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Recommended Determination of the U.S. Environmental Protection Agency
Region III Pursuant to Section 404(c) of the Clean Water Act
Concerning the Spruce No. 1 Mine, Logan County, West Virginia
U.S. Environmental Protection Agency
Region III
September 24, 2010
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TABLE OF CONTENTS
I. Executive Summary 6
II. Introduction 8
III. Background
A. Section 404(c) Procedures 9
B. Project Description 10
C. Project History 15
IV. Characteristics and Functions of the Impacted Resources 18
A. Watershed and Stream Condition
1. Pigeonroost Branch and Oldhouse Branch 19
2. The Spruce Fork Sub-watershed and the
Coal River Sub-basin 21
B. Wildlife 24
1. Invertebrates 26
2. Salamanders 29
3. Fish 31
4. Birds 32
5. Bats 33
C. Summary 35
V. Basis for Recommended Determination 35
A. Section 404(c) Standards 35
B. Adverse impacts from specification of Pigeonroost Branch
and Oldhouse Branch as disposal sites for discharges of
dredged and/or fill material from the Spruce No. 1 Mine 36
1. Effects on water chemistry 38
a. Selenium 38
b. Total Dissolved Solids/Conductivity 47
2. Impacts to Wildlife 51
a. Macroinvertebrates 51
i. Comparison of macroinvertebrates 51
ii. Observed/Expected index 55
iii. Comparison of WVSCI scores 57
b. Salamanders 58
c. Fish 60
i. Potential to promote the growth of
golden algae 60
ii. Increased exposure to selenium 62
iii. Other potential impacts to fish 62
d. Water-dependent birds 63
3. Summary 64
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C. Mitigation is not likely to offset anticipated impacts 65
1. Proposed mitigation likely will not replace high quality
resources in Pigeonroost Branch and Oldhouse Branch 66
2. The compensatory mitigation plan is based upon a
misclassification of the impacted resources 67
3. The compensatory mitigation plan lacks an adequate
functional assessment 67
4. Conversion of erosion control channels would be unlikely to
successfully replace the impacted resources 69
5. The compensatory mitigation plan does not account for the
loss of ecological services arising from the interrelationship
of the headwater streams and the surrounding terrestrial
ecology 69
D. Summary 70
VI. Other Considerations 70
A. Impacts From Activities Dependent Upon Specification of
Pigeonroost Branch and Oldhouse Branch as Disposal Sites
for the Construction of Valley Fills and Sedimentation Ponds
for the Spruce No. 1 Mine 71
1. Migratory Birds 71
2. Bats 73
B. Environmental Justice 73
C. Public Health 76
D. Cumulative Impacts 78
VII. Conclusions and Recommended Determination 81
Appendices
Appendix 1
Appendix 2
Appendix 3
Appendix 4
Appendix 5
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FIGURES
1. Spruce No. 1 Mine compared to downtown Pittsburgh, Pa. 11
2. Spruce No. 1 Mine location 12
3. Spruce No. 1 Mine and associated valley fills 14
4. Spruce Fork sub-watershed and the Coal River sub-basin 22
5. Central Appalachian Eco-Region 25
6. TNC biodiversity hotspots 26
7. Spruce No. 1 Mine and the Dal-Tex Mine operation 37
8. Spruce No. 1 Mine and the Dal-Tex Mine operation 39
9. Selenium trends (January 2007 to June 2010) for NPDES Permit
WV1011120-Outlet 012 42
10. Selenium trends (January 2007 to June 2010) for NPDES Permit
WV1004956-Outlet 015 43
11. Selenium trends (January 2007 to June 2010) for NPDES Permit
WV1004956-Outlet 001 44
12. Selenium concentrations from the discharge from Outlet 028 Spruce
No. 1 Mine 45
13. Measure of biological integrity; O vs. E 55
14. Illustration of the types of disturbance currently found in the Coal
River sub-basin 80
15. Coal River watershed: mining and conductivity 82
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TABLES
1. Presence/absence of mayfly genera in the permit area 28
2. Presence/absence of stonefly genera in the permit area 29
3. Selenium concentrations (ug/I) near Spruce No. 1 project area 41
4. Total Recoverable Selenium (|ig/L) for Outlets 015, 017 and 028 for
NPDES Permit WV1017021 46
5. Average conductivity and sulfate values for streams in project area 50
6. List of macroinvertebrate taxa identified from Spruce project and Dal-Tex 54
7. Summary of WV O/E null model results for the Spruce No. 1 project area 57
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I. Executive Summary
The Spruce No. 1 Mine as currently authorized Department of the Army (DA) Permit No.
199800436-3 (Section 10: Coal River), is one of the largest mountaintop mining projects
ever authorized in West Virginia. If it is fully constructed, it will disturb approximately
2,278 acres and bury approximately 7.48 miles of streams.
As the phrase suggests, "mountaintop mining" involves removing the top of a mountain
in order 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, soil, and debris (called "spoil") that formerly had composed the portions of
the mountain above and immediately below the coal seams. The fractured material is
larger in volume than when it was intact, fused bedrock within the mountain. The
amount of spoil that may be placed on the mined area is also limited due to stability
concerns. Hence mountaintop mining generates large quantities of "excess spoil" (i.e.,
volumes of rock, soil, and debris that cannot be placed back in the mined area) that are
deposited in valleys, thereby burying streams that flow through those valleys. In this
case, if the Spruce No. 1 Mine is constructed as currently authorized, it will bury
headwater stream ecosystems under 110 million cubic yards of excess spoil.
The Spruce No. 1 Mine has a lengthy and complex history. The DA Permit No.
199800436-3 (Section 10: Coal River) (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 sedimentation structures, and other
discharges of fill material to the Right Fork of Seng Camp Creek, Pigeonroost Branch,
Oldhouse Branch, and their tributaries. Due to litigation and an agreement with
environmental groups, operations have been limited to the Seng Camp Creek watershed
and as part of that agreement one valley fill is partially constructed.
Throughout review of the project, the U.S. Environmental Protection Agency has raised
concerns regarding adverse impacts to the environment. Additionally, data and
information have become available since permit issuance, which have confirmed EPA's
earlier concerns regarding the potential for adverse water quality impacts, the potential
for cumulative impacts, the availability of further avoidance and minimization measures
and problems with the proposed mitigation measures.
On April 2, 2010, the U.S. Environmental Protection Agency Region III (EPA Region III
or 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 and/or fill material for the construction of the Spruce No. 1 Mine. Region III
took this step because it believed, despite the regulatory review intended to protect the
environment, that discharges authorized by DA Permit No. 199800436-3 (Section 10:
Coal River) could destroy wildlife habitat and cause significant degradation of
downstream aquatic ecosystems and therefore could have unacceptable adverse effects on
wildlife.
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A public hearing was conducted on May 18,2010. Region III received over 100 oral
comments and over 50,000 written comments both supporting and opposing its Proposed
Determination. Region III has carefully considered the comments received and
conducted additional analysis, which will be described herein, before rendering this
Recommended Determination.
Based on the foregoing analysis and upon consideration of the public comments received
in response to Region Ill's proposed determination, Region III believes that discharges of
dredged and/or fill material to Pigeonroost Branch and Oldhouse Branch for the purpose
of constructing the Spruce No. 1 Surface Mine as currently authorized by DA Permit
would likely have unacceptable adverse effects on wildlife. For this reason, it is the
recommendation of the Regional Administrator 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 and/or fill material for construction of
the Spruce No. 1 Surface Mine be withdrawn.
The goal of protecting water quality, plant and animal habitat, navigable waters, and
other downstream resources requires as its first step the protection of headwater streams.
Headwater streams perform services similar to those performed by capillaries in the
human circulatory system. They are the largest network of waterbodies within our
ecosystem and provide the most basic and fundamental building blocks to the remainder
of the aquatic and human environment. As set forth herein, Pigeonroost Branch and
Oldhouse Branch represent some of the very few remaining streams within the Spruce
Fork sub-watershed and the Coal River sub-basin that represent "least degraded"
conditions. They support diverse and healthy biological communities. As such, they are
valuable in and of themselves and within the context of the Spruce Fork sub-watershed
and Coal River sub-basin.
As currently authorized by DA Permit discharges of excess spoil to Pigeonroost Branch
and Oldhouse Branch would bury those streams and their tributaries and the wildlife that
live within them. Other wildlife would lose important headwater stream habitat on which
they depend for all or part of their lifecycles.
In addition, the construction of valley fills, sedimentation ponds and other discharges into
Pigeonroost Branch and Oldhouse Branch authorized by the DA Permit would likely
have adverse impacts on downstream waters and wildlife living outside the footprint of
the fill. These adverse impacts would be 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, discharges to Pigeonroost
Branch and Oldhouse Branch as currently authorized would likely contribute to
conditions that would support blooms of golden algae that release toxins that kill fish and
other aquatic life.
Based on these impacts, Region III has determined that discharges to Pigeonroost Branch
and Oldhouse Branch as authorized by DA Permit No. 199800436-3 (Section 10: Coal
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River) would likely have unacceptable adverse effects on wildlife. Particularly in light of
the high quality of the impacted resources, it is unlikely that the compensatory mitigation
plan (CMP) for the project would offset these impacts. The proposed on-site created
streams would be unlikely to replace the physical, chemical, and especially biological
functions of Pigeonroost Branch and Oldhouse Branch.
There are other impacts that, while not forming the basis of the Recommended
Determination, are of concern to the Region. To the extent that discharge of excess spoil
outside jurisdictional waters, deforestation, and other activities associated with the project
depend upon specification of Pigeonroost Branch and Oldhouse Branch as disposal sites,
there are likely to be other adverse impacts from those dependent activities. In addition,
impacts from the project will contribute to cumulative impacts from multiple surface
mining activities in the Coal River sub-basin. There are also concerns regarding
environmental justice.
II. Introduction
This document explains the basis for the EPA Region III recommendation 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 (Spruce No. 1 Mine or the project) as currently authorized by DA Permit
No. 199800436-3 (Section 10: Coal River)(DA Permit or permit) (See Figure 3). While
the DA Permit also authorizes construction of valley fills and other discharges to the
Right Fork of Seng Camp Creek and its tributaries, Region III is not recommending
withdrawal of specification of those waters in part because some of those discharges have
already occurred.
EPA Region III is recommending that action be taken under section 404(c) of the Clean
Water Act (CWA) because the Region believes that the discharges to Pigeonroost Branch
and Oldhouse Branch and their tributaries for the purpose of constructing Spruce No. 1
Mine as currently authorized by the DA Permit would likely have unacceptable adverse
effects on wildlife. Pigeonroost Branch and Oldhouse Branch and their tributaries are
some of the last remaining streams within the Spruce Fork sub-watershed and the larger
Coal River sub-basin that represent "least degraded" 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 within the context of the overall Spruce Fork sub-watershed and
Coal River sub-basin. The Spruce No. 1 Mine as currently authorized would bury
virtually all of Oldhouse Branch and its tributaries and much of Pigeonroost Branch and
its tributaries under excess spoil generated by mountaintop removal surface coal mining
operations. Region III does not believe that the anticipated effects of the burial of all of
Oldhouse Branch and much of Pigeonroost Branch will be offset by the proposed
mitigation because it will not replace the chemical, physical and biological functions of
the lost aquatic resources.
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In addition, this recommendation considers the adverse impacts from mining-related
activities, such as deforestation, that are associated with the discharge of excess spoil to
areas outside the jurisdictional waters to the extent that these activities necessarily depend
upon specification of Pigeonroost Branch and Oldhouse Branch for the construction of
valley fills and sedimentation ponds. Moreover, the discharges associated with the
Spruce No. 1 Mine will contribute to a cumulative adverse impact to the Spruce Fork
sub-watershed, the Little Coal River watershed and the Coal River sub-basin. Finally, the
Region continues to be concerned that potential issues related to disproportionate and
high impact on the local population from construction of the Spruce No. 1 Mine have not
been fully considered.
The next Section provides an overview of the Section 404(c) procedures, describes the
Spruce No. 1 Mine as authorized, and summarizes the history of the project. Section IV
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 currently authorized. Consistent
with Section 404(c), this discussion will focus on impacts to wildlife. Section VI will
discuss other considerations, including impacts from activities associated with the Spruce
No. 1 Mine that do not include direct discharges of dredged and/or fill material to
jurisdictional waters but which may depend upon authorization of such discharges, and
that are likely to cause direct and cumulative impacts to the environment and to local
communities. Section VII describes EPA Region Ill's conclusions and recommendations.
HI. Background
A. Section 404(c) Procedures
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, Section 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 section 404(b) of
the CWA, 33 U.S.C. § 1344(b) (Section 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 Section 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
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on one or more of the aforementioned resources, he may initiate the section 404(c)
process by notifying the U.S. Army Corps of Engineers (Corps) 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
in the Federal Register of his Proposed Determination, soliciting public comment and
offering an opportunity for a public hearing.
Following the public hearing and the close of the comment period, the Regional
Administrator will decide whether to withdraw the Proposed Determination or prepare a
Recommended Determination. 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, he then forwards it and the
administrative record compiled in the Regional Office to the Assistant Administrator for
Water at EPA Headquarters. The Assistant Administrator makes the Final Determination
affirming, modifying, or rescinding the Recommended Determination.
This document represents the third step in the process and explains the basis for EPA
Region Ill's Recommended Determination.
B. Project Description
The Spruce No. 1 Mine as currently 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 currently 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 1).
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Spruce Mine No. i Permitted Boundary
Superimposed Over the City of Pittsburgh, PA
0 3.125 025 0-5 375
Airfhor: D. Evans EPA R3 EAID SeptQnber, 2010
Figure I Spruce No, I Mine compared to downtown Pittsburgh, PA.
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The project as authorized 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 2). The mine site is
located approximately two miles northeast of Blair, in Logan County, West Virginia in
the Central Appalachian ecoregion (Bryce, S.A., J.M. Omernik, and D.P. Larsen. 1999).
http://www.epa.gov/wed/pages/ecoregions.htrn
Figure 2: Spruce No. 1 mine location
According to the Environmental Impact Statement (EIS) prepared by the Corps in 2006
(Spruce No. 1 EIS) for the project, the Spruce No. 1 project 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.
As the phrase suggests, "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,
soil and debris (called "spoil") that formerly had composed the portions of the mountain
above and immediately below the coal seam. The fractured material is larger in volume
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than when it was intact, fused bedrock within the mountain. The amount of spoil that
may be placed back on the mined area is also limited due to stability concerns. Hence
mountaintop mining generates large quantities of "excess spoil" that cannot be placed
back in the mined area. The "spoil" is then deposited in valleys, thereby burying streams
that flow through those valleys.
The Spruce No. 1 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, about 501 million cubic yards of
overburden material. Nearly 391 million cubic yards of spoil would be placed within the
mined area (i.e., back on the mountain) 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 would be impacted by the project as
authorized). Specifically, the DA 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 sedimentation ponds, mined-through areas and
other fills in waters of the U.S (Figure 3). A detailed discussion of Spruce No. l project
can be found in the Spruce No. 1 EIS on pages 2-35 through 2-61.
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Dal-Tex
Mine Complex
Spruce
No. 1 Mine
PigeonroostBrar ch
Trace Branch
ouse Branch
White Oak Branch los*t
Da- lex M me Complex
Spruce No 1 Mine
J W Counties
NH024k Hydro
Figure3. Spruce No. 1 Mine and associated valleyfills.
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 (1.83 acres) of ephemeral stream channels (all permanent),
• 28,698 linear feet (6.12 acres) of intermittent stream channels
o (26,184 linear feet [5,77 acres] permanent
o 2,514 linear feet [0.35 acre] temporary)
• 165 linear feet (0.034 acre) of perennial stream channel (all temporary),
While Region III is providing the foregoing summary from the SMCRA Permit S-5013-
971BR for descriptive purposes, as set forth in more detail in Section V.C.2, below,
Region III believes that the description provided in the Spruce No. 1 SMCRA Permit and
in the Spruce No. 1 EIS incorrectly characterizes stream resources that will be impacted,
as described further below.
The project as authorized also includes compensatory mitigation to offset adverse project
impacts. EPA's concerns with the November 2006 compensatory mitigation plan (CMP)
submitted by the permittee will be described in Section V.C.
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C. Project History
This project has a lengthy and complex regulatory history. The Spruce No. 1 Mine was
originally advertised as operated by Hobet Mining Inc., a subsidiary of Arch Coal,
Inc.1 The project as originally proposed in 1998, was larger than the currently authorized
project and would have directly impacted a total footprint area of 3,113 acres and 57,755
linear feet (more than ten miles) of stream (not including indirect impacts to remaining
downstream waters). At that time, the Corps tendered and ultimately withdrew a
nationwide permit for the project, and the permittee, Mingo Logan, advised the Corps it
would submit an individual permit application. An Environmental Impact Statement was
prepared for the Spruce No. 1 project 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 also launched events that led to the Interagency Mountaintop
Mining/Valley Fills in Appalachia Programmatic Environmental Impact Statement which
was finalized in October 2005 (PEIS). The PEIS is available at
www.eoa.gov/Region3/mtntop/eis2005.htm.
An initial 2002 Spruce No. 1 Draft Environmental Impact Statement (EIS) considered a
proposed project that was similar in scope and size to the original project described
above. Region Ill's review of the 2002 Draft Environmental Impact Statement found
gaps in the analyses of the mine and related adverse environmental impacts. Region III
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. EPA Region III, in a letter dated August 12,2002, indicated the
EIS contained inadequate information for public review and for decision-makers.
In 2006, a revised Spruce No. 1 Draft EIS was prepared. At that time, the project was
reconfigured to reduce impacts. The Mingo Logan, revised the mine plan to eliminate
construction of a valley fill in White Oak Branch, a high quality stream (see Section
IV.A. below) and the project area was reduced from 3,113 to 2,278 acres with direct
stream impacts reduced to 7.48 miles.
In our June 16,2006, comment letter on the 2006 Draft EIS, EPA Region III 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, including potential adverse impacts to
water quality (specifically, the potential to discharge selenium and the known correlation
between similar mining operations and degradation of downstream aquatic communities),
uncertainties regarding the proposed mitigation, need for additional analysis of potential
environmental justice issues, and lack of study related to the cumulative impact of
multiple mining operations within the Little Coal River watershed. EPA continued to
1 Effective December 31,2005, Arch Coal, Inc. transferred Spruce No. 1 Mine
holdings and responsibilities to its Mingo Logan Coal Company (Mingo Logan)
subsidiary.
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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 project were also raised by the U.S. Fish and
Wildlife Service (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 designed to convey water that would not replace the streams'
lost ecological services.
The Corps issued the Spruce No, 1 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. In a letter dated November 30,2006, EPA offered its
assistance to the Corps in developing a stream functional assessment protocol and
willingness to work with Mingo Logan through EPA's Conflict Prevention and
Resolution Center to develop a cumulative impact assessment and watershed restoration
plan for the Little Coal River watershed.
Despite EPA and USFWS concerns on January 22,2007, the Corps issued a 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 and/or fill material from the Spruce No. 1
Mine.
On January 30, 2007, a number of environmental groups filed a complaint against the
Corps in federal district court challenging its decision to issue the permit. That litigation
was stayed for a 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., 556 F. 3d 177
(4th Cir. 2009). Following that decision, the litigation related to the Spruce No. 1 permit
was reactivated. The litigation was then stayed again until October 22,2010 following
Region Ill's publication of its Proposed Determination on April 2,2010.
In early 2007, Mingo Logan commenced limited operations at Spruce No. 1 pursuant to
their 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 in the Seng Camp Creek
drainage area, including construction of one valley fill (valley fill 1 A). Under the
agreement, Mingo Logan must give plaintiffs 20 days notice before expanding operations
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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 the West Virginia Department of Environmental
Protection (WVDEP). These data have been reviewed by Region III.
While the litigation was pending, the scientific literature beagn to reflect a growing
scientific consensus of the importance of headwater streams, a growing concern about the
adverse effects of mountaintop removal mining, and concern that impacted streams
cannot easily be replaced. Many of these studies are cited in this Recommended
Determination. 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 April 1, 2010, the U.S. Environmental Protection Agency's
Office of Research and Development made available for public comment two reports
titled: The Effects ofMountaintop Mines and Valley Fills on Aquatic Ecosystems of the
Central Appalachian Coalfields and A Field-Based Aquatic Life Benchmark for
Conductivity in Central Appalachian Streams. On the same day, EPA also published
interim guidance titled: Guidance on Improving EPA Review of Appalachian Surface.
Coal Mining Operations under the Clean Water Act, National Environmental Policy Act,
and the Environmental Justice Executive Order?
On September 3, 2009, Region III requested 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 of Engineers stated that it would
not reconsider the permit authorization. As a result, Region III initiated the Clean Water
Act Section 404(c) process on October 16,2009. Region III communicated with
representatives of Mingo Logan and the Corps both in person and by telephone and
electronic mail on several occasions to determine whether corrective action would be
taken to address Region Ill's concerns. On April 2, 2010, Region III published in the
Federal Register a Proposed Determination to withdraw specification of Pigeonroost
Branch and Oldhouse Branch pursuant to CWA section 404(c). Region III solicited
public comments on the Proposed Determination and held a public hearing in Charleston,
West Virginia on May 18,2010. Region III received over 50,000 comments on the
Proposed Determination. Of these approximately 70% of comment letters submitted to
the docket generally supported EPA's Proposed Determination while 65% of public
hearing participants generally opposed EPA's Proposed Determination.
2
Issuance of this guidance document is mentioned here solely for purposes of describing recent events
related to EPA's understanding of impacts from Appalachian surface coal mine activities, The guidance
provides a framework for EPA review of certain proposed surface coal mining applications. This
Recommended Determination is based upon Region Ill's review of scientific and other information
regarding the likely effects from the discharges to Pigeonroost Branch and Oldhouse Branch as authorized
by DA Permit No. 199800436-3 (Section 10: Coal River). Region III did not rely upon the April 1
Guidance in making its Recommended Determination.
17
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In addition to its DA Permit No. 199800436-3 (Section 10: Coal River), the project
received authorizations from the WVDEP, including authorization pursuant to the State's
surface mining program approved under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA), 30 U.S.C. 1201-1328 (SMCRA permit), and a National Pollutant
Discharge Elimination System (NPDES) permit for discharges of pollutants pursuant to
Section 402 of the Clean Water Act, 33 U.S.C. 1342. WVDEP also issued a Clean Water
Act Section 401 water quality certification.
IV. Characteristics and Functions of the Impacted Resources3
The resources that will be impacted by the Spruce No. 1 Mine include Central
Appalachian headwater stream ecosystems in Pigeonroost Branch and Oldhouse Branch.
Those waters have surface connection and flow to Spruce Fork, which in turn flows to the
Little Coal River, and the Coal River. Because of the connectivity between headwater
systems and downstream waters, Spruce Fork, the Little Coal River and the Coal River
also would be likely to be impacted by discharges to Pigeonroost Branch and Oldhouse
Branch. Accordingly, the characteristics and functions of the resources that will be
impacted by discharges of fill material associated with the Spruce No. 1 Mine are best
viewed from the perspective of the ecologic functions performed by Appalachian
headwater stream ecosystems and within the context of the larger Spruce Fork sub-
watershed and Coal River sub-basin.
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 like the
capillaries within the human circulatory system. Headwater streams form the largest
network of waterbodies within the ecosystem and, as the early stages of the river
continuum, provide the most basic and fundamental building blocks to the remainder of
the aquatic and human environment. Appalachian headwaters provide habitat for
wildlife. They also are a locus of significant interface between the river system and the
terrestrial environment. Appalachian headwater streams and their wildlife inhabitants
convert organic matter from the surrounding landscape (such as leaf litter) and transform
it into nutrients and energy that can be transported and consumed by downstream
3 Region III derives its understanding of the potentially impacted resources and the predicted impacts of the
project from several sources. The Draft (June 2003) and Final (October 2005) Interagency Mountaintop
Mining/Valley Fills in Appalachia Programmatic EIS (PEIS) represent an important inter-agency effort
designed to inform more environmentally sound decision-making for future permitting of mountaintop
mining/Valley fills. It 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 project area and the Coal River subbasin. EPA also consulted 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. 1 EIS, and other sources of 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. Appendices to this Recommended Determination (RD) contain more detailed specific data,
analysis and an index of references.
18
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ecosystems. They also play an important role in storing, retaining and transporting
nutrients, organic matter, and sediment. In addition they perform hydrologie functions
related to downstream flow regimes, moderating flow rate and temperature, "Value of
Headwater Streams: Results of a Workshop" from PEIS on MTM/VF (EPA 2003:
http ://www.epa.gov/region03/mtntop/pdf/appendices/d/value-of-headwater-
streams/headwater.pdf)i Fischenich, J.C. (2006), Functional objectives for stream
restoration. EMRRP Technical Notes Collection (ERDC TN-eMRRP-SR-52 Vicksburg).
As authorized, the Spruce No. 1 Mine would bury under valley fills or impact through
construction of sedimentation ponds substantially all of Oldhouse Branch and its
tributaries and a substantial portion of Pigeonroost Branch and its tributaries, Oldhouse
Branch and Pigeonroost Branch support ecosystems and conditions consistent with "least
degraded" conditions in the Goal River sub-basin. As such, they are valuable in and of
themselves and for the functions they perform within the context of the Spruce Fork sub-
watershed and the Coal River sub-basin.
A. Watershed and Stream Conditions
1, Pigeonroost Branch and Oldhouse Branch
The stream systems that are the subject of this Recommended Determination, Pigeonroost
Branch and Oldhouse Branch, are healthy stream systems supporting diverse aquatic
communities as measured by their benthic macroinvertebrate populations.
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). Freshwater macroinvertebrates, such as mayflies
and stone flies, serve as indicators of ecosystem health, and play a vital role in food webs
and in the transfer of energy in river systems. These organisms convert plant material into
fats and proteins, food sources critical for maintaining healthy fish and amphibian
populations, as well as for foraging terrestrial vertebrates such as birds, bats, reptiles, and
small mammals. In this ecological niche, macroinvertebrates deliver energy and nutrients
along the stream continuum. They also clean excess living and nonliving organic material
from freshwater systems, a service that contributes to the overall quality of the watershed.
Because of these functions, macroinvertebrates are essential organisms within the food
web, supporting the health of the entire aquatic ecosystem.
Macroinvertebrates are also good indicators of watershed health and 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. They are good indicators because they live in the water for all or
most of their life cycle. Macroinvertebrates can be found in all streams, are relatively
stationary and cannot escape pollution. They also differ in their tolerance to the amount
and types of pollution. Macroinvertebrate communities integrate the effects of stressors
over time and some taxa (i.e., taxonomic category or group such as phylum, class, family,
genus, or species) are considered pollution-tolerant and will survive in degraded
conditions. Other taxa are pollutant-intolerant and will die when exposed to certain levels
19
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of pollution. Thus, the composition of tolerant and intolerant (i.e., sensitive)
communities informs scientists about the quality of the water.
In a healthy stream, one would expect to find a high diversity of benthic
macro invertebrate taxa and a large number of different taxa including taxa that are more
sensitive to stressors. Using the mayfly (Insecta: Ephemeroptera) as an example, some
genera of mayfly are more sensitive than others. The presence of a large number of
individuals from the more sensitive mayfly genera indicates good water quality
conditions. Mayflies in particular have long been recognized as important indicators of
stream ecosystem health. Mayflies are a very important part of the native organisms in
Appalachian headwater streams and they routinely make up between 30%-50% of the
insect assemblages in certain seasons. Numerous studies demonstrate that mayfly
community structure reflects the chemical and physical environment of watercourses
(e.g., Barber-James et al. 2008; Bauernfeind & Moog 2000). See Appendix 1 for more detail
on macroinvertebrates as indicators of water quality.
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).4 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 macroinvertebrates 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. Data from EPA, WVDEP, and the
applicant's consultants (Sturm Env. Services, BMI, Inc.) reveal that collectively,
Pigeonroost Branch, Seng Camp Creek, and Oldhouse Branch contain a high number of
mayfly taxa and individuals. A total of 21 genera (Table 2) have been identified from
these three headwater streams indicating these systems offer high water quality and
optimal habitat.
Macroinvertebrate data collected in Oldhouse Branch indicates that the quality of the
macroinvertebrate community in Oldhouse Branch is in the top 5% of all streams in the
Central Appalachia ecoregion. In 1999-2000, EPA collected eighty-five (85)
macroinvertebrate genera in riffle complexes5 of Pigeonroost Branch and Oldhouse
Branch.
With respect to mayfly taxa, as many as nine genera have been collected in Oldhouse
Branch in any one 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 WVDEP. Out of more than 4000
4 The orders Ephemeroptera, Plecoptera and Trichoptera (EPT taxa) contain pollution sensitive groups and
are used by natural resource agencies such as West Virginia Department of Environmental Protection to
assess watershed health.
sRiffle 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.
20
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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 among the 90th percentile in the Central Appalachians and 83rd
percentile statewide from among more than 4000 single-sample observations.
The data are similar for stoneflies. Data compiled from EPA, WVDEP, and the
applicant's consulting firms show that Oldhouse, Pigeonroost, and Seng Camp
collectively yielded 16 genera of stoneflies (Table 3). Oldhouse and Pigeonroost both
had 11 genera. A single collection in Oldhouse by EPA (Spring 2000) had 9 genera of
stoneflies which ranks greater than the 98th percentile of all Central Appalachian streams
sampled by WVDEP (937 samples). This means that only 2% of stream samples in this
ecoregion had more stonefly taxa than Oldhouse within a single sampling event.
Pigeonroost Branch had as many as six stonefly genera in any one season-specific
sample, ranking it at the 83 rd percentile among 937 Central Appalachian streams, and
72 percentile statewide.
Water chemistry data for Pigeonroost Branch and Oldhouse Branch also reflect healthy
streams with little human disturbance. Data from WVDEP indicate that average
conductivity values for the unmined streams on the Spruce No. 1 project area are very
low. Based on the WVDEP dataset (2002-2003), Oldhouse Branch had an average
conductivity level of 90 jiS/cm, which is below that of White Oak Branch, a nearby
reference-quality stream, 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 and 24 mg/1 in
White Oak Branch). Pigeonroost Branch had a conductivity level of 199 jiS/cm and
sulfate level of 99 mg/1. The slightly elevated average conductivity and sulfate values
reflect the relatively small amount of historical mining landuse in the Pigeonroost
watershed.
During the December 2008 to March 2010 time frame, discharge 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 |ig/L.
The single detection of selenium on Oldhouse Branch was 0.9 ng/L during July 2009.
The single detection of selenium on Pigeonroost Branch was 1.9 jig/L during August
2009. These readings are far below West Virginia's numeric chronic water quality
criterion for selenium of 5 (ig/L. These levels are also significantly lower than levels
demonstrated immediately downstream of adjacent mining operations, as described
below.
2. The Spruce Fork Sub-watershed and the Coal River Sub-basin
The Spruce No. 1 mine is located within the larger 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. Oldhouse Branch and Pigeonroost
21
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Branch are important within the context of the larger Coal River sub-basin and Spruce
Fork sub-watershed because they represent some of the few stream systems supporting
least-degraded conditions within those watersheds.
Figure 4 Spruce Fork sub-watershed (12-digit hydrologic unit code (HUC)) and the Coal River sub-
basin (8-digit HUC)
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. 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) change product
for 1992-2001 and WVDEP's Geographic Information System (GIS) mining files, more
than 257 past and present surface mining permits have been issued in the Coal River sub-
basin, which 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 surface mine
permits.
The Spruce Fork sub-watershed, where the project is located, 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
watershed and drains approximately 126.4 square miles. The dominant landuse in the
22
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Spruce Fork watershed is forest. Other important landuse types include urban/residential
and barren/mining land. The Spruce Fork sub-watershed has been impacted by past and
present surface mining activity. According to WVDEP Division of Mining and
Reclamation permit maps, within the Headwaters Spruce Fork sub-watershed, where
Spruce No. 1 is to be located, there are more than 34 past and present surface mine
permits issued which collectively occupy more than 33% of the land area. Assuming full
constructions of these projects in addition to known future surface mining permits, more
than 40% of the land area of the sub-watershed will be affected.
In 1997, the WVDEP performed its first comprehensive ecological assessment of the
Coal River sub-basin6. 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. As a part of that assessment WVDEP stated:
High quality streams with minimal human disturbances provide significant and
even irreplaceable wildlife habitat They also provide a tremendous recreational
resource. No sites in the Coal River Watershed met the minimum criteria for
reference site status. This is the first of 32 watersheds studied in West Virginia
that produced no potential reference sites. Researchers conducting the EPA study
on mountaintop mining, alluded to previously, have found a few small streams
within the watershed that may meet the reference site criteria. The Program has
since adopted one stream, White Oak Branch, (KC-10-T-22), as a reference site.
Since reference sites reflect least-degraded 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 effort to
find the apparently few remaining streams within the watershed that have not
been significantly impacted by human disturbances.
White Oak Branch, referenced above in WVDEP's 1997 study, flows to Spruce Fork
immediately upstream of Oldhouse Branch and Pigeonroost Branch. As noted above,
WVDEP has adopted White Oak Branch as a reference site. 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 physico-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.
Based on a comparison of their macroinvertebrate communities, Oldhouse Branch and
Pigeonroost Branch are of comparable quality to White Oak Branch. Accordingly,
Oldhouse Branch and Pigeonroost Branch reflect least-degraded conditions and represent
6 Report can be found at
http://www.dep.wv.gov/WWE/watershed/wqmonitoring/Documents/EcologicalAssessments/EcoAssess_C
oal_l997.pdf
23
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some of the few remaining streams within the Coal River sub-basin that have not been
significantly adversely impacted by human disturbances.
Oldhouse Branch flows into Spruce Fork immediately downstream of White Oak Branch
and exhibits similar healthy biological diversity and water quality (EPA data). 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,7 both Oldhouse Branch and White
Oak Branch scored comparably well, meaning that both were of similar quality and
supporting similar aquatic communities.
Oldhouse Branch and White Oak Branch also score comparably well when the benthic
macroinvertebrate community is considered at the more sensitive genus (as opposed to
family) level. For instance, Oldhouse Branch shared 55 total genera (many of them
pollution intolerant) with White Oak Branch (EPA data) indicating a diverse and healthy
aquatic community in Oldhouse Branch similar to the high quality communities of White
Oak Branch.
Pigeonroost Branch also shares many macroinvertebrate genera (many of them
pollution intolerant) in common with the high quality community in White Oak Branch,
indicating that the health of Pigeonroost Branch's aquatic community is similar. The
WVSCI assessment of Pigeonroost indicates water quality is relatively good despite the
presence of localized historic mining in the watershed. See Section IV.B.l. and
Appendix 1 for more detail on macroinvertebrates at the Spruce No. 1 mine project site.
The relatively high quality of Oldhouse Branch and Pigeonroost Branch also can be
demonstrated by comparison to other streams in the Spruce Fork sub-watershed that have
been impacted by mining operations similar to the Spruce No. 1 Mine. Four such streams
are directly northwest of the Spruce No. 1 project, on the west side of Spruce Fork, and in
part, are impacted by the Mingo Logan Dal-Tex Mining Operation. Section V.B.2.a
below compares the health of the relatively unimpacted macroinvertebrate communities
in Pigeonroost Branch and Oldhouse Branch with the macroinvertebrate communities in
streams elsewhere within the Spruce Fork sub-watershed that have been impacted by
mining activity. By way of summary here, 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.
B, Wildlife
The ecoregion where the Spruce No. 1 project is be located (Figure 5) 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. Salamanders in particular
reach their highest North American diversity in the Central Appalachian ecoregion.
7 For a more detailed discussion of WVSCI, see Section V.B.2.a.iii.
24
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Western Allegheny Plateau Ecorsgion
Sprue* No.1 -
Dal Tex Complex
Figure 5 Central Appalachian Ecoregion
K
25
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The ecoregion where the Spruce No. 1 project is located includes one of the most
prominent biodiversity hot spots of rarity and richness identified by The Nature
Conservancy (TNC) (Figure 6).
Figure 6: TNC Biodiversity Hotspots
Map adapted from Precious Heritage:
The Status of Biodiversity in the United States.
Data from State Natural Heritage Programs and their cooperators.
Map produced by TNC Eastern Conservation Science GIS, 5/19/00.
© The Nature Conservancy
http://www.nature.org/wherewework/northamerica/states/westvirginia/ science/
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
unique species of plants, invertebrates, salamanders, crayfishes, freshwater mussels, and
fishes. These forests represent the center of the earth's salamander diversity. Not only
are there numerous species, but salamanders also are incredibly abundant here, often
accounting for the most vertebrate biomass in a given patch of forest (Stein et al, 2000).
It has been documented that other specialized wildlife such as some neotropical migrant
birds and forest amphibians rely on the natural headwater stream condition and adjacent
forest types exhibited by Pigeonroost Branch and Oldhouse Branch for maintenance of
their populations (Stein et al, 2000),
As set forth above in Section IV.B.l. above, Pigeonroost Branch and Oldhouse Branch
support diverse and healthy communities of benthic macroinvertebrates. In terms of its
mayfly community, Oldhouse Branch ranks in the top 5% in the eco-region and the top
10% in the State. Oldhouse Branch's stonefly community ranks in the top 2% of the
ecoregion. Pigeonroost Branch's mayfly community ranks among the top 10% in the co-
region and the top 17 % in the State. Pigeonroost's stonefly community ranks in the top
17% in the eco-region and the top 28% third of the State.
1. Invertebrates
26
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As described above, benthic maeroinvertebrates are the bottom-dwelling (benthic)
organisms that are large enough to be seen without the aid of microscopes (macro), and
are not equipped with backbones (invertebrate). Put simply, they are aquatic insects. In
addition to serving as indicators of ecosystem health, freshwater maeroinvertebrates,
including mayflies and stoneflies, play a vital role in food webs and in the transfer of
energy in river systems. These organisms essentially convert plant material into food
sources (fats and proteins) essential for the maintenance of healthy fish and amphibian
populations, and for foraging terrestrial vertebrates such as birds, bats, reptiles, and small
mammals; serving as critical foodchain organisms, vital to the sustenance of healthy
ecosystems. Because of their productivity and secondary position in the aquatic food
chain, maeroinvertebrates play a critical role in the delivery of energy and nutrients along
the stream continuum. They also are instrumental in cleaning excess living and nonliving
organic material from freshwater systems, a service that contributes to the overall quality
of the watershed.
Maeroinvertebrates are indigenous to central Appalachian streams and their naturally
occurring communities are important components of stream ecosystems.
Maeroinvertebrates are recognized as wildlife by several organizations, including the US
Fish and Wildlife Service (USFWS), USDA Forest Service, The Nature Conservancy,
State Natural Heritage programs, and the West Virginia Department for 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. Insects represent 10.4 percent of all currently-listed animals
in the U.S. and 4.4 percent of all listed species, including plants
(http://ecos.fws.gov/tess_public/pub/boxScore.jsp). Several dozen other insects are
candidates for listing under the ESA, including the Sequatchie caddisfly (Glyphopsyche
sequatchie), a trichopteran found in Tennessee,
The State of West Virginia also considers insects to be wildlife, and includes insects on
its list of rare, threatened and endangered species. Many aquatic insects are listed,
including: 12 species of stoneflies, two species of mayflies, and 73 species of dragonflies
and damselflies (West Virginia Natural Heritage Program 2007). Scientists and
environmental consultants who collect benthic maeroinvertebrates in West Virginia must
obtain a wildlife collection permit from WVDNR.
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) feed primarily on mayflies. A dietary study of small
stream fishes in the Appalachian coalfields of Kentucky (Lotrich 1973) showed that gut
contents of several darters contained mostly mayflies. Darters are an important part of the
fish assemblage and many are hosts for mussel larvae. Several darter species inhabit
Spruce Fork in the immediate vicinity of the project area. Table 1 identifies the mayfly
genera that have been identified in the Spruce No. 1 mine permit area.
27
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Table 1, Presence/absence of mayfly genera in the permit area.
Order Family
Genus
Old house . Pigeonroost
Seng Camp
Ephemeroptera
Ameletidae
Ameletus
X
X
Ephemeroptera
Baetidae
Acentrella
X
X
Ephemeroptera
Baetidae
Baetis
X
X
X
Ephemeroptera
Baetidae
Diphetor
X
Ephemeroptera
Baetiscidae
Baetlsca
X
X
Ephemeroptera
Caenidae
Caenis
X
Ephemeroptera
Ephemerellidae
Attaneila
X
X
Ephemeroptera
Ephemerellidae
Dannella
X
X
Ephemeroptera
Ephemerellidae
Drvnella
X
X
Ephemeroptera
Ephemerellidae
Ephemerella
X
X
Ephemeroptera
Ephemerellidae
Eurylophella
X
X
X
Ephemeroptera
Ephemeridae
Ephemera
X
X
X
Ephemeroptera
Heptagen
idae
Cinygmula
X
X
Ephemeroptera
Heptaqen
idae
Epeorus
X
X
Ephemeroptera
Heptagen
idae
Heptagenia
X
Ephemeroptera
Heptagen
idae
Maccaffertium
X
X
X
Ephemeroptera
Heptagen
idae
Stenacron
X
X
Ephemeroptera
Isonychiidae
Isonychia
X
X
Ephemeroptera
Leptophlebiidae
Choroterpes
X
Ephemeroptera
Leptophlebiidae
Paraleptophlebia
X
X
Note: Siphlonurus and Pseudocloeon reported by Sturm Env. are likely erroneous
identifications. These genera have been excluded from this list.
28
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Stoneflies (Plecoptera) also represent an important group of aquatic insects in the
structure and functioning of stream ecosystems. Stoneflies also fill important trophic
roles in stream ecosystems, as displayed by their dctritivory (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 which provide the higher dissolved oxygen
concentrations required for their survival. Table 2 presents the stonefly genera identified
in the Spruce No. 1 Mine area.
Table 2. Presence/absence of stonefly genera in the permit area.
1
Order
Family
Genus
Oldhouse
Pigeonroost
Seng Camp
Plecoptera
Capniidae
Aiiocapnia
X
X
X
Plecoptera
Chloroperlidae
Alloperla
X
Plecoptera
Chloroperlidae
Haploperia
X
Plecoptera
Chloroperlidae
Sweltsa
X
Plecoptera
Leuctridae
Leuctra
X
X
X
Plecoptera
Nemouridae
Amphinemura
X
X
Plecoptera
Nemouridae
Ostrocerca
X
X
Plecoptera
Nemouridae
Paranemoura
X
Plecoptera
Pelfoperlidae
Peltoperia
X
X
Plecoptera
Perlidae
Acmn&uria
X
X
X
Plecoptera
Perlodidae
Isoperja
X
X
Plecoptera
Period idae
Remenus
X
Plecoptera
Perlodidae
Yugus
X
Plecoptera
Pteronarcvidae
Pteronarcys
X
X
X
Plecoptera
Taeniopterygidae
Taenionema
X
Plecoptera
Taeniopterygidae
Taeniopteryx
X
X
Note: Podmosta, Paraleuctra, Megaleuctra,and Beloneuria reported by Sturm Env. are
likely erroneous identifications. These genera been excluded from this list.
2. Salamanders
The ecoregion where the Spruce No. 1 project is located contains one of the richest
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 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.
29
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Salamanders are an important ecological component in the mesic (medium precipitation)
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 ecosystems acting as predators of small
invertebrates and serving as prey to larger predators (Pough et al., 1987). Some species of
salamanders split their lives between forests and headwaters and depend on a close
connection to move between the two (Petranka, 1998).
Moler and Franz (1987) cite the work of Burton and Likens (1975) and Gosz et al. (1978)
in New Hampshire who suggest an important role for amphibians in energy cycling.
Burton and Likens (1975) found that the biomass of salamanders was about double that
of birds during the peak birding season and about equal to the biomass of small
mammals. Gosz et al. (1978) found that salamanders and shrews were the most
important vertebrates preying on the invertebrates of the forest floor. They estimated that
birds consumed 6.5 times, and shrews 4.7 times, the amount of food energy consumed by
the salamander community. However, because the warm-blooded birds and shrews
expended 98% of their energy intake on metabolic maintenance compared to only 40%
for the salamanders, salamanders contribute 4.6 (shrews) and 6.3 (birds) times as much
biomass to the available prey base, making them an important component of the
foodweb.
With respect to the immediate project area, stream-dwelling salamanders have been
surveyed in White Oak Branch (USFWS, unpublished data, 2004). White Oak Branch
had good numbers of Northern Dusky (9 adult, 7 larvae), Appalachian Seal (15 adult, 12
larvae), and Two Lined salamanders (1 adult and 15 larvae). These numbers represent
densities in 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 features as White Oak Branch, salamander populations
in Pigeonroost 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,
Bend Branch (another tributary of Spruce Fork), and Ash Fork (a tributary of Gauley
River) at more than six salamanders per square meter. In the Williams' study, the
majority of the total catch of salamanders was found in Pigeonroost.8 Using these
numbers from White Oak Branch and Pigeonroost, EPA estimates aquatic salamanders
are indeed abundant (-5-6 per square meter) along stream channels in Pigeonroost
Branch and Oldhouse Branch.
8 Williams (2003) data from the WV MTM region also showed that while more individuals were found in
the lower lst-2niJ order reaches, slightly more species (8 spp.) were actually found in the upper intermittent
reaches.
30
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3. Fish
Fish communities change with watershed size and respond to gradients of physical
habitat and chemistry. The fish assemblages in Pigeonroost Branch and Oldhouse
Branch are typical of headwater streams, containing only a few species. The fish
assemblages in Spruce Fork are in relatively good condition. Spruce Fork is a locally
important rock bass and smallmouth bass fishery. These fish assemblages are not
representative of pristine conditions and it is likely that some of the more sensitive
species may have been historically extirpated from past anthropogenic activities,
including mining.
In an analysis of fish community data from Spruce Fork, Region III assessed the small
streams immediately impacted by the Spruce No. 1 permit and three reaches of Spruce
Fork: 1) Upstream of Seng Camp, 2) Seng Camp to Spruce Laurel, and 3) Downstream of
Spruce Laurel. Other data analyzed included data collected for the Programmatic
Environmental Impact Statement (PEIS) for Mountaintop Mining/Valley Fills, (see
Stauffer and Ferreri, 2002 and Fulk et al. 2003); unpublished data included in the West
Virginia Department of Natural Resources database (including USEPA, WVDNR, and
consulting firm data); and data from Decota Consulting (consultants for Mingo Logan)
supplied to the WVDNR collecting permit program. The data consisted of samples that
were intended for community assessment and were judged to have sufficient numbers of
individuals to render a fair assessment. Fish community data can be difficult to analyze
and oftentimes the absence of species may be due to zoogeography (how they were
distributed in response to past geological events) or due to stressors over time in the
watershed. Some of these stressors may still be apparent and some may not.
The fish found in Pigeonroost Branch, Oldhouse Branch, and White Oak Branch are
typical of small streams in the Coal River Basin. They do not indicate impairment, nor
do they indicate reference conditions. EPA compared samples collected for the PEIS in
1999 and more recent data collected by Decota Consuting from 2008 and 2009. When
sampled for the PEIS, Pigeonroost Branch had been affected by drought and only
blacknose dace and creek chubs were present. These species are tolerant of disturbance
and are headwater species adapted to drought. White Oak Branch also was sampled for
the PEIS at the same time. It too was drought-affected and contained only blacknose
dace at the time of the PEIS sampling in 1999. No samples were collected in Oldhouse
Branch for the PEIS.
More recent data indicates that Pigeonroost Branch also has a population of mottled
sculpin, and at times smallmouth bass and stonerollers. More recent data from White Oak
Branch indicates that creek chubs are also present in good numbers and mottled sculpin
are rare (only 1 individual captured). Data from Oldhouse Branch indicates that
blacknose dace and creekchubs are the only species present.
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 MTM/VF to fish assemblages. Using this same
31
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index, the assemblage upstream of Seng Camp Creek ranged from fair to excellent
condition.
The fish assemblage in the mainstem of Spruce Fork is in relatively good condition.
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 Basin and have not changed appreciably over the last 60 years.
4. Birds9
Many terrestrial bird species depend on the headwater streams like those of the Spruce
Fork for their survival. The ecotone (transition area) between terrestrial and aquatic
habitats results in diverse flora and fauna. For example, unique avifauna assemblages can
be found along the riparian zone of headwater streams.
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, Kentucky, Swainson's and worm-eating warblers, the wood thrush, and the
Louisiana waterthrush. The first five of these are also designated as BCC species within
the USFWS's Northeast Region as a whole and nationally (USFWS 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 (Seirus motacilia), 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. Headwater streams like Pigeonroost Branch and Oldhouse
Branch that support healthy macroinvertebrate communities are food sources for species
such as the Louisiana waterthrush.
The Appalachian Mountain Bird Conservation Region (AMBCR), which extends from
southeastern New York south to northern Alabama, is thought to support a substantial
portion of the Louisiana waterthrush's breeding population, perhaps as much as 45
percent. 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-
9 Much of the discussion related to avian and bat species is based upon communications with the U.S. Fish
and Wildlife Service.
32
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2003. The West Virginia population may serve as a source for populations elsewhere in
the breeding range. The Louisiana waterthrush is also an area-sensitive species, requiring
undisturbed forest tracts of 865 acres to sustain a population (Robbins, C.S., J.R. Sauer,
RS. Greenburg, and S. Droege. 1989). The most effective management protocol for the
Louisiana waterthrush would appear to be protection of forest tracts and water systems
inhabited on both breeding and wintering areas particularly moderate- to high-gradient
headwater streams, which compose 75-80% of stream length in a typical watershed.
Bird species that rely on mature forest habitats that are on the Audubon watch list as
declining species and are listed as probable in the area include the Swainson warbler
(Limnothlypis swainsonii), Kentucky warbler (Oporornis formosus), and Cerulean
warbler (Dendroica cerulean).
The Cerulean warbler in particular is considered an area-sensitive species; it is thought to
require large (greater than 30 sq miles) tracts of mature interior forest habitat to support
stable breeding populations. This species is a canopy-foraging insectivorous neotropical
migrant songbird that 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. Important among a
number of breeding season constraints are the loss of mature deciduous forest,
particularly along stream valleys, and fragmentation and increasing isolation of
remaining mature deciduous forest. The cerulean warbler appears to be more sensitive
than most other North American birds to landscape-level changes in habitat. 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 species' entire
breeding population, and the AMBCR breeding population likely functions as a source
for populations elsewhere in the breeding range.
The Acadian flycatcher {Empidonax virescens) is commonly encountered throughout the
Central Appalachian Ecoregion, but despite the large expanse of existing forest habitat, it
is primarily restricted to forested tracts with understory vegetation along small headwater
streams, where it can feed on emergent aquatic insects. Spruce Fork and its tributaries
meets these habitat requirements. Neotropical migrant songbirds are also often attracted
to headwater streams for breeding areas because of the diversity of the habitat and the
availability of emergent aquatic insects.
5. Bats
Thirteen species of bats are found in West Virginia. Most North American bats are
insectivorous, which capture their prey by foraging in flight, catching flying insects
from a perch, or collecting insects from plants.
Different species of bats often have distinct life history traits and behaviors. Some bats
33
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are solitary and hang in tree foliage, attics, bams, and other protected places during the
day. Other bats are colonial and cluster in caves and mine tunnels. Bats have one of the
slowest reproductive rates for animals their size. Most bats in northeastern North
America have only one or two pups a year and many females do not breed until their
second year. This low reproductive rate is somewhat offset by a long life span, often over
20 years. The little brown bat, common in North America and in West Virginia, is the
world's longest lived mammal for its size, with a maximum life-span over 32 years.
During the winter, some bats migrate south in search of food, while others hibernate
through the cold weather when insects are scarce. Bats that do migrate usually travel less
than 200 miles, often following the same routes as migratory birds.
Species that have potential to be found 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).
Both the Indiana and Virginia big-eared bats are listed as endangered under the
Endangered Species Act. The USFWS was also recently petitioned to list the eastern
small-footed bats and the northern long-eared bats under the ESA, Five eastern small-
footed bats and 16 northern long-eared bats were captured during mist net surveys
conducted at the Spruce No. 1 project site in 2004, 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 have been described as once one of the most common mammals in the
Eastern United States. Between 1960 and 2004, biologists have documented a 56 percent
population decline in Indiana bats. 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. 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, pg. 252). The project area occurs roughly half-way between known hibernacula in
northeastern Kentucky and southeastern West Virginia. Since the most recent surveys at
the Spruce No. 1 site, maternity roosts have been documented in central and north-central
Boone County. Additionally, a juvenile Indiana bat was captured on August 9,2010 in
southwest Fayette County, indicating the presence of a maternity colony in that area.
C. Summary
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Based on the foregoing, EPA Region III finds that Pigeonroost Branch and Oldhouse Branch
contain important wildlife resources and habitat. The Region bases its conclusion on several
factors including the similarity of Pigeonroost Branch and Oldhouse Branch to the reference
quality White Oak Branch and therefore they support conditions representing some of the last
remaining least degraded streams and riparian areas within the Spruce Fork sub-watershed
and the Coal River sub-basin.
V. Basis for Recommended Determination
A. Section 404(e) Standards
Section 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.
While EPA strongly prefers to initiate the Section 404(c) process prior to issuance of a
permit, Section 404(c) and EPA's implementing regulations authorize EPA to initiate the
Section 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, consistent with Section 404, Pigeonroost Branch and
Oldhouse Branch were specified as disposal sites in DA Permit No. 199800436-3.
Section 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 Section 404(b)(1) Guidelines (40 CFR Part 230).
For purposes of the Spruce No. 1 mine, the relevant portions of the Section 404(b)(1)
Guidelines that are particularly important for assessing the unacceptability of
environmental impacts include:
• Less environmentally damaging practicable alternatives (230.10(a))
35
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• Water quality impacts (230.10(b))
• Significant degradation of waters of the United States (230.10(c))
• Minimization of adverse impacts to aquatic ecosystems (230.10(d))
• Cumulative effects (230.11 (g)); and
• Secondary effects (230.11(h))
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). Part of the concept
of protecting the "biological integrity" of the Nation's waters is protection of the
indigenous, naturally occurring community. 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. See Alameda Water & Sanitation District v.
EPA, 930 F. Supp.486 (D. Colo. 1996).
B. Adverse impacts, from specification of Pigeonroost Branch and Oldhouse Branch
as disposal sites for discharges of dredged and/or fill material from the Spruce
No. 1 Mine
The impacts from the specification of Pigeonroost Branch and Oldhouse Branch as disposal
sites for discharges of dredged and/or ill material from the Spruce No. 1 Mine will occur
through several different pathways.
First, direct impacts will occur as a result of the discharge of fill (excess spoil, minethrough,
and construction of valley fills), which will bury much of Pigeonroost Branch and Oldhouse
Branch and eliminate the buried ecosystems, including all wildlife living in those streams.
Burial of Pigeonroost Branch and Oldhouse Branch also will eliminate habitat for wildlife
that depend upon those streams. Loss of the buried portions of Pigeonroost Branch and
Oldhouse Branch will impact wildlife that depend on those headwater streams for all or part
of their lifecycles and adversely affect adults, juveniles, larvae, and/or eggs.
In addition, adverse impacts will occur to wildlife that live outside the footprint of the fills
and sedimentation ponds. Discharges of fill material into Pigeonroost Branch and Oldhouse
Branch will have the effect of removing those streams as sources of freshwater dilution and
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 Applachia and significant adverse impact on downstream macroinvertebrate
communities.
There is also a likelihood 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 conductivity and selenium) contributing to
degradation of downstream waters. The project as authorized also has the potential to
contribute to conditions that would support blooms of golden algae that release toxins that
can kill fish and other aquatic life.
To evaluate the impacts of the Spruce No. 1 project, Region III has consulted the PEIS and
available data and literature documenting impacts from similar projects. Region III also has
examined impacts caused by the portion of the Spruce No. 1 Mine that has already been
36
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constructed in the Seng Camp Creek watershed (specifically, Valley Fill 1 A). In addition,
Region III reviewed the nearby Mingo Logan Dal-Tex operation. Based on location and
similarity of geology and minerals, impacts from the Mingo Logan Dal-Tex operation are
likely to be a good predictor of impacts from the Spruce No. 1 Mine. This was
acknowledged by the Huntington District Corps of Engineers in the Spruce No. 1 EIS, which
stated: "The 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."
Figure 7 Spruce No. I Mine and the Dal-Tex Mine Operation
Region III completed a review of rock cores and corresponding cross sections for the Dal-
Tex mines including the Gut Fork mine (immediately across Spruce Fork from Spruce No.l;
Figure 7) and compared those to the Spruce No. 1 mine. This review, which is set forth in
Appendix 4, indicates that, for the most part, the formations are repeated from the Dal-Tex
mine complex to the Spruce No 1 mine location. Per the EIS, the same coal beds are to be
developed for the Spruce No. 1 mine as for the Del-Tex mine. Also, these coal bed sequences
are similar to those described in the literature for southern West Virginia coal bed sequences
and the geologic column for the Spruce No 1 mine.
1. Effects on Water Chemistry
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The Section 404(b)(1) Guidelines direct that no permit should issue if the discharge will
cause or contribute to violations of applicable water quality standards or if the discharge
will cause or contribute to significant degradation of the aquatic ecosystem, including but
not limited to significant adverse effects on stages of aquatic life and other wildlife
dependent upon aquatic ecosystems, including the transfer concentration, and spread of
pollutants or their byproducts outside the disposal area. 40 C.F.R. §§230.10(b)(1) &
230.10(c). See also 40 C.F.R. §§ 230.31.
Adverse changes in water chemistry frequently have a corresponding impact on wildlife
and fisheries that live in or depend upon the water. Potential impacts to water chemistry
are considered because they may affect the native aquatic and water-dependent
communities in the Spruce Fork watershed.
a. Selenium
Discharges from the Spruce No. 1 Mine Complex project are likely to increase selenium
loading to the immediate receiving streams and downstream waters. The State of West
Virginia has established a numeric chronic water quality criterion for selenium (5 ja.g/L)
to protect instream aquatic life. Selenium is a naturally occurring chemical element that
is an essential micronutrient, but excessi ve amounts of selenium can also have toxic
effects. For aquatic animals, the concentration range between essential and toxic is very
narrow, being only a few micrograms per liter in water. Selenium toxicity is primarily
manifested as reproductive impairment and birth defects due to maternal transfer,
resulting in embryotoxicity and teratogenicity in egglaying 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 aI. 2009). A WV draft study indicates that
elevated selenium concentrations in fish eggs, increased larval deformity rates and
increased deformity rates in mature fish are occurring in the Mud River Reservoir, Boone
County, WV due to mining activities. These adverse conditions were all associated with
elevated water column selenium concentrations (WVDEP, 2009, draft).
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). WVDEP reports
that some of the highest coal selenium concentrations are found in the central portion of
the Coal River watershed where significant active mining and selenium impaired streams
are located, in the immedi ate vicinity of the Spruce No. 1 project. Selenium is discharged
when surface mining activities expose selenium-bearing material that comes in contact
with water and contaminated water drains from the mining area to surface waters. The
sedimentation 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.
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To evaluate the impact of discharges into Pigeonroost Branch and Qldhouse Branch as
authorized by the DA Permit, Region III 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.10 In addition, Region III has reviewed data from
discharge monitoring reports from mining outlets for the portion of the Spruce No. 1
Mine that has been constructed in the Seng Camp Creek watershed. Figure 8 shows mine
outlet locations.
VW1017Q21
Outlet 015
VW1004956
Outlet 001
VW1017021
Outlet 028
VW1004956
Outlet 015
VW1017021
Outlet 017
VW1011120
Outlet 012 \
Pigs on roost:
oidhou*6 Branch
WtomatBrs
UWOB
DWOB
| Dal-Tex Mine Couple* • Water Monitoring Site
Spruce No. 1 Mire • Outtet Point
////) VSiley Fill —— NHD24k Hydro
[ ~j VW Counties
Figure 8: Dal-Tex and Spruce No. 1 Mine outlet locations.
10 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. Selenium
concentrations have exceeded the Se criterion at least three times in six (6) other mined streams in the Coal
River Sub-basin. These include White Oak Creek (a tributary to the Coal River), the left Fork of White
Oak Creek, Seng Creek (another 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 area of the Spruce No. 1 mine is likely to release selenium during mining activities. See Appendix 2
for further details on selenium.
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Table 3 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 as currently authorized) and Seng Camp Creek
(receiving water for the portion of Spruce No. 1 that is under construction).
Summarizing the data in the following table, streams draining the nearby Dal-Tex
operation have selenium concentrations exceeding the 5 ug/1 chronic selenium numeric
criterion. The data from the Dal-Tex mine complex do not indicate any decrease in
selenium concentrations over the period of record. These data strongly suggest
construction of valley fills and other discharges of fill material from the Spruce No. 1
Mine into Pigeonroost Branch and Oldhouse Branch would likely result in discharges of
elevated levels of selenium in the receiving waters and lead to significant degradation of
water quality of the receiving waters and downstream waters. Such degraded water
quality would be likely to impact downstream wildlife populations, including fish
population
40
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Table 3. Selenium Concentrations (ug/1) Near Spruce No. 1 Project Area
| Source and time period of data
Stream Name
Subbasin
| PEIS (2000-2001)
WVDEP (2002-2003)
WVDEP (200
I Se (avg) Se (range)
Se (avg) Se (range)
Se (avg) Se (
Average and Range of So in '['ribs io Spruce Fork that drain Spruce No. 1 project 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 Tribs to Spruce Fork draining Dal-Tex Operation
Beech Creek11
Spruce Fork
7.5
5.6-9.5
6
5.0-9.0
12.3
t
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.
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 are shown in the following Figures 9-11. These demonstrate that the
discharges from those outfalls consistently exceed West Virginia's chronic numeric water
quality criterion for selenium (5 ng/L).
11 In the WVDEP study on selenium bioconcentration factors, selenium was also found in fish tissue in
Beech Creek (average 7.55 mg/kg).
41
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WV1011120 Outlet 012 Selenium Trends for Gut Fork Surface
Mine of the Dal-Tex Mine Complex (January 2007 to June 2010)
60
50
Figure 9: 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)
42
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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)
—~—Minimum Value ¦ Average Value MaxValue - WVWQS
Figure 10: 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)
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VW1004956 Outlet 001 Selenium Trends for left Fork No. 2 Mine
of Dal-Tex Mine Complex (January 2007 to June 2010)
s
8
8
8
CO
o
cn
o
o>
o
o>
o
25
o
o
o
O
o
o
o
o
(N
CM
-------
chronic water quality criterion for selenium. Selenium concentrations in excess of the
chronic criterion were also reported from Outlet 017.13
Spruce No. 1 Mine Outlet 028
DMR Data (December 2008 to March 2010)
DMR Sampling Date
—Average Se {(jg/L) —¦— Max Se (pg/L)
Figure 12: Selenium concentrations in discharge from outlet 028 on Spruce No. 1 Mine
13
To the extent that commenters have stated that selenium discharges should be addressed only through
the NPDES permit, the Section 404(b)(1) Guidelines provide an independent obligation to assure
compliance with water quality standards (40 CFR 230.10(b)). Moreover, it is noted that the NPDES permit
issued for the Spruce No. 1 project establishes effluent limitations for selenium in only three of the outfalls
in the NPDES permit. The permit requires only monitoring at the remaining outfalls, including the outfalls
in Seng Camp Creek discussed herein. To the extent the Company has commented that the impacts from
the Dal-Tex operation are not a good predictor of selenium impacts from construction of Spruce No. 1 due
to implementation of a materials handling plan at Spruce No. 1, it is noted that the materials plan as being
implemented by Mingo Logan in the Seng Camp Creek watershed has not fully succeeded in preventing
exceedance of the numeric water quality criterion for selenium at Outfalls 17 and 28. Moreover, the Arch
corporate family, including Mingo Logan, has conceded that its efforts to control selenium at a number of
its active surface coal mines in West Virginia have been unsuccessful. Arch's various subsidiaries recently
have requested extensions of NPDES compliance schedules for selenium discharges at numerous
facilities,further indicating challenges in meeting the WV chronic criterion.
45
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Table 4. Total Recoverable Selenium (|ig/L) for Outlets 015,017 and 028 for NPDES Permit
WV1017021, Mingo Logan Coal Company Spruce No. 1 Mine. Note: Shaded areas indicate
exceedences of the selenium standard (5 pg/L).
Site
Code
Site Location
Sample Date
Min
Value
Ave.
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
6.13
7.50
The Spruce Fork watershed upstream of Pigeonroost Branch and Oldhouse Branch has
selenium concentrations elevated above the chronic water quality criterion based on the
instream DMR data. See Appendix 2, Table 14. The downstream Spruce Fork (DSF)
site does not have selenium concentrations above the water quality criterion. This
suggests that Pigeonroost Branch and Oldhouse Branch provide clean dilution water to
the mainstem of Spruce Fork (Appendix 2, Table 15). The proposed valley fills for
Pigeonroost Branch and Oldhouse Branch will eliminate the freshwater dilution
contributions from both of these tributaries. Based on the current during- and post-
mining water quality conditions observed in Seng Camp Creek downstream of the Spruce
No. 1 project, selenium values will likely also increase at both outlet points on Oldhouse
and Pigeonroost Branch during and post-mining. The increased selenium concentrations
combined with the elimination of the dilution from these two tributaries will likely cause
the selenium concentrations in Spruce Fork to increase.
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 project would be likely to discharge levels of selenium
exceeding the WV chronic water quality criterion for selenium (greater than 5 jig/1)
46
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downstream of the filled streams and in Spruce Fork.14 An important adverse impact of
selenium residues in aquatic food chains is not just the direct toxicity to the organisms
themselves, but rather the dietary source of selenium these organisms contribute to fish
and wildlife species in the upper food web that feed on them.
b. Total Dissolved Solids/Conductivity
To understand the water quality impacts from increased total dissolved solids (TDS) and
conductivity, it is helpful to understand the relationship between salinity, TDS, and
specific conductivity, and the effect increases in conductivity have on native wildlife.
For purposes of this action, when Region III discusses increased conductivity or TDS, we
are referring to an increase in salinity in otherwise dilute freshwater, consistent with
background levels in central Appalachian streams.
Salinity is the mass of salt in a given mass of water. While many 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.
Salinity reflects the amount of TDS in 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 units mg/1. The
majority of TDS in many waters are simply salts.
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
specific temperature (normally 25° C) and is normally reported in the units jiS/cm
(microsiemens per centimeter). Conductivity and TDS both increase as the concentration
of ions in a solution increase and are very strongly correlated. Normally, conductivity is
reported by state and federal monitoring agencies because it is an instantaneous
measurement that can be collected in situ with a meter, that does not require a laboratory
analysis, and that is precise and accurate. "Conductivity" refers to the measurement and
resulting data; "salinity" refers to the environmental property that is being measured.
Conductivity is an excellent indicator of the total concentration of all ions and is also a
good predictor of aquatic life use impairment, especially in the ecoregion
14 The concentrations of water column selenium observed at the Dal-Tex outlets and Seng Creek are
significant in the fact that these concentrations have been associated with elevated fish tissue
concentrations that are above the levels that cause teratogenic deformities in larval fish, leave fish with Se
concentrations above the threshold for reproductive failure (4 ppm), and place birds at risk of reproductive
failure through ingestion of fish with selenium concentrations greater than 7 ppm (Lemley 1997).
According to the WVDEP's study on 'Selenium Bioaccumulation among select stream and lake fishes in
West Virginia' (WVDEP 2009), Seng Camp 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. As
outlined in the graphical trends of selenium concentrations from the DMR records for three permitted
outlets for the Dal-Tex Mine Complex (WV1011120, WV1004956, WV1004956), these values are similar
or greater than the Seng Camp and Beech Creek concentrations which supports our view that the
corresponding fish tissue concentrations will be elevated to levels that cause fish and bird impairments.
47
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69 in which the Spruce No. 1 project is located,
A recent study found that elevated conductivity greater than 500 M-S/cm caused by
alkaline mine effluents was strongly associated with high probability of degradation of
native biota (Pond et al. 2008). In that study, 20 of 20 mined sites (100%) with
conductivity levels greater than 500)iS/cm reflected adverse impact to native
macroinvertebrates using a genus-level multi-metric index, and 17 of those 20 sites
(85%) reflected adverse impact to native macroinvertebrates using the family-level
WVSCI index (using the less than 68 threshold). 15
WVDEP ambient monitoring data confirm the high probability of adverse impact to
aquatic life when conductivity levels are elevated to greater than 500|iS/cm. WVDEP
macroinvertebrate data from subecoregion 69d (the Cumberland Mountains of the Central
Appalachians, the specific subecoregion where the project is located) were analyzed to
determine the percentage of WVDEP sites that reflected adverse impact to aquatic life
when the instream conductivity levels exceeded 500 jiS/cm, This analysis indicates that
a majority of the sites reflected adverse impact to aquatic life when conductivity levels
were elevated above 500 jiS/cm, 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 jiS/cm (76% of the sites reflected WVSCI scores less than
68). When the potential confounding effect of habitat 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. See Appendix 1 and 2 for further detail on
macroinvertebrates and conductivity.
EPA's draft report, A Field-Based Aquatic Life Benchmarkfor Conductivity in Central
Appalachian Streams (USEPA 2010a). also recognizes stream aquatic life impacts
associated with conductivity. This study, which is publicly available and is undergoing
external peer review by the EPA's Science Advisory Board, applies EPA's standard
methodology for deriving water quality criteria to field data and concludes that genus-
level macroinvertebrate impacts to the biological community occur at conductivity levels
as low as 300 jiS/cm.
Pond et al. 2008 showed that mayfly richness is significantly reduced to a few or zero
genera, and that several stonefly and caddisfly taxa were also extirpated or reduced in
abundance, when conductivity exceeds 500 ^S/cm downstream of mining operations
similar to Spruce No. 1. This mining-induced pattern was also documented in the eastern
Kentucky coalfields (Pond 2010). Many mayfly, stonefly and caddisfly genera are
extirpated from streams downstream of headwater valley fills, and this extirpation is
strongly correlated to water quality degradation caused by mining. This extirpation is in
15 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. Less than 68 indicates
degradation of the aquatic life use.
48
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addition to direct burial of these macroinvertebrates and other wildlife, as previously
described. See Appendix 1 macroinvertebrates for further detail.
After evaluating confounding effects as described above, scientific evidence points to the
conclusion that the extirpation of macroinvertebrate taxa documented in these studies is
caused by water quality degradation and not habitat degradation. Conductivity is an
excellent predictor of native taxa loss from Appalachian streams while habitat variables
provide little ability to predict taxa loss. Using the WV spring null model applied to
genus-level data from Pond et al. (2008), Observed/Expected (O/E) scores strongly
responded negatively (R2=0.63) to increasing conductivity. See Section V.B.2.a.ii. below
for a further explanation of the Observed/Expected Index. Water quality degradation
caused by elevated conductivity explained more than twice the variance in O/E scores
than did RBP habitat scores (R =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. From this analysis it is apparent that habitat
degradation offered little explanatory value in O/E variation in this dataset,16
Data from 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 (Table 5). Construction of valley fills and other
discharges from the Spruce No. 1 Mine into Pigeonroost Branch and Oldhouse Branch
would likely cause an increase in conductivity and TDS in receiving waters. This will
have two effects: first, it will eliminate Pigeonroost Branch and Oldhouse Branch as
sources of freshwater dilution to downstream waters, including Spruce Fork; and second,
it will transform Pigeonroost Branch and Oldhouse Branch into sources of increased
conductivity and TDS to downstream waters.
Construction of valley fills in the ecoregion in which the Spruce No. 1 Mine is located is
strongly correlated with ail increase in conductivity levels in downstream waters.
Sedimentation ponds, which are the usual 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. Table 5 provides the following average
conductivity and sulfate values for streams draining mined areas to the west of Spruce
Fork in comparison with Pigeonroost Branch and Oldhouse Branch.
16 Sites downstream of MTM in Pond et al. 2008 were located in relatively natural stream reaches in order
to help control for obvious habitat effects
49
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Table 5. Average conductivity and sulfate values for streams in project area
Stream
Conductivity Values
Sulfate Values
Rockhouse Creek
1012 uS/cm conductivity
407 mg/1 sulfate
Left Fork of Beech Creek
2426 uS/cm conductivity
1019 mg/1 sulfate
Beech Creek
1432 uS/cm conductivity
557 mg/1 sulfate
Trace Branch
971 uS/cm conductivity
569 mg/1 sulfate
Oldhouse Branch
90 uS/cm conductivity
28 mg/1 sulfate
Pigeonroost Branch
199 uS/cm conductivity
99 mg/1 sulfate
Average conductivity and sulfate concentrations in the mainstem of Spruce Fork to which
Pigeonroost Branch and Oldhouse Branch flow are also strongly elevated to as much as
ten times above natural background levels in Oldhouse Branch. Average conductivity at
almost every monitoring site on the mainstem Spruce Fork exceeded 500 fxS/cm. Only
one site had an average conductivity of less than 500 fiS/cm, which was located upstream
of the project area, upstream of Adkins Fork, and southeast of Blair, WV.
Pigeonroost Branch and Oldhouse Branch are providing freshwater dilution to Spruce
Fork thereby preventing conductivity levels in Spruce Fork from becoming even more
elevated. Construction of valley fills and other discharges authorized by the DA Permit
into Pigeonroost Branch and Oldhouse Branch would remove sources of freshwater
dilution to Spruce Fork and contribute to existing water quality degradation.
In addition to removing Pigeonroost Branch and Oldhouse Branch as sources of
freshwater dilution for Spruce Fork, construction of valley fills and other discharges
authorized by the permit into those waters also would likely transform Pigeonroost
Branch and Oldhouse Branch into sources of elevated conductivity and TDS to
downstream waters. As described in Section V.B.2.a. below, there is a strong correlation
between elevated levels of conductivity and extirpation of macroinvertebrate taxa.
Spruce Fork mainstem has little, if any, remaining assimilative capacity for conductivity.
Post-mining conductivity levels in Spruce Fork downstream of the project area were
modeled using a watershed area weighted deterministic model with two post-mining
average (500 and 1000 jiS/cm) and maximum (1000 and 1500 jiS/cm) conductivity
values for Oldhouse Branch, Pigeonroost Branch and Seng Camp Creek. These values
are conservative and 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 nS/cm. In
Beech Creek, which is partially mined and filled, the average and maximum conductivity
values are 1432 and 1776 ^S/cm (average and maximum values 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 pS/cm pre-mining, the modeled post-
mining conductivity values are also greater than 500 jiS/cm. Using the more
conservative post-mining values (average 500 and 1000 ^S/cm and maximum 1000 and
50
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1500 (iS/cm), we estimate that average conductivity in Spruce Fork downstream of Seng
Camp Branch could increase from 555 pre-mining to 745 (iS/cm post-mining and
maximum conductivity could increase from 965 pre-mining to 1226 (iS/cm post-mining.
EPA expects that these additional conductivity increases would likely further extirpate
native aquatic macroinvertebrates (wildlife) that are not tolerant to increased
conductivity. See Appendix 2 for further detail on conductivity.
2. Impacts to Wildlife
a. Macroinvertebrates
As set forth in Sections IV A. 1 and I.B. 1 above, benthic macroinvertebrates are diverse
and healthy in the Spruce No. 1 project area and represent an important component of the
aquatic community in Pigeonroost Branch and Oldhouse Branch. Furthermore, because
of their productivity and secondary position in the aquatic food chain, 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).
Construction of valley fills and other discharges authorized by the DA Permit into
Pigeonroost Branch and Oldhouse Branch will impact the native macroinvertebrate
community in two ways. First, the macroinvertebrates that live in stream channels within
the footprint of the valley fill will be destroyed. As set forth in Section V.C. below, it is
not likely that the on-site stream creation proposed by the permittee as mitigation would
support the quality of macroinvertebrate community that currently exists in Pigeonroost
Branch and Oldhouse Branch. Second, construction of valley fills and other authorized
discharges into Pigeonroost Branch and Oldhouse Branch would likely have an adverse
impact on the macroinvertebrate communities in remaining downstream waters.
Sensitive species of mayflies, stoneflies, and caddisflies currently inhabiting downstream
waters will be impacted through increasing chemical loading of contaminants.
As set forth above, the 2006 Spruce No. 1 EIS states that impacts from the Spruce No. 1
Mine are expected to be similar to those from the Dal-Tex operation. Accordingly,
conditions in streams impacted by the Dal-Tex operation will likely occur in the unfilled
portions of the streams that will be impacted by the Spruce No. 1 Mine. To evaluate the
impacts from the Spruce No. 1 Mine, Region III analyzed conditions in streams impacted
by the Dal-Tex operation. Region III conducted three different analyses. First, Region
III compared benthic macroinvertebrate collections from Pigeonroost Branch and
Oldhouse Branch to benthic macroinvertebrate samples from streams that have been
impacted by Mingo Logan's Dal-Tex operation. Second, Region III used an
observed/expected approach. Third, Region III compared WVSCI scores in Pigeonroost
Branch and Oldhouse Branch with streams impacted by the Dal-Tex operation. The
following describes these three analyses.
i. Comparison of macroinvertebrate communities
To evaluate the impact of the project, EPA compared benthic collections from the Spruce
No. 1 project area to Mingo Logan's Dal-Tex site (Table 1), using an equal number of
51
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benthic samples collected at both locations. This analysis reveals that construction of
valley fills and and other discharges authorized by the DA Permit into Pigeonroost
Branch and Oldhouse Branch would likely result in degraded macroinvertebrate
communities downstream of these discharges.
Considering the number of genera collected, the relatively unimpacted Pigeonroost
Branch and Oldhouse Branch contain a far greater number and diversity of
macroinvertebrate genera. Collectively, 85 different genera were collected from
Pigeonroost Branch and Oldhouse Branch between 1999-2000, while only 56 different
genera were collected from both Beech Fork and Left Fork Beech Fork, streams that
drain the inactive Dal-Tex operations.
Region III further refined its analysis to a comparison of the Ephemeroptera, Plecoptera
and Trichoptera (EPT: mayflies, stoneflies and caddisflies) taxa collected. In Pigeonroost
and Oldhouse combined, 42 EPT taxa were collected, while at Dal-Tex (Beech and Left
Fork Beech), only 12 EPT were found. Narrowing further to mayflies and stoneflies,
there were 14 mayfly genera and 12 stonefly genera in Oldhouse Branch and Pigeonroost
Branch but only two relatively pollution-tolerant mayfly genera and three pollution-
tolerant stonefly genera were collected in streams draining the Dal-Tex mine.. EPA also
found that caddisflies were rich (14 total genera) in Pigeonroost and Oldhouse, but only
seven total genera were found in Beech and Left Fork Beech downstream of the Dal-Tex
mine.
As set forth above in Section IV. A., macroinvertebrates are good indicators of watershed
health, and differ in their tolerance to the amount and types of pollution.
Macroinvertebrate communities integrate the effects of stressors over time and some taxa
(i.e., taxonomic category or group such as phylum, class, family, genus, or species) are
considered pollution-tolerant and will survive in degraded conditions. Some taxa are
pollutant-intolerant and will die when exposed to certain levels of pollution. Thus, the
composition of tolerant and intolerant (i.e., sensitive) communities informs scientists
about the quality of the water. The presence of a large number of individuals from the
more sensitive genera indicates good water quality conditions, whereas the presence of a
large number of tolerant genera may indicate degraded conditions.
The data described above indicates a substantial reduction in taxa diversity in the mine-
impacted waters. In addition, several tolerant taxa were found in the streams draining the
Dal-Tex mine that were not found in the Spruce project area further indicating
degradation and adverse impact to wildlife habitat (Table 1). Some of these taxa are
highly tolerant snails that typically do not occupy healthy headwater streams in the
Appalachians (Lymnaeidae, Physella, Helisoma). Other tolerant beetles and fly larvae
found at Dal-Tex but not Pigeonroost or Oldhouse also indicate biological impacts and
altered environmental conditions (i.e., atypical of Appalachian headwater streams) that
foster the invasion of these tolerant taxa. Table 6 compares the macroinvertebrate taxa
identified in Oldhouse Branch and Pigeonroost Branch with that found in streams that
have been impacted by the Dal-Tex Mine.
52
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Table 6, List of macroinvertebrate taxa identified from Spruce project and Dal-Tex.
Oldhouse
Beech+Left
+Plgeonroost
Fork Beech
Dal-Tex
Order
Family
Genus
Spruce No. 1
Mine
Oligochaeta
Oligochaeta
Oligochaeta
X
X
Nematoda
Nematoda
Nematoda
X
Proseriataoela
Plagiostomidae
Hydrolimax
X
Tricladida
Planariidae
Planariidae
X
Basommatophora
Lymnaeldae
Lymnaeidae
X
Basommatophora
Physidae
Physella
X
Basommatophora
Planorbidae
Helisoma
X
Coleoptera
Dryopidae
Hetichus
X
Coleoptera
Elmidae
Dubiraphia
X
Coleoptera
Elmidae
Macronychus
X
Coleoptera
Elmidae
MicrocyUoepus
X
Coleoptera
Elmidae
Optioservus
X
X
Coleoptera
Elmidae
Oulimnius
X
X
Coleoptera
Psephenidae
Edopria
X
Coleoptera
Psephenidae
Psephenus
X
X
Decapoda
Cambaridae
Cambarvs
X
Diptera
Ceratopogonidae
Atrichopogon
X
Diptera
Ceratopogonidae
Bezzia/Patpomyia
X
X
Diptera
Ceratopogonidae
Dasyh&l&a
X
X
Diptera
Chironomidae
Acricotopus
X
Diptera
Chironomidae
Chaetoctadius
X
X
Diptera
Chironomidae
Corynoneura
X
X
Diptera
Chironomidae
Cricotopus
X
X
Diptera
Chironomidae
Diamesa
X
X
Diptera
Chironomidae
Eukiefferiella
X
X
Diptera
Chironomidae
Metriocnemus
X
Diptera
Chironomidae
Micmpsectra
X
X
Diptera
Chironomidae
Microtendipes
X
Diptera
Chironomidae
Orthociadius
X
X
Diptera
Chironomidae
Parachaetocladius
X
Diptera
Chironomidae
Parametriocriemus
X
X
Diptera
Chironomidae
Pamphaenocladius
X
Diptera
Chironomidae
Pamtanytarsus
X
Diptera
Chironomidae
Polypedilum
X
X
Diptera
Chironomidae
Rheotanytarsus
X
X
Diptera
Chironomidae .
Smittia
X
Diptera
Chironomidae
Stempetlinella
X
Diptera
Chironomidae
Stenochironomus
X
Diptera
Chironomidae
Stilocladius
X
Diptera
Chironomidae
Sympotthastia
X
Diptera
Chironomidae
Tanytarsus
X
Diptera
Chironomidae
Thmmmannietta
X
Diptera
Chironomidae
Thienemannimyia
X
X
Diptera
Chironomidae
Tvetenia
X
X
Diptera
Chironomidae
Zavrelimyia
X
Diptera
Empididae
Cbelffera/MetachBla
X
X
Diptera
Empididae
Ciinocera
X
Diptera
Empididae
Hemerodromia
X
Diptera
Simuliidae
Prosimulium
X
Diptera
Simuliidae
Simutium
X
X
Diptera
Tabanidae
Tabanidae
X
Diptera
Tipulidae
Antocha
X
Diptera
Tipulidae
Cryptotabis
X
Diptera
Tipulidae
Dlcmnota
X
Diptera
Tipulidae
Hexatoma
X
53
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Table 6. Continued.
Oldhouse
Beech+Left
Continued
+Pigeonroost
Fork Beech
DaE-Tex
Order
Family
Genus
Spruce No. 1
Mine
Diptera
TipuEidae
Llmnophila
X
Dipiera
Tipulidae
Limonia
X
X
Diptera
Tipulidae
Pseudolimnophila
X
Diptera
Tipulidae
Tipula
X
X
Ephemeroptera
Ameletidae
Ameletus
X
Ephemeroptera
Baetidae
Acentr&Ha
X
Ephemeroptera
Baetidae
Baetis
X
X
Ephemeroptera
Baetiscidae
Baetisca
X
Ephemeroptera
Ephemerellidae
Drunella
X
Ephemeroptera
Ephemerellidae
Eptiemerella
X
Ephemeroptera
Ephemerellidae
Eurylophella
X
Ephemeroptera
Ephemeridae
Ephemera
X
Ephemeroptera
Heptageriiidae
Cinygmuta
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
Nigmnia
X
X
Odonata
Aeshnidae
Boyeria
X
Odonata
Gomphidae
Lanthus
X
X
Plecoptera
Capniidae
Capniidae
X
Plecoptera
ChEoroperlidae
Haplopeiia
X
Plecoptera
Leuctridae
Leuctra
X
Plecoptera
Nemourtdae
Amphinemura
X
X
Plecoptera
Nemouridae
Ostrocema
X
Plecoptera
Nemouridae
Prostoia
X
Plecoptera
Peltoperiidae
Peltoperia
X
Plecoptera
Periidae
Acroneuria
X
Plecoptera
Perlodidae
Isoperla
X
Plecoptera
Perlodidae
Remenus
X
Plecoptera
Perlodidae
Yugus
X
Plecoptera
Pteronarcyidae
Pteronarcys
X
Plecoptera
Taeniopter^gidae
Taenionema
X
Plecoptera
Taeniopterygidae
Taeniopteryx
X
X
Trichoptera
Glossosomatidae
Agapetus
X
Trichoptera
Glossosomatidae
Glossosoma
X
Trichoptera
Goeridae
Goera
X
Trichoptera
Hydropsychidae
Ceratopsyche
X
Trichoptera
Hydropsychidae
Cheumatopsyche
X
X
Trichoptera
Hydropsychidae
Diptectrona
X
X
Trichoptera
Hydropsychidae
Hydropsyche
X
X
Trichoptera
Hydroptilidae
Hydroptila
X
Trichoptera
LimnephiEidae
Pycnopsyche/Hydatophylax
X
Trichoptera
Philopotamidae
Chimarra
X
X
Trichoptera
Philopotamidae
Dolophilodes
X
Trichoptera
Polycentropodidae
Polycentropus
X
Trichoptera
Psychomyiidae
Psychomyia
X
X
Trichoptera
Rhyacophilidae
Rhyacophila
X
X
Trichoptera
Uenoidae
Neophylax
X
Tricladida
PEanariidae
PEanariidae
X
Total Distinct Taxa
85
56
Total EPTTaxa
42
12
54
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ii. Observed/Expected Index
In order to further predict and quantify the loss of taxa expected from construction of
valley fills in Pigeonroost Branch and Oldhouse Branch as authorized, Region III applied
a well-accepted and peer reviewed approach, called an Observed/Expected index (O/E)
(Hawkins 2006, Van Sickle 2005) (Figure 13). O/E ratios basically represent the
proportion of predicted taxa that were observed in a sample, compared to those expected
in the sample, after predicting the probability that a sample site is a member of one or
more fixed sets of reference site types.
Figure 13. Measure of biological
integrity; O vs. E (C.P. Hawkins, Utah
State Univ.).
O versus E as a Measure of Blolo^cd Integrity
o
the so# of native taxa expected at a
site that are actudly observed.
the 90 of native taxa expected to
occur at a site In thecfcsenoe of
human-oaus ed s tress.
T he deviation of O from E is a measure of compositional
slmilcrlty end thus acommunity-leveJ meosurs of boiogcal
Intecfily.
Rather than using several reference site types, null models can be developed that assume
only one set of comparable reference sites. Null models are appropriate when working in
areas with relatively similar physical and regional characteristics that may have influence
on the macroinvertebrate community (e.g., geology, stream slope, natural substrate,
season and climate), as is the case in this application. For the WV null models, EPA first
calculated the probability of capture (Pc) as the proportion of ataxon's occurrence in
spring and summer at all mountain reference sites (combined ecoregions 67, Ridge and
Valley, and ecoregion 69, Central Appalachians). For example, the stonefly Leuctra was
present at 94% of mountain reference sites in spring, 50 its Pc value for spring is 0.94.
EPA conducted this probability calculation for all non-chironomid taxa. The Pc's of all
taxa with a Pc greater than 0.1 were then summed to yield the Expected number of taxa at
a site for the given season (Table 7). Therefore, the Expected total number of taxa at a
mountain site in spring is 20.4 and in summer is 18.7.
A site that is a perfect match to the richness of expected indigenous taxa will score 1.0,
while downward deviation from 1.0 indicates increasing 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) simply indicates that more taxa were collected than
expected. (When a taxon is observed at a test site, that taxon is counted as 1 for the
observed score, so if the Pc is less than 1 for that taxon, this can lead to O/E scores
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greater than 1. For example, for the stonefly Leuctra, the Pc of capture is 0.94, so its
tally for E is only 0.94, but if the taxa is observed at a site, its tally for O is 1.
We chose the 5th percentile of reference site O/E scores as a threshold to correspond to
WVDEP's bioassessment threshold for assessing aquatic life support. This O/E 5th
percentile was 0.64, indicating a loss of 36% of expected taxa.
The WV null model indicates that macroinvertebrate assemblages in Pigeonroost Branch,
Oldhouse Branch and the upstream White Oak Branch are comparable to WVDEP
mountain eeoregion reference sites and that there is adverse impact (O/E less than 0.64)
to streams receiving drainage from MTM/VF operations in WV, including streams
adjacent to the Spruce mine area (Tables 3 and 4). The highest O/E scores (1.18) were
in Pigeonroost, Oldhouse and White Oak Branches. The lowest O/E scores (0.20) were
in Beech and Left Fork of Beech Creek, both of which have been impacted by mining
operations.
The model indicates that macroinvertebrate assemblages in Pigeonroost Branch and
Oldhouse Branch are comparable to WVDEP mountain eeoregion reference sites. In
contrast, past mining by Mingo Logan has led to the estimated extirpation of -70% of the
native expected taxa in their adjacent Dal-Tex mine operation (Table 7), It is highly
likely that conditions in the unfilled portions of Pigeonroost Branch and Oldhouse Branch
will follow this pattern of genus-level extirpation if valley fills are constructed in those
waters as currently authorized. See Appendix 1 for for more details on O/E. and model
development.
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Table 7. Summary of WV O/E null model results for the Spruce No. 1 Project area. The
biological impairment threshold is 0.64 (corresponding to the 5th percentile of WVDEP
reference site distributions). An O/E score of -1.0 means that the number of Observed
native taxa is equivalent to the Expected number of native taxa. SD = standard deviation.
Table 7
Mean (SD) O/E
Spruce No. 1
Dal-Tex
PigeonroostQidhouse, White Oak
Beech, LF
Beech
Rockhouse
Spring
0.98 (0.20); n=9
0.26 (Q.Q6);n=5
0.31 (0.10); n=3
Summer
0.85 (0.151; "=2
0.32 (0.08); n=2
0.38(0.08); n=2
• Adjacent mined sites include LF Beech, Beech, and Rockhouse
• The highest O/E scores were recorded in Pigeonroost, Ofdhouse, and White Oak
(each scored 1.18)
• The lowest O/E scores were recorded in Beech and LF Beech on Dal-Tex (each
scored 0.20)
Based on WVDEP Mountain reference sites, on average:
• Spruce No. 1 samples are missing ~2% of expected taxa in Spring, and ~15% in
Summer
• Dal-Tex sites are missing ~74% of expected taxa in Spring, and -68% in Summer.
• SD for Spruce No, 1 streams had similar or better precision (SD) to the WVDEP
reference model
• SD for Dal-Tex was very tow indicating that all observations consistently show
missing taxa
17
iii. Comparison of WVSCI scores
States routinely use macroinvertebrate assemblage data to assess compliance with their
narrative water quality standards and to determine support of aquatic life. For the past
several cycles of Section 303(d) lists of impaired waters, WVDEP has used a family-level
multi metric index called the WV Stream Condition Index or WVSCI. The WVSCI uses
six (6) component metrics to summarize and analyze family-level macroinvertebrate taxa
lists. The six metrics are total number of EPT (Ephemeroptera, Plecoptera and
Trichoptera or maflies, stoneflies and eaddisflies) taxa, total number of taxa, percent of
organisms that are EPT, percent of organisms that are Chironomidae (midges), the
percent of organisms in the top two dominant taxa, and the Hilsenhoff Biotic Index. All
metrics are computed at the family-level with a 200 fixed count subsample. The metrics
are scored against Best S tandard Values (BSVs) for the entire dataset, as a percent of the
BSV and normalized to a score of 100. The average of all six metrics makes up the final
WVSCI score. Simply put, the lower the score, the more degraded the macroinvertebrate
assemblage. For more information on the WVSCI, go to
http://www.wvdep.org/Docs/536 WV-Index.pdf.
17 Based on EPA data (Pond et al. 2008), all mined sites lost 47% of expected taxa, on average.
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Examination of the West Virginia dataset has shown that thejamily-level metrics used by
WVDEP .generally underestimate degradation of the maeroinvertebrate community
impairment of aquatic life uses as compared to more sensitive genus-level indices due to
the coarse level of taxonomy. Despite this lower sensitivity, bioassessments using
WVSCI have documented adverse impacts to aquatic life due to mining in streams on
mined sites near the project area
EPA sampled several streams within the Spruce Fork watershed for the Mountaintop
Mining/Valley Fill Programmatic Environmental Impact Study (PEIS) (Green et al. 2000;
Bryant et al. 2002). These assessments indicate that the unmined streams within and near
the project area, including White Oak Branch, Oldhouse Branch and Pigeonroost Branch
were high quality streams that fully support the aquatic life use, based on the family-level
WVSCI and water quality data (see Appendix 1 and 2). The streams located in the
historically MTM/VF mined areas located nearby (Rockhouse Branch, Beech Creek, and
the Left Fork of Beech Creek) had WVSCI scores that would indicate they did not fully
support aquatic life. These EPA data indicate that the aquatic life in streams on the
project area (i.e., Oldhouse Branch and Pigeonroost Branch) would be likely degraded to
the conditions exhibited in the Beech Creek and Rockhouse sub-watersheds after they are
mined.
WVDEP data and assessments confirm that the aquatic life is adversely impacted not
only in the nearby mined streams, but further downstream, on the mainstem of Spruce
Fork, Pond Fork and the Little Coal River (see Appendix 1). The adverse impacts in the
mainstem of Spruce Fork, Pond Fork, and the Little Coal are likely due to a combination
of stressors, including mining and residential stressors. (WVDEP 1997).
Construction of valley fills, sediment ponds, and other discharges into Pigeonroost
Branch and Oldhouse Branch as authorized by the DA Permit No. would be likely to
export additional contaminants (conductivity) to Spruce Fork. Due to the sensitivity of
native maeroinvertebrate wildlife to elevated and increasing levels of conductivity, these
contaminants are likely to hinder the maintenance or recovery of these biological
communities.
b. Salamanders
As stated above, the ecoregion where the Spruce No. 1 project is located has one of the
richest salamander fauna in the world. Impacts from the activities authorized as part of
the project will have a significant adverse impact on this wildlife group located within the
project area. Based on literature values (Williams 2002) 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 -5-6 per square meter along stream channels. Approximately seven
acres of stream channel would be filled in Pigeonroost Branch and Oldhouse Branch by
the project as currently authorized which means that more than 200,000 stream-dwelling
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salamanders would be buried by the currently authorized valley fills. It is not expected
that stream salamanders will return to the site due to the burial of their existing habitat
and the inadequacy of proposed mitigation to replace the habitat required by these
wildlife. Gingerich (2009) found no expected stream salamanders inhabiting 3-20 yrs old
sediment ditches (5 out of 5 mines) on West Virginia MTM areas. Furthermore the
USFWS has indicated that, to its knowledge, it has not been demonstrated that
salamanders return to surface-mined areas and achieve densities similar to those that
occurred prior to mining.
Since 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 would be likely to be lost from the aquatic ecosystem within Pigeonroost
Branch and Oldhouse Branch portions of the Spruce No. 1 mine area.
According to the USFWS, 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 are very likely to increase conductivity and
selenium levels in the downstream receiving waters (See Section V.B. 1 above),
salamanders that are not directly buried and killed beneath the fills are also likely to be
impacted; directly via exposure to these contaminants and perhaps indirectly via impacts
of contaminants on food sources. (Patnode, et al. 2005) Such impacts are likely to 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. These impacts would likely be
exacerbated by the loss of fresh water dilution from Pigeonroost and Old House Branch.
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 (Dr. Thomas
Pauley, Marshall University and personal communication with Jim Zelenak USFWS WV
Field Office). Therefore, the populations within the watersheds that will be impacted by
fill (the footprints of the valley fills and the downstream toxicity in the form of elevated
conductivity, selenium, and potentially other contaminants), and are very likely to be
significantly impacted.
Furthermore, as set forth in Section V.B.2.c.i. below, construction of valley fills and other
discharges into Pigeonroost Branch and Oldhouse Branch has the potential to contribute
to conditions that would support blooms 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.
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c. Fish
As described in Section IV.B.3. above, the fish assemblages in Pigeonroost Branch and
Oldhouse Branch are typical of headwater streams, containing only a few species. The
fish assemblages in Spruce Fork are in relatively good condition. While some studies
have documented adverse impacts to fish communities associated with surface coal
mining, based on the fish community in Spruce Fork downstream of the Dal-Tex
operation, it appears that the fish within Spruce Fork are fairly tolerant of increases in
conductivity and total dissolved solids. Nevertheless, increases in conductivity and total
dissolved solids and construction of sediment ponds associated with valley fills
authorized in Pigeonroost Branch and Oldhouse Branch will create conditions considered
favorable to the growth of golden algae (Prymnesium parvum), which has caused large
aquatic life kills. Fish also would be likely to be exposed to increases in selenium
concentrations, which could lead to bioaccumulation in fish tissues and to reproductive
effects (see Section V.B.I .a. above). Because of the potential to promote the growth of
golden algae and because of the likely increased exposure to selenium, Region III
concludes that construction of valley fills in Pigeonroost Branch and Oldhouse Branch
would be likely to have an adverse effect on the fish population in those waters and in
Spruce Fork.
i. Potential to promote growth of golden algae
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
currently authorized are likely to contribute to instream conditions in or near Spruce Fork
that may support 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 algae has been known to North
America since the 1980's (Baker et al., 2007) and has since become established in many
Texas and Oklahoma rivers and reservoirs. P. parvum is responsible for Harmful Algal
Blooms (HAB's) 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, which
destroyed thousands of fish, mussels and other aquatic life in Dunkard Creek, West
Virginia and Pennsylvania in September 2009. At the time of the Dunkard Creek aquatic
life kill, biologists reported observations of thousands of dead fish, mussels and
salamanders. 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 mainstem 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 mainstem 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.
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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 amounts to support P. parvum (estimated to be between 500
and 1000 mg/L (conductivity 714-1428 ^iS/cm).
3. Nutrients of great enough amount to initiate a bloom of P. parvum
4. pH greater than 6.5. Risk increases with increasing pH.
Areas of habitat that are pooled (large beaver dams, natural residual pools, or manmade
ponds)
EPA believes that the Spruce No. 1 project is likely to increase the likelihood that all five
factors are met within the Spruce Fork sub-watershed, as outlined below.
1) Proximity to Known Source: P. parvum was identified (in very high numbers) in Cabin
Creek of the Kanawha drainage, only 25 miles over the ridge to the East. Because this
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, WVDEP has identified Spruce Fork as a
"water of concern" because of its potential (due to already high levels of
TDS/conductivity) to support P. parvum blooms consistent with the factors shown above.
2) High TDS; The lower TDS limits for the growth of P. parvum appears to be -500
mg/1 TDS, or ~700jiS/cm conductivity for the ion mixtures typical of alkaline mine
drainage. Recent data indicate that growth of P. parvum increases 2-3 fold when
conductivity increases from 500 p.S/cm to 1000 ja.S/cm (unpublished data, WVDEP,
2010). The waters draining the nearby Dal-Tex Mine operation have conductivity levels
greater than these values. Many of the sampling sites on the mainstem 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 project include the Little Coal
River and West Fork/Pond Fork
As described in SectionV.A, construction of valley fills and other discharges authorized
by DA Permit No 199800436-3 (Section 10: Coal River) into Pigeonroost Branch and
Oldhouse Branch would be likely to increase levels of TDS/conductivity in Spruce Fork,
thus creating conditions more favorable to P. parvum.
In addition, DA Permit No. 199800436-3 (Section 10: Coal River) authorizes
construction of numerous sedimentation ponds in Pigeonroost Branch and Oldhouse
Branch, These will create areas of pooled habitat more favorable to P. parvum. During
low flows, when conductivity is highest, flow is lowest, increasing the possibility that
blooms could occur in very slow moving residual pools within the channel.
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3) Suitable Nutrient Levels: Nutrients in the Spruce Fork are of similar availability to
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.
4) High pH: Discharges from Spruce No. 1 are likely to be alkaline, consistent with pH of
discharges from Dal-Tex and other operations, etc. etc.
5) 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.
ii. Increased exposure to selenium
As set forth in Section V.B.I .a, construction of valley fills and other discharges
authorized by the DA Permit into Pigeonroost Branch and Oldhouse Branch would be
likely to result in elevated levels of selenium in receiving waters. While selenium is a
naturally occurring chemical element that is an essential micronutrient, excessive
amounts of selenium can also have toxic effects on fish. Selenium toxicity is primarily
manifested as reproductive impairment and birth defects due to maternal transfer,
resulting in embryotoxicity and teratogenicity in egglaying 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). A WV draft study indicates that
elevated selenium concentrations in fish eggs, increased larval deformity rates and •
increased deformity rates in mature fish are occurring in the Mud River Reservoir, Boone
County, WV due to mining activities. These adverse conditions were all associated with
elevated water column selenium concentrations (WVDEP, 2009, draft).
In summary, construction of valley fills and other discharges authorized by DA Permit
No 199800436-3 (Section 10: Coal River) into Pigeonroost Branch and Oldhouse Branch
would likely result In Increased instream levels of selenium that can have toxic effects on
fish.
iii. Other potential impacts to fish
A number of studies have documented adverse impacts to fish communities associated
with surface coal mining. It is important to consider basin size when assessing the
potential effects of valley fills because small streams (less thanlO km2) have shown
effects to the fish assemblage while larger streams have not (e.g., Fulk et al. 2003). As
noted by Fulk et al. (2003) using fish indices like the Mid-Atlantic Highlands Index of
Biotic Integrity (MAHA IB I) of McCormick et al. (2001) is problematic in small streams
that are species depauperate (limited diversity) because the index is greatly affected by
the addition or subtraction of one or two individuals of a different species. Nevertheless,
Fulk et al. did analyze small streams in their report and found significant differences in
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total IBI scores between mined and unmined streams. This difference was attributed to
changes in cyprinid species richness and the percent of the assemblage composed of
benthic invertivores. There was no significant difference in percent cottids (sculpin).
Some 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).
Fulk et al. (2003) used the Mid-Atlantic Highlands Index of Biotic Integrity (IBI - a
multi-metric index used to assess biotic health) to analyze fish data from 27 streams in
West Virginia. In their study, Fulk et al. (2003) classified streams (no mining in the
watershed, mountaintop mining in the watershed, sites downstream of valley fills, and
sites with both mining and residential development in the watershed) and compared fish
assemblage health among stream classes. The study showed that assessment scores from
the sites downstream of valley fills were significantly lower than scores from sites
without mining in the watershed, indicating that fish communities were degraded in sites
downstream of valley fills. Sites with residences in addition to mining, however, scored
similarly to the unmined sites.
Sites that were sampled in Spruce Fork for the PEIS were classified as "filled with
residences." Sampling data in the Spruce Fork sub-watershed downstream of the Dal-
Tex operation scores similarly to filled residential sites in the PEIS, There is no
difference between filled residential sites and unmined sites in the PEIS.
In summary, there remains the potential that construction of valley fills and other
discharges authorized by DA Permit No 199800436-3 (Section 10: Coal River) into
Pigeonroost Branch and Oldhouse Branch have the potential to promote the growth of
golden algae and increase exposure to selenium. For these reasons, Region III concludes
that construction of valley fills and other discharges authorized into Pigeonroost Branch
and Oldhouse Branch would be likely to have an adverse effect on the fish population in
those waters and in Spruce Fork.
d. Water-dependent birds
Loss of headwater streams from the project would be likely to impact water dependent
birds, such as the Louisiana waterthrush, that require forested headwater streams for
foraging on insects and nesting by elimination of the headwater areas associated with
Pigeonroost Branch and Oldhouse Branch.
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The Louisiana waterthrush has been designated by USFWS as a Bird of Conservation
Concern (BCC) within the Appalachian Mountains Bird Conservation Region (AMBCR)
that may be impacted by Mountamtop Mining - Valley Fills (MTM-VF).
According to USFWS, the Louisiana waterthrush is an area-sensitive riparian-obligate
species that nests and forages along headwater streams of intact interior forests; it relies
for breeding success on the diverse and productive assemblage of aquatic insects
supported by healthy headwater systems (Mattson et al, 2009). Studies indicate that
breeding territory density and occupancy were reduced along streams where benthic
macroinvertebrate communities had been degraded due to anthropogenic land uses and
acidification. Lower breeding territory densities occurred along streams impacted by acid
mine drainage more so than along circumneutral streams. Similarly, some indices of
benthic macroinvertebrate integrity were higher where breeding Louisiana waterthrushes
were present than areas from which they were absent. Stream reaches where breeding
birds were detected had a greater proportion of pollution-sensitive benthic
macroinvertebrates than reaches where they were not detected supporting the concept that
good water quality is a key component of the species breeding habitat.18 Management
for this species has focused on protecting core wooded riparian habitat, including
establishment of undisturbed riparian forest cover, and preservation and improvement of
water quality to ensure aquatic insect biomass and diversity.
For water-dependent wildlife, like the Loiusiana 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).
3. Summary
In summary, construction of valley fills, sedimentation ponds, and other discharges
authorized by DA Permit No. 199800436-3 (Section 10: Coal River) to. Pigeonroost
Branch and Oldhouse Branch would eliminate headwater stream systems that support
some of the last remaining least-degraded conditions within the Coal River sub-basin,
destroy (through burial) diverse and healthy wildlife communities and habitat within
those headwater stream systems. In addition, the discharges would likely convert
previously healthy, functioning headwater streams into sources of contaminants to
downstream waters that would likely adversely affect wildlife in those downstream
waters. These impacts likely will cause significant degradation of the Nation's waters as
described in 40 C.F.R. 230.10(c), particularly within the context of of the mine-impacted
Coal River sub-basin and Spruce Fork sub-watershed. As set forth in Section V.C.
18 In addition to stream pollution from anthropogenic land uses, elevated predator numbers from landscape-
scale forest fragmentation and the loss of riparian forest canopy could also negatively impact future
population levels of the Louisiana waterthrush. Ongoing impacts associated with landscape disturbances,
including defoliation, increased stream temperatures, and compositional shifts in benthic macroinvertebrate
communities, also could reduce populations in the AMBCR. Therefore, measures of Louisiana waterthrush
distribution and reproduction may be useful indicators of both stream and forest ecosystem integrity.
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below, Region III has determined that the compensatory mitigation plan for this project
would be unlikely to compensate adequately for the impacted resources or to reduce the
impacts described above to an acceptable level.
C. Mitigation is not likely to ffset anticipated impacts
The Section 404(b)(1) Guidelines require that the permit authorize only the least
environmentally damaging practicable alternative. 40 C.F.R. 230.10(a). In addition, no
discharge of dredged or fill material shall be permitted unless appropriate and practicable
steps have been taken which will minimize potential adverse impacts of the discharge on
the aquatic ecosystem. 40 C.F.R. 230.10(d). Thus, impacts must be first avoided and
then minimized It is only after practicable and appropriate steps have beeen taken to to
avoid and minimize impacts that compensatory mitigation to offset unavoidable adverse
impacts to aquatic resources authorized by Clean Water Act Section 404 permits and
other Department of the Army (DA) permits may be considered.
i1
Analysis by Region III indicates that there appear to be alternative configurations that
would avoid much of the discharges to Pigeonroost Branch and Oldhouse Branch.
Because the scope of this Recommended Determination is limited to withdrawal of
specification of Pigeonroost Branch and Oldhouse Branch as disposal sites for discharges
of dredged and/or fill material in connecton with the Spruce No. 1 Mine, Region III takes
no position at this time as to whether the alternatives that Region III has identified would
be likely to result in acceptable or unacceptable effects on wildlife or satisfy the Section
404(b)(1) Guidelines.
If constructed as authorized the Spruce No. 1 Mine will result in direct impacts (through
discharge of dredged and/or fill material) to approximately 35,368 linear feet (about 6.6
miles) of stream in Pigeonroost Branch and Oldhouse Branch. The impacts from these
discharges are discussed in Sections V.A. & V.B. above.
While Region III recognizes that the project includes mitigation efforts (including stream
creation and enhancement of existing streams) to compensate for unavoidable adverse
impacts, Region III is concerned that known compensatory mitigation techniques would
be unlikely to replace the high quality resources in Pigeonroost Branch and Oldhouse
Branch. Additionally, Region III believes that the current mitigation plan does not
adequately account for the quality and function of the impacted resources.
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 sedimentation ponds,
and the creation of 43,565 linear feet of on-bench stream channel within the project area.
Off-site compensation includes stream enhancements to Spruce Fork and Rockhouse
Creek through a combination of physical, aquatic habitat, and stream stabilization
improvements. Finally, the CMP 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.
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Both EPA and the USFWS have regularly identified problems with the mitigation
techniques that are part of the CMP for the Spruce No. 1 Mine. Region Ill's comments
on the 2006 draft and final EISs for the Spruce No. 1 Mine expressed concern that the
compensatory mitigation plan did not fully mitigate all adverse impacts and was
inadequate in terms of its lack of functional assessment and concerns whether headwater
stream creation would in fact replace impacted resources Region III emphasized the
importance of headwater stream functions that would be lost and likely not replaced,
particularly by conversions of existing drainageways to streams as described in the CMP.
In their 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."
As discussed below, 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 Region III believes that the anticipated
level of adverse impacts associated with the Spruce No. 1 Mine will not be adequately
offset by the required compensatory mitigation.
1. Proposed mitigation likely 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. Studies have demonstrated that replacement of streams is among the
most difficult and frequently unsuccessful forms of mitigation. 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 these studies, the Corps and EPA have stated:
"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 and others 2007). Accordingly, we have added a new
paragraph at 33 CFR 332.3(e) (3) [40 CFR 230.93(e) (3)j 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."19
19 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 those regulations do not
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Furthermore, the USFWS frequently has stated that, "we continue to believe that it is not
possible to fully replace the critical aquatic and terrestrial ecosystem functions of healthy
headwater streams," and that USFWS "is not aware of any scientific support for the
concept that. . . ditches can be considered biologically equivalent to, or even rough
approximations of, flowing streams."
The streams of Pigeonroost and Oldhouse Branch have been shown to exhibit high water
quality and high functioning capacity. Given the difficulty of stream re-establishment to
mitigate for impacts to streams in general, Region III believes it is even more unlikely
that high value streams such as these can be replaced by on-site stream creation
techniques involving conversion of sediment ditches. EPA Region III believes that the
mitigation for the Spruce No. 1 project is unlikely to offset the anticipated impacts to an
acceptable level.
2. 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. Region III believes that the compensatory
mitigation plan 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. .
Overall, through onsite visits and biological data collection, Region III conservatively
estimates that, within the mine footprints of Right Fork Seng Camp, Pigeonroost, and
Oldhouse Branch, over five miles of stream (-27,000 feet) are perennial. 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 would 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.
3. The compensatory mitigation plan lacks an adequate functional
assessment
apply to DA Permit No. 199800436-3 (Section 10: Coal River). Nevertheless, the above-quoted statement,
taken from the preamble to those regulations, 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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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. Compensatory
mitigation must 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/restore streams that are capable of
sustaining comparable biological, communities and chemical and physical characteristics
of the streams that have been eliminated by the mining activity.
The CMP utlized 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 status20.
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.
The USFWS expressed this concern in regard to the CMP:
"The Stream Habitat Unit (SHU) assessment methodology selected by the
applicant only considers the physical characteristics of the stream. It does not
include biological or chemical characteristics of the stream. Without those
attributes, the assessment does not meet the requirements of a "functional"
assessment. The Service recommends that the applicant use an assessment
method that incorporates biological and chemical, as well as habitat,
characteristics to determine the true function of the stream."
The basis for the SHU as presented by the CMP is based on the premise that stream
habitat (HAV as scored by EPA's RBP Habitat Assessment) accounts for the total
ecological "currency" at the site. This premise has been demonstrated to be flawed.
Studies (for example, Fritz et al, 2010) have found no correlation between functional
measurements and RBP Habitat Assessments. More importantly, there was no use of
existing water chemistry or biological resource measurements factored into the SHU's
ecological currency of the sites. This shortcoming underscores the need for a more
thorough investigation of impacts and mitigation offsets.
Since the permittee applied the SHU methodology, which has no functional component,
to describe the streams, the compensatory mitigation plan only addresses the physical
elements of the streams. As a result of this EPA believes the current CMP does not
adequately account for or replace the functional components of the lost streams. Region
III does not believe that increased ratios of intermittent or ephemeral streams offsets this
inadequacy. While DA Permit No. 199800436-3 (Section 10: Coal River) refers to
biological success criteria, the permit terms do not clearly require the replacement of lost
20 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 allowing Mingo Logan to use this approach to help justify their mitigation performance and success
criteri a.
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biological function and comparable stream chemistry to meet adequate compensatory
mitigation success criteria,
4. Conversion of erosion control channels would be unlikely to
successfully replace the impacted resources
Based on observations of other on-bench SMCRA drainage or erosion control ditches
(Kirk 1999; Green et al. 2000, and Gingerich 2009), the CMP's proposed conversion of
these ditches is unlikely to successfully replace the impacted resources, alone or in
concert with other proposed mitigation contained in the CMP. Over 50% of the linear
stream length in the Spruce mitigation plan relies on conversion of ono-bench SMCRA
drainage or control ditches, On-bench sediment ditches are a consequence of SMCRA-
required Best Management Practices (BMPs) to control runoff. Data show that water
quality in these types of sediment ditches in the MTM region is typically highly degraded
as a result of water in these ditches percolating through mine spoil. Even when the
sediment ditches are enhanced for benthic substrata and riparian vegetation, such as
through adding boulder clusters every 500-1000 feet, resulting water quality will likely
be so degraded that the ditches will not meet or exceed pre-mining water chemistry
baselines.
As described previously, degraded water chemistry (such as the addition of conductivity
and selenium as a result of water percolation through mine spoil) typically results in
degraded biological communities. As a result of this degraded water chemistry, these
created waterbodies would be unlikely to support the healthy and diverse biological
communities that they are intended to replace. These created streams would be
considered degraded and would be unlikely to successfully replace Pigeonroost Branch
and Oldhouse Branch as sources of freshwater dilution and healthy biological
communities and function, either alone or in concert with other proposed mitigation
contained in the CMP.
A more detailed discussion of on-bench sediment ditches for mitigation is provided in
Appendix 3.
5. The CMP does not account for the loss of ecological services of
headwater streams
Another compelling problem with the Spruce No. 1 CMP is the separation of the
ecological elements into single, separate aspects of the ecology with limited treatment of
the interconnectedness of the entire ecosystem. The forested slopes and coves located
within the Spruce No. 1 project area are drained by a dendritic mosaic of ephemeral,
intermittent and perennial headwater streams and water courses. 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.
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In a pre-mined condition receiving streams are recipients of allochthonous (i.e., material
originating from outside of the stream system) material 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. This is due to the altered character of the
soil and vegetation communities in a post-mine environment.
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.
Mountaintop mining and associated valley fills 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.
Assumptions that much of the structure and function of the pre-mined conditions can be
recaptured with mitigation are very optimistic and highly speculative.
In summary, Region III believes that it is unlikely that the adverse impacts associated
with the Spruce No, 1 project as authorized would be offset by the mitigation described in
the CMP.
D. Summary
In summary, Region III believes that Spruce No. 1 Mine would 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. Region III 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 historic stream losses in the
Spruce Fork and Coal River watersheds. Region III does not believe the potential
impacts of these stream resources can be adequately mitigated to reduce the impacts to an
acceptable level by the compensatory mitigation described in the CMP.
VI. Other Considerations
As set forth above, Region III 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 would be likely to have an unacceptable
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adverse effect on wildlife that will not be offset by the compensatory mitigation plan.
This section identifies other, additional considerations that are of concern to the Region
but are not part of the basis for our conclusion that the impacts would be likely to have an
unacceptable adverse effect.
A. Impacts From Activities Dependent Upon Specification of Pigeonroost
Branch and Oldhouse Branch as Disposal Sites for the Construction
of Valley Fills and Sedimentation Ponds for the Spruce No. 1 Mine
To the extent that discharge of excess spoil to areas outside jurisdictional waters and
other mining-related activites, such as deforestation, necessarily depend upon
specification of Pigeonroost Branch and Oldhouse Branch for construction of valley fills
and sedimentation ponds for the Spruce No. 1 Mine, Region III has considered those
impacts.
1. Migratory Birds
Approximately 2,278 acres of deciduous forests will be destroyed by the Spruce No. 1
Mine. 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 by Mountaintop
Mining - Valley Fills. 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 Section_V.B.2.d 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).
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 the Spruce No. 1 Mine may adversely
impact their breeding populations (Weakland and Wood 2005, Wells 2007).
The project also could 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 the loss of interior forest is 1.75-5.0
times greater than the direct loss of forest due to mountaintop mining. Investigators
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concluded that the loss of Appalachian interior forest is of global significance due to the
rarity worldwide of large expanses of temperate deciduous forest.
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 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 viability in
the Spruce Fork watershed and the larger ecoregion.
In recent communications with Region III (August 2010) in regards to EPA's Proposed
Determination on the Spruce No. 1 Mine the USFWS indicated its belief that past
selective logging in some parts of the project area would not preclude use of the site by
forest interior species of migratory birds or that birds currently using the project area
during the breeding season will be unaffected by the mine and associated valley fills.
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 (U.S. Fish and
Wildlife Service 1998).
The USFWS expressed concerns specific to bird populations within the Coal River Sub-
basin related to adverse impacts of the Spruce No. 1 Surface Mine. These concerns
included ..."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 also continues to believe that construction of the Spruce No. 1 Surface 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
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
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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
USFWS believes that construction of the Spruce No. 1 Surface Mine is likely to result in
permanent and/or long-term loss of breeding habitats important to several migratory bird
species of conservation concern.
2. Bats
Large-scale mountaintop removal/valley fill mining has been identified among the threats
to bat species in the region according to information supplied to EPA by 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 unacceptable adverse
impacts to these wildlife resources.
As set forth in Section IV.B.5., it is possible that Indiana bats could occur in or near 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). 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. Both species occur in the vicinity of the
Spruce No. 1 Surface Mine, and both were captured during mist net surveys at the project
site. Five eastern small-footed bats and 16 northern long-eared bats were captured during
mist net surveys in 2004, representing 7.6 and 24.2 percent, respectively, of all bats
captured (U.S. Army Corps of Engineers 2006, Appendix M). Given the rapid spread
and potentially dramatic effects of WNS, the potential exists that even more bat species
could decline to the point that listing under the ESA will be warranted.
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. Commonly 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.
B. Environmental Justice Concerns
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
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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 is located in a census block
group which contains 335 people. A census block group is a geographical unit used by
the U.S. Census Bureau (Bureau) which 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 is located in a census block group where the average per capita income is
$15,411. This is over $6,000 less than the national average of $21,587 and over $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.
Region III notes that the Corps included a discussion of environmental justice in the
Spruce No. 1 EIS, however, as noted in EPA's comment letters in June and October 2006,
the Region III remains concerned that the Corps did not fully consider and address the
potential for disproportionately high and adverse effects on this population. 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 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.
Consideration of these issues in the context of authorizing the significant disturbance
associated with construction of valley fills associated with the Spruce No. 1 Mine should
include a characterization of the status of residents near the site and the conditions they
face including any effects relating to the proximity of the blasting zone, locations of
discharges of fill material, truck traffic, noise, fugitive dust, and habitat loss. Information
concerning sources of drinking water for the effected populations (including municipal
water supplies and private sources of drinking water including streams and/or wells) also
should be considered.
The cultural implications of mountain top mining also were not sufficiently considered.
The mountains affected by Spruce No. 1 are viewed as a cultural resource by many
residents. In many cases the mountains have helped define their society and influence
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
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gathered wild medicinal herbs such as American Ginseng (Panax quinquefolius) and
Goldenseal (Hydrastis Canadensis). In many cases, collection of these wild herbe
provide much needed extra income to local communities during times of unemployment
or economic hardship (Baily 1999, Hufford, 1997). Removing these mountains may have
profound cultural changes on the residents in the area so it is important that cultural
impacts be considered as well.
It is important that consideration be given as to whether the types of impacts described
above will extend over a broad area or will be concentrated in particular areas. Detailed
maps outlining the residential areas in relation to these activities may help accomplish
this. It is also important that the effects be considered both independently and
cumulatively. Considering the effects cumulatively provides the most realistic
"snapshot" of what the community will be facing when the project reaches fruition.
Having this information readily available will help engage the affected communities
during public outreach and ensure that they can be meaningfully involved.
EPA considers action pursuant to section 404(c) within the scope of the policy directive
of Executive Order 12898. A section 404(c) action has the potential to affect human
health or the environment of low-income or minority populations. Accordingly, EPA
includes environmental justice concerns when undertaking an action pursuant to section
404(c). In this case, Region III conducted a public hearing on May 18, 2010 and
received comments both orally and in writing. Region III 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 Section 404(c) action would preclude
any activities currently authorized at the Spruce No. 1 Mine. At the same time, Region
III 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 is a
"...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 Section 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 its environmental justice analysis in the context of this
Recommended Determination under Section 404(c) action the potential effects
prohibiting the discharge will have on the municipal water supplies, shellfish beds,
fishery areas, wildlife and recreational areas (i.e., 404(c) resources) of the project site.
EPA also considered whether those effects, if any, of EPA's 404(c) action on the 404(c)
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resources will have a "disproportionately high and adverse human health or
environmental [effect]" on "minority populations and low-income populations" of the
project area.
EPA concludes, to the greatest extent practicable, after performing the EJ analysis
contemplated in Executive Order 12898, and incorporating public comment, thatthis
Recommended Determination under 404(c) in and of itself or if incorporated within any
Final Determination, 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 Recommended Determination is limited to withdrawal of
specification of Pigeonroost Branch and Oldhouse Branch as disposal sites for the
discharge of dredged and/or fill material for the construction of valley fills and sediment
ponds associated with the Spruce No. 1 Mine as currently authorized. This action neither
prohibits nor authorizes coal mining.
C. Public Health
As interest in the overall environmental and human health effects from mountain top
mining has been increasing, a growing body of research has suggested that health
disparities are not uniformly distributed across the Appalachian region but are
concentrated in areas, like the Spruce No. 1 Mine project area, where MTM activity takes
place. Region III has conducted a preliminary review of existing literature on health
impacts from MTM. The studies reviewed by Region III sought to evaluate whether
associations between MTM 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. This more comprehensive research, including
environmental chemical analyses and biological monitoring, would require significantly
greater study than is appropriate for this Recommended Determination.
However, the results of these associational studies identify significant correlations
between MTM activity and a variety of health disparities. These study findings indicate
that health disparities are elevated in Appalachian coal mining regions for mortality rates
for chronic respiratory, cardiovascular, and kidney disease, and for some forms of cancer
including lung cancer. These studies by their nature could not and do not establish any
causal linkage between MTM and these elevated rates of adverse health effects, but
because they point to significant associations between MTM 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
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.
The studies noted the following:
• Residents of areas in which coal mining activities take place have higher risk of
cardiovascular disease (CVD) (OR-1.22, 95% CI 1.14-1.30), angina or coronary heart
disease (CHD) (OR=1.29, 95% CI=1.19-1.39), and heart attack (MI) (OR=1.19, 95% CI
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= 1.10-1.30) after adjusting for smoking, alcohol, gender, education, race, income,
physician supply, and metropolitan status.
• Lung cancer mortality is higher in heavy coal-mining areas, followed by all other areas
of Appalachia and the nation (p<.001) after accounting for covariates of gender,
education, poverty, race, urban status, smoking, southern states, and Appalachian
country.
• Total chronic heart, respiratory, and kidney disease, and kidney disease mortality rates
were significantly higher in coal mining areas of Appalachia than non-coal mining areas.
• Among West Virginia adults, residential proximity to heavy coal production was
associated with poorer health status and with higher risk for cardiopulmonary disease,
chronic lung disease, hypertension, and kidney disease, after controlling for covariates
(Spruce No.l mine is in an area characterized by heavy coal production.
• Distance-weighted, at-risk population coal mining exposure measure was significantly
correlated to cancer mortality in WV. For total cancer and three cancer-type subgroups,
exposure was correlated after controlling for smoking rates. The variables had positive
spatial autocorrelation and were spatially dependent. All components of mining
(injection, preparation plants, impoundments, and mining sites) were related to one or
more cancer types.
• Volume of coal mining significantly related to hospitalization risk for hyptertension
(odds increased 1% for each 1462 tons of coal) and COPD (odds increased 1% for each
1873 tons of coal) controlled for age, gender, insurance, co-morbidities, county poverty,
county and social capital.
• The heaviest coal mining areas of Appalachia had the poorest socioeconomic
conditions. Before adjusting for covariates, the number of excess annual age-adjusted
deaths in coal mining areas ranged from 3,975 to 10,923, depending on years studied and
comparison group.
• Living in proximity to mining areas increases the odds of low birth weight. In mining
areas, odds of low birth weight are increased by 14 to 16% depending on the amount of
mining as compared to areas with no coal mining.
• Ecological integrity was inversely related to age-adjusted cancer mortality rates (total
p<.01; digestive, breast, and respiratory p<.01; urinary p<.05), controlled for poverty,
access to health care providers, urbanization, education, smoking. Ecological integrity
was significantly related to mining and cancer mortality and mining was significantly
related to total cancer mortality.
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D. Cumulative Impacts
Fundamental to the Section 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 C.F.R. § 230.1(c).
The Section 404(b)(1) Guidelines (at 40 C.F.R. § 230.11(g)) also direct that factual
findings be made regarding cumulative impacts on the aquatic ecosystem and that those
findings be considered in determining whether the discharge complies with the foregoing
restriction. To that end, the Section 404(b)(1) Guidelines describe the factual finding that
must be made with respect to cumulative impacts as follows:
Determination of cumulative effects on the aquatic ecosystem. (1) 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 result in a
major impairment of the water resources and interfere with the productivity and
water quality of existing aquatic ecosystems.
For purposes of this analysis, Region III has considered cumulative impacts to the Coal
River sub-basin (891 mi2) and the Spruce Fork sub-watershed (126.4 mi2) 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 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 (see
Figure 14).
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Legend
HUC 12 Watersheds
Mining in Permit
Reclaimed in Permit
Reclaimed Outside of Permit
Mining Outside of Permit
Forestry
Construction
Coal River Watershed
1:350,000
0 2.5 5 7.5 10^
Figure 14: Illustration of the types of disturbance currently found in the Coal River sub-basin.
As has been described in Section IV. A. 2., the Coal River sub-basin and the Spruce Fork
sub-watershed are already impacted by mining activity. Based upon the National Land
Cover Database (NLCD) change product for 1992-2001 and WVDEP's GIS mining files,
more than 257 past and present surface mining permits have been issued in the Coal
River sub-basin, which collectively occupy more than 13% of the land area (see Figure
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13). In the Spruce Fork sub-watershed, more than 34 past and present surface mine
permits have been issued, which collectively occupy more than 33% of the land area.
The proposed project will affect an additional 2,278 acres (3.56 mi2), which is equivalent
to approximately 2.8% of the Spruce Fork sub-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
"[l]ocate and protect the few remaining high quality streams in the Coal River
watershed...." Pigeonroost Branch and Oldhouse Branch, two of the streams directly
affected by the proposed action, are high quality resources that support an exceptionally
high number of mayfly taxa, both within the Central Appalachian Region and statewide
(see Appendix 1). By directly impacting these streams, which serve as refugia for aquatic
life and potential sources for recolonizing nearby waters, the proposed action will be
likely to have a significant cumulative effect on the aquatic ecosystem integrity in the
sub-basin.
EPA is aware of at least 11 additional mining operations either proposed or authorized
but not constructed in addition to Spruce No.l 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
would be likely to have significant secondary and cumulative effects on downstream
waters in the Coal River sub-basin. Impacts from these projects can be expected to
include reduced freshwater dilution, reduced headwater stream functional inputs,
increased discharges of pollutants from the valley fills, including total dissolved solids
(TDS) and selenium, and the potential to contribute to existing impairments within the
Spruce Fork watershed and the Coal River sub-basin.
The Little Coal watershed contains 98 miles of impaired streams (33% of the streams in
the watershed), and the Coal River sub-basin has 743 miles of impaired streams (30% of
the streams in the sub-basin). WVDEP has listed these stream segments for selenium and
biological impairment. The additional fills associated with the proposed action, in
combination with past and present mining by the applicant and other mining in the sub-
basin, will likely cause or contribute to significant cumulative adverse impacts to the
stream resources in the Coal River sub-basin, and will likely contribute to current water
quality impairments within the sub-basin.
Preliminary results from current research based upon WVDEP data show a strong
correlation between the percentage of a watershed that is disturbed by mining activity and
downstream conductivity levels (see Figure 15).
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Coal River Watershed
Relationship between % Mining and Conductivity
2™" Summer flow
COND = 484 + 18 (% Mining}
R2 = 0.59
o
o
Thresholds
Cond % IV! sp % M su
BOO 2
500 12 1
750 23 15
1000 34 30
10 15 20 25 M 15 « 45 50 55 M 65 70
% Mining
'Analyses based on mining only sites; Equations do not differ significantly.
Figure 15: Coal River Watershed: Mining and Conductivity
Levels of conductivity on the mainstem of Spruce Fork, Pond Fork and the Little Coal
River exceeded 500 jiS/cm almost every time WVDEP sampled these sites in 1997,
2002-2003, 2005 and 2008. The US Army Corps of Engineers Huntington District also
reported conductivity values as part of the baseline water quality for Spruce Fork
upstream and downstream of the proposed project area in the EIS for the proposed project
(U.S. Army Corps of Engineers Huntington District 2006, DEIS Spruce No. 1 Mine). The
DEIS reported that the minimum, average and maximum conductivity levels for Spruce
Fork upstream of the propose project area were 112, 656 and 1130 |uS/cm at that time,
indicating that on average the conductivity in Spruce Fork was already elevated greater
than 500 jiS/cm, and maximum conductivity levels exceeded twice that level.
Because construction of the Spruce No. 1 project and 11 additional mining operations
would increase the percent of the sub-basin that is impacted by mining activity, it can be
expected that these water quality effects will likely be exacerbated by these additional
mines. EPA believes that the Spruce No. 1 project, in conjunction with the other mining
operations either under construction or proposed for the Coal River sub-basin, will be
likely to contribute to the significant cumulative loss of aquatic resources and degradation
of water quality.
VII. Conclusions and Recommended Determination
Based on the foregoing analyses and upon consideration of the public comments received
in response to Region Ill's Proposed Determination, Region III has determined that
discharges of dredged and/or fill material to Pigeonroost Branch and Oldhouse Branch
for the purpose of constructing the Spruce No. 1 Surface Mine as currently authorized by
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DA Permit No. 199800436-3 (Section 10: Coal River) would likely have unacceptable
adverse effects on wildlife, DA Permit No. 199800436-3 (Section 10: Coal River)
authorizes construction of valley fills and sedimentation ponds and other discharges into
Pigeonroost Branch and Oldhouse Branch that will bury approximately 6,6 miles of high
quality headwater streams. Pigeonroost Branch and Oldhouse Branch support diverse and
healthy biological communities comparable with conditions in nearby White Oak Branch,
recognized by WVDEP as supporting least-degraded, reference quality conditions.
Pigeonroost Branch and Oldhouse Branch represent streams within the larger 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 within the context of the Spruce Fork sub-watershed and Coal River sub-
basin.
As currently authorized the DA Permit discharges to Pigonioost Branch and Oldhouse
Branch would bury wildlife that live in those streams or within the footprint of the valley
fills and minethrough areas. Other wildlife will lose important headwater stream habitat
on which they depend for all or part of their lifecycles.
Wildlife impacts from the activities authorized by the permit will not be limited to direct
burial of wildlife. Burial of Pigeonroost Branch and Oldhouse Branch would likely result
in effects to downstream waters and downstream wildlife 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, currently
authorized discharges to Pigeonroost Branch and Oldhouse Branch would be likely to
contribute to conditions that would support blooms of golden algae that release toxins
that kill fish and other aquatic life would likely contribute to conditions that would
support blooms of golden algae that release toxins that kill fish and other aquatic life.
Particularly in light of the high quality of the impacted resources, it is unlikely that the
CMP for the project would offset these impacts. The proposed on-site created streams
will be unlikely to replace the physical, chemical, and especially biological functions of
Pigeonroost Branch and Oldhouse Branch.
For these reasons, I find that discharges to Pigeonroost Branch and Oldhouse Branch as
currently authorized by DA Permit No. 199800436-3 (Section 10: Coal River) would be
likely to have unacceptable adverse effects on wildlife.
Region III notes that, in addition to the adverse effects that form the basis of this
Recommended Determination, there are other impacts about which Region III continues
to have concerns. To the extent that discharge of excess spoil outside jurisdictional
waters, deforestation, and other activities associated with the project depend upon
specification of Pigeonroost Branch and Oldhouse Branch as disposal sites, adverse
impacts on wildlife would likely result from those dependent activities. In addition,
impacts from the project will contribute to cumulative impacts from multiple surface
mining activities in the Coal River sub-basin. Region III continues to be concerned
regarding environmental justice issues.
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Accordingly, pursuant to Section 404(c) of the Clean Water Act and its implementing
regulations at 40 C.F.R. Part 231 and for the reasons set forth herein, it is my
recommendation 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 and/or fill material for construction of the Spruce No. 1 Surface
Mine be withdrawn.
Dated: September 24. 201Q
Shawn M. Garvin
Regional Administrator
EPA Region III
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