine that are
relevant to EPA's and the Corps' broader responsibilities in reaching permit decisions
under the Clean Water Act and other statutes and policies, including the National
Environmental Policy Act and the Environmental Justice Executive Order (E.O. 12898).
EPA understands that the impacts identified in Section VI are not directly relevant to the
Agency's determination under § 404(c). However, EPA includes this section to
emphasize for the public the broader impacts of the project as they relate to EPA's legal
responsibilities. EPA takes seriously each of its responsibilities to assure effective
protection for coalfield communities from environmental, human health, and water
quality impacts associated with surface coal mining activities.
VI.A. Impacts from Activities Dependent upon Specification of Pigeonroost
Branch and Oldhouse Branch as Disposal Sites for the Discharge of
Dredged or Fill Material for the Spruce No. 1 Mine
The following sections discuss impacts that depend upon specification of Pigeonroost
Branch and Oldhouse Branch for construction of valley fills and sediment ponds for the
Spruce No. 1 Mine, but occur as a result of discharges of excess spoil to areas outside of
jurisdictional waters, or occur as a result of other mining-related activities, such as
deforestation.
VI.A.1. Migratory Birds
The Spruce No. 1 Mine will destroy approximately 2,278 acres of deciduous forests.
Among the many migratory birds likely to breed in the project area, there are six species
that the USFWS has designated as Birds of Conservation Concern within the
Appalachian Mountains Bird Conservation Region that may be impacted. These include
the Cerulean, Kentucky, Swainson's and Worm-eating Warblers, the Wood Thrush, and
the Louisiana Waterthrush. The water-dependent Louisiana Waterthrush was discussed
in Sections V.C.4. and V.D.5. above. The other five avian species are also designated as
BCC species within the USFWS's Northeast Region as a whole and nationally (U.S. Fish
and Wildlife Service 2008). The first four are also considered to be among the 100 most
at-risk bird species in North America (Wells 2007).
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Cerulean and Worm-eating Warblers are also both area-sensitive species that rely on
large blocks of intact, mature, interior forest habitats to support productive breeding
populations. The Cerulean Warbler breeding population is thought to have declined by
about 75% over the past 45 years - the most dramatic decline of any North American
warbler monitored by the Breeding Bird Survey (Sauer et al. 2005). Both species are
threatened by the loss and fragmentation of these habitats (U.S. Fish and Wildlife Service
2007, Wells 2007). Deforestation associated with the Spruce No. 1 Mine can be expected
to adversely impact their breeding populations (Weakland and Wood 2005, Wells 2007).
The project also will impact other bird species that rely on mature forest habitats. Bird
species that rely on mature forest habitats that are abundant in the Appalachian region are
Kentucky warblers in the understory; and Wood Thrush, Swainson's Warbler, Acadian
Flycatcher, and Ovenbirds in mesic hardwoods. These and many other avian species are
all impacted by forest fragmentation and habitat loss, such as that which would occur in
connection with the Spruce No. 1 Mine. Spatial analyses of the effect of Appalachian
mountaintop mining on interior forest indicate that interior forest is lost at a rate 1.75-5.0
times greater than the direct rate of loss of overall forest cover due to mountaintop
mining (Wickham et al. 2007).
The Spruce No. 1 Mine will impact mature forested habitat, over a substantial timeframe,
replacing the impacted areas with reclaimed areas dominated by grasses and herbaceous
species. Many reclaimed areas such as those expected at Spruce No. 1 Mine show little or
no regrowth of woody vegetation even after 15 years. The PEIS found significant
differences in bird populations between forested and reclaimed sites, namely the loss of
the above-mentioned species, and subsequent replacement by more opportunistic
grassland species. Also, the loss of the healthy headwater areas of Spruce Fork will
reduce the feeding and foraging areas available to specialist bird species in this
ecoregion. This reduction in available habitat could potentially impact their long-term
viability in the Spruce Fork watershed and the larger ecoregion.
The USFWS evaluated the terrestrial habitats of the project area and concluded that
construction of the mine was likely to impact migratory birds via the loss and
fragmentation of forest habitat, decreasing habitat heterogeneity, increasing isolation of
populations, and increasing exposure to nest predators and parasites (USFWS 1998). The
USFWS also expressed concerns specific to bird populations within the Coal River sub-
basin related to adverse impacts of the Spruce No. 1 Mine. These concerns included the
direct loss of habitat and direct and indirect loss of food resources, for forest interior and
riparian-obligate species of migratory birds, including six species the Service considers
Birds of Conservation Concern (i.e., Cerulean, Kentucky, Swainson's, and Worm-eating
Warblers; Louisiana Waterthrush; Wood Thrush) (USFWS, 2008).
The USFWS continues to believe that construction of the Spruce No. 1 Mine will
adversely impact these and other forest-breeding migratory birds. The valley fills will
result in the permanent loss of headwater streams that may be used by Louisiana
Waterthrushes. The USFWS indicates they are unaware of peer-reviewed research that
suggests that these birds will simply relocate to an adjacent, unimpacted watershed and
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have comparable survival and reproductive success. The downstream increases in
conductivity, selenium and perhaps other contaminants are also likely to adversely affect
those waterthrushes not excluded by the direct impacts of the fill via impacts to their food
base. In some freshwater food webs, selenium has bioaccumulated to four times the level
considered toxic, which can expose birds to reproductive failure when they eat fish or
insects with high selenium levels.
While the work of the Appalachian Regional Reforestation Initiative (ARRI) shows
substantial promise for better reclamation of mined lands, it has not been demonstrated
that these reclaimed areas will generate and sustain forests that provide habitat
characteristics and qualities comparable to those of native forest. For these reasons, the
construction of the Spruce No. 1 Mine will result in permanent and/or long-term loss of
breeding habitats important to several migratory bird species of conservation concern.
VI.A.2. Bats & Other Mammals
Large-scale mountaintop mining has been identified among the threats to bat species in
the region according to the USFWS. Loss of the bat's habitat, foraging areas, and food
sources, in conjunction with recently identified concerns related to white-nose syndrome,
may result in adverse impacts to these wildlife resources. Similarly, habitat loss from
land clearing will also affect numerous other mammal species within the project area that
rely on forested landscapes for shelter and foraging.
As set forth in Section IV.B.5., the habitat in the project area is quite suitable for
federally endangered Indiana Bats, which have been documented in adjacent counties. It
is therefore quite possible that Indiana Bats occur within the project area, and that they
could be impacted by the loss of forest habitat associated with the Spruce No. 1 Mine and
by the loss of headwater streams, riparian areas and associated aquatic and terrestrial
insects, as well as by the downstream degradation of these resources likely to be caused
by the project.
In addition to Indiana Bats, the USFWS was recently petitioned to list two other bat
species, the Eastern Small-footed Bat and Northern Long-eared Bat, under the
Endangered Species Act (Center for Biological Diversity 2010). Both species occur in
the vicinity of the Spruce No. 1 Mine, and both were captured during mist net surveys at
the project site. Like Indiana Bats, these two species are susceptible to population-level
impacts from White Nose Syndrome (WNS), which has devastated some populations of
eastern bats. If WNS affects West Virginia bats as it has bats in other states, and if large
die-offs occur, it will further complicate the already complex challenge of conserving bat
species. Previous mining and logging activities and forest loss have also been identified
as having adverse affects on bat populations. Traditionally used reclamation techniques,
many of which are designed to minimize erosion and provide backfill stability, are
incompatible with re-establishment of trees necessary for successful roosting by bats.
Such reclamation techniques have the potential to further stress bat populations.
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In addition to bats, forest habitat loss associated with the project could have substantial
effects on other mammals that depend upon forest resources. While some mammal
species are habitat generalists and will not be greatly affected by conversion to a
grassland environment, others require forest habitats for protection from predation,
foraging and specific habitat needs. These species will likely be adversely affected by
the project. Additionally, healthy forested riparian areas can be important habitat for
small mammals that feed on insects and small amphibians, as they are proximate to
aquatic food sources. As such, insectivorous small mammals that feed on larval aquatic
insects, emergent adult aquatic insects, and salamanders will likely be adversely affected
by reduced aquatic macroinvertebrate abundances and increased levels of selenium in
their prey.
VI.B. Environmental Justice
Environmental Justice is the fair treatment and meaningful involvement of all people
regardless of race, color, national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and policies. EPA
has this goal for all communities and persons across this Nation. Executive Order 12898
directs: "To the greatest extent practicable... each Federal agency shall make achieving
environmental justice part of its mission by identifying and addressing as appropriate,
disproportionately high and adverse human health or environmental effects of its
programs, policies, and activities on minority populations and low-income
populations..."
According to the 2000 United States Census, Spruce No. 1 Mine is located in a census
block group that contains 335 people. A census block group is a geographical unit used
by the U.S. Census Bureau (Bureau) that is between a census tract and a census block in
size and scale. It is the smallest geographical unit for which the Bureau publishes data.
Census block groups generally contain between 600 and 3,000 people, with a target size
of 1,500 people.
Spruce No. 1 Mine is located in a census block group where the average per capita
income is $15,411. This is more than $6,000 less than the national average of $21,587
and more than $1,000 less than the West Virginia state average of $16,477. The average
median family income is also almost $13,000 less than the national average of $52,029.
Moreover, 24% of the residents of Logan County live below the poverty line, which also
exceeds state and national averages. Studies have highlighted that, despite the economic
benefits provided by coal extraction, coal-producing counties in Central Appalachia
continue to have some of the highest poverty and unemployment rates in the region
(Mcllmoil and Hansen 2010).
The Corps included a discussion of environmental justice in the Spruce No. 1 EIS.
However, as noted in comment letters in June and October 2006, EPA's environmental
justice analysis indicates that there may be a disproportionately high and adverse impact
on the low-income population affected by the mining activity. Additionally, EPA
remains concerned that the local community did not have the necessary information, or
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the opportunity, to meaningfully participate in the EIS process. Specifically, EPA is
concerned the community was not informed when changes were made to different aspects
of the mine project during the permitting and EIS process and therefore was not able to
meaningfully comment on the final aspects of the mine.
The mountains affected by Spruce No. 1 Mine are an important cultural resource for
many residents. In many cases the mountains have helped define their culture, and they
are an integral part of their daily lives. For example, the mountain ridges of southern
West Virginia have for over two centuries been viewed largely as a "commons", where
local residents have gathered wild medicinal herbs such as American Ginseng (Panax
quinquefolius) and Goldenseal (Hydrastis canadensis) (Hufford 2003). In many cases,
collection of these wild herbs provides much needed extra income to local communities
during times of unemployment or economic hardship (Bailey 1999). Removing these
mountains may have profound cultural changes on the residents in the area, and so it is
important that cultural impacts be considered as well.
EPA considers action pursuant to § 404(c) to be within the scope of the policy directive
of Executive Order 12898. A § 404(c) action has the potential to affect human health or
the environment of low-income or minority populations. Accordingly, EPA evaluates
environmental justice concerns when undertaking an action pursuant to § 404(c). In this
case, EPA Region III conducted a public hearing on May 18, 2010 and received
comments both orally and in writing. EPA has considered that members of the
community expressed concern about loss of jobs and tax revenue (supporting local
communities and schools) in the event that EPA's § 404(c) action would preclude any
activities authorized at the Spruce No. 1 Mine. At the same time, EPA also has
considered that members of the community have expressed concern regarding the adverse
environmental and cultural aspects of the project described above. EPA also has received
a petition from a variety of stakeholders raising concerns related to environmental justice
issues associated with mountaintop mining.
In order to satisfy Executive Order 12898, EPA has considered whether there would be
".. .disproportionately high and adverse human health or environmental effects..." from
its regulatory action. The scope of the inquiry for purposes of EPA's environmental
justice analysis is directly tied to the scope of the regulatory action that EPA is taking. In
the context of a Clean Water Act § 404(c) action, EPA is authorized to prohibit, restrict,
or deny specification (or withdraw specification) of the discharge of dredged or fill
material at defined sites in waters of the United States whenever it determines that use of
such sites for disposal would have an unacceptable adverse impact on "municipal water
supplies, shellfish beds, fishery areas (including spawning and breeding areas), wildlife,
or recreational areas."
Accordingly, EPA has considered the potential effects on municipal water supplies,
shellfish beds, fishery areas, wildlife and recreational areas (all § 404(c) resources) of the
project site in its environmental justice analysis within the context of this Final
Determination under § 404(c). EPA has also considered whether the effects, if any, of
EPA's § 404(c) action on the § 404(c) resources will have a "disproportionately high and
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adverse human health or environmental [effect]" on "minority populations and low-
income populations" of the project area.
EPA concludes, after performing the EJ analysis contemplated in Executive Order 12898
to the greatest extent practicable, and incorporating public comment, that this Final
Determination under § 404(c) will not have a disproportionately high and adverse human
health or environmental effect on the low-income and minority populations of the project
area. EPA notes that the scope of this Final Determination is limited to withdrawal of
specification of Pigeonroost Branch and Oldhouse Branch as disposal sites for the
discharge of dredged or fill material for the construction of valley fills and sediment
ponds associated with the Spruce No. 1 Mine as authorized, as well as the prohibition of
future discharges, within the defined area constituting Pigeonroost Branch, Oldhouse
Branch and their tributaries, associated with surface coal mining that would be expected
to result in a nature and scale of adverse chemical, physical, and biological effects similar
to the Spruce No. 1 mine. This action neither prohibits nor authorizes coal mining.
VI.C. Public Health
Interest in the overall environmental and human health effects from mountain top mining
has been increasing during recent years. A growing body of research suggests that health
disparities are not uniformly distributed across the Appalachian region, but instead are
concentrated in areas where surface coal mining activity takes place (Hendryx et al. 2007,
2008, Hendryx 2008, Hitt and Hendryx 2010, Hendryx and Zullig 2009). This body of
research examined study areas that include the Spruce No. 1 Mine project area. EPA has
reviewed these studies, which sought to evaluate whether associations between surface
coal mining and health exist. These studies do not provide direct assessments of
environmental air and water quality in mining areas in relation to individual exposures
and health outcomes. More comprehensive research to develop these direct assessments,
including environmental chemical analyses and biological monitoring, would require
significantly greater study than is appropriate for this Final Determination.
However, the authors of these studies identify significant associations between surface
coal mining activity and a variety of health disparities. They indicate that mortality rates
in Appalachian coal mining regions for chronic respiratory, cardiovascular, and kidney
disease, and for some forms of cancer including lung cancer are disproportionately
elevated when compared to other regions (Hendryx 2008, Hendryx et al. 2007, 2008,
Hendryx and Zullig 2009). One study also demonstrates that higher cancer mortality
rates are strongly associated with lower WVSCI scores even after accounting for
smoking, poverty, and urbanization (Hitt and Hendryx 2010). Another study spatially
autocorrolates cancer mortality with surface mining intensity as measured by West
Virginia permit boundaries after accounting for the same factors (Hendryx et al. 2010).
These studies by their nature could not and do not establish any causal linkage between
surface coal mining and these elevated rates of adverse health effects, but because they
point to significant associations between surface coal mining and elevated rates of
adverse health impacts, the results warrant more research using rigorous epidemiological
methods. The existing body of literature suggests that various negative health outcomes
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are not the result of a single exposure, but may reflect chronic exposures to multiple
environmental contaminants, both air and/or water, which will vary for each individual.
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VII. Conclusions and Final Determination
Based on the foregoing analyses, EPA Region Ill's Recommended Determination, and
upon consideration of the public comments received in response to EPA Region Ill's
Proposed and Recommended Determinations, EPA has determined that discharges of
dredged or fill material to Pigeonroost Branch and Oldhouse Branch and their tributaries
for the purposes of construction, operation, and reclamation of the Spruce No. 1 Mine as
authorized by DA Permit No. 199800436-3 (Section 10: Coal River) will have
unacceptable adverse effects on wildlife. DA Permit No. 199800436-3 (Section 10: Coal
River) authorizes construction of valley fills and sediment ponds and other discharges
into Pigeonroost Branch and Oldhouse Branch and their tributaries that will bury
approximately 6.6 miles of high quality headwater streams. Pigeonroost Branch and
Oldhouse Branch support diverse and healthy biological communities comparable to
nearby White Oak Branch, recognized by the WVDEP as supporting least-disturbed,
reference quality conditions. Pigeonroost Branch and Oldhouse Branch represent streams
within the larger Headwaters Spruce Fork sub-watershed and Coal River sub-basin that
remain relatively free of water quality degradation. As such, Pigeonroost Branch and
Oldhouse Branch are valuable in and of themselves and provide essential habitat for
wildlife species within the Headwaters Spruce Fork sub-watershed and Coal River sub-
basin.
As authorized by the DA Permit, discharges to Pigeonroost Branch and Oldhouse Branch
will bury wildlife that live in those streams or within the footprint of the valley fills.
Other wildlife will lose important headwater stream habitat on which they depend for all
or part of their life cycles. EPA has determined that those impacts alone are unacceptable
adverse impacts because of the miles of stream destroyed, the rarity of those streams, and
the importance of those streams and their wildlife to the watershed. Unacceptable
adverse effects on wildlife from the activities authorized by the permit will not be limited
to direct burial of wildlife and significant loss of wildlife habitat. Burial of Pigeonroost
Branch and Oldhouse Branch would also result in unacceptable adverse effects on
wildlife downstream caused by the removal of functions performed by the buried
resources and by transformation of the buried areas into sources that contribute
contaminants to downstream waters. In addition, authorized discharges to Pigeonroost
Branch and Oldhouse Branch would contribute to conditions that would support blooms
of golden algae that release toxins that kill fish and other aquatic life. Thus, EPA has
also determined that these adverse impacts on downstream wildlife by themselves are
unacceptable.
In addition, these adverse impacts are not in compliance with the requirements of the
Clean Water Act (CWA) and EPA's implementing regulations under § 404(b)(1). EPA
has determined that the impacts described above may be avoidable and the permittee has
failed to demonstrate that there are no less environmentally damaging alternatives; the
discharges associated with the Spruce No. 1 Mine will cause or contribute to significant
degradation of waters of the United States (especially when considered in the context of
the significant cumulative losses and impairment of streams across the Central
Appalachian ecoregion); and the compensatory mitigation will not adequately offset the
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impacts to Pigeonroost Branch and Oldhouse Branch. These failures to comply with the
Guidelines serve to strengthen EPA's judgment about the unacceptability of the
significant adverse impacts that will occur.
EPA also notes that USFWS, in its comments on both the Proposed and Recommended
Determinations, concurred with EPA Region Ill's conclusion that the project, as
authorized, would result in unacceptable adverse effects on wildlife and that this
conclusion is supported by the available scientific information. USFWS also notes that it
has consistently expressed concerns regarding the toss of headwater streams and adjacent
riparian and terrestrial habitats associated with the Spruce No. 1 Mine, as well as its
likely impacts on downstream water quality, aquatic organisms, and terrestrial and
aquatic wildlife that depend on those resources.
Finally, EPA notes that this Final Determination is a case-specific determination based on
the facts and circumstances presented here. EPA's § 404(c) authority does not require a
finding that the particular circumstances are unique, rather it requires a finding of
unacceptable adverse impacts to protected resources. EPA's authority is discretionary,
and the agency evaluates unacceptability based on the context of the adverse impacts,
including their relative size and whether or not it is an impact the aquatic resource can
incur without significant adverse environmental effects. Similarly, EPA's decision to
undertake a § 404(c) action after a permit had been issued is also a case-specific one and
does not threaten the tens of thousands of permits and authorizations that are issued by
the U.S. Corps of Engineers every year. This determination was initiated based on the
substantial number of project-specific considerations focusing on important headwater
stream miles impacted in a stressed watershed where a vast majority of the impacts
authorized by the permit had not occurred because of third-party litigation. This is a rare
circumstance and the fact that this is only the second final determination following permit
issuance in the past 40 years demonstrates that EPA does not undertake such an action
lightly.
Accordingly, pursuant to § 404(c) of the Clean Water Act and its implementing
regulations at 40 CFR Part 231 and for the reasons set forth herein, it is my determination
that the specification embodied in DA Permit No. 199800436-3 (Section 10: Coal River)
of Pigeonroost Branch and Oldhouse Branch, and their tributaries, as disposal sites for
discharges of dredged or fill material for construction, operation, and reclamation of the
Spruce No. 1 Mine be withdrawn. This Final Determination also prohibits the
specification of the defined area constituting Pigeonroost Branch, Oldhouse Branch and
their tributaries for use as a disposal site associated with future surface coal mining that
would be expected to result in a nature and scale of adverse chemical, physical, and
biological effects similar to the Spruce No. 1 mine.
Pe
A: ator
Office of Water
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