ENVIRONMENTAL PR OTECTION AGENCY

EPA-R03-OW-2009-0985 Proposed Determination to Prohibit, Restri ct, or Deny the Specification, or the Use for Specification (including Withdrawal of Specification), of an Area as a Disposal Site; Spruce No. 1 Surface Mine, Logan County, West Virginia

AGENCY: Environmental Protection Agency (EPA)

ACTION: Notice

SUMMARY : Pursuant to Section 404(c), the United States Environmental Protection Agency Region III (EPA) is requesting public comments on its proposal to withdraw or restrict use of Seng Camp Creek, Pigeonr oost Branch, Oldhouse Branch, and certain

tributaries to those waters in Logan County, West Virginia to receive dredged and/or fill

material in connection with construction of the Spruce No. 1 Surface Mine (Spruce No. 1 Mine or the project).

An important part of EPA’s mission is to en sure our environment a nd public health are protected and restored for current and future generations. Among ways that EPA carries out its mission is by ensuring appropriate im plementation of the Clean Water Act. Section 404(c) of the Clean Water Act (C WA) authorizes the U.S. Environmental Protection Agency (EPA) to prohibit, restrict , or deny use of any defined area in waters of the United States for speci fication (including the withdrawal of specification) for the discharge of dredged and/or fill material whenever it determines, after notice and opportunity for public hearing, that use of su ch sites to receive dredged and/or fill material would have an unacceptable advers e impact on various resources, including fisheries, wildlife, municipal water supplies, and recreational areas. This authority is often referred to as EPA’s authority to “v eto” a CWA Section 404 permit to discharge dredged and/or fill material to waters of the United States.

The Spruce No. 1 Mine is one of the largest surface mining operations ever authorized in Appalachia. In connection with this proj ect, Mingo Logan Coal Company (permittee) has been authorized by the U.S. Army Corps of Engineers, Hunti ngton District (Corps) (Department of the Army Permit No. 199800436-3 (Section 10: Coal River)) to construct six “valley fills” and numerous sedimentation ponds in Seng Camp Branch (already partially constructed), Pigeonroost Branch (n ot yet constructed), Oldhouse Branch (not yet constructed), and certain tributaries to those waters by discha rging excess overburden (or spoil) generated by surface coal mining ope rations. The project as authorized will directly impact 2,278 acres, including more th an seven miles of stream, and indirectly impact other waters. EPA Region III acknowledges the project has undergone extensive regulatory review and has been modified from the original proposal in order to reduce impacts. EPA Region III is taking this act ion because it believes, despite all the regulatory processes intended to protect the e nvironment, that constr uction of Spruce No. 1 Mine as authorized would destroy streams and habitat, cause signi ficant degradation of on-site and downstream water quality, and could therefore result in un acceptable adverse impacts to wildlife and fishery resources. Th ese impacts are described in more detail in

Section IV below.

1The goal of protecting water quality, plant and animal habitat, navi gable waterways, and other downstream resources requ ires the careful protection of headwater streams and life they support. These streams are like the capilla ries within our 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.

Applying the lessons of the past, we now know that failure to control mining practices has resulted in persistent environmental degr adation in the form of acid mine drainage and other impacts that cost billions to remedy. While the Surface Mining Control and Reclamation Act (SMCRA), the CWA, and other laws have put in place controls addressing some environmental impacts, including acid mine draina ge, recent studies and experience point to new environmental a nd health challenges that were largely unconsidered until more recently. We know th e regulatory controls currently in place have not prevented adverse water quality and aquatic habitat impacts from other surface mining operations. We also know the same t ypes of impacts as those anticipated from this project have had previously unfor eseen environmental consequences.

Public health issues surrounding the types of impacts associated w ith the Spruce No. 1 project are not well understood. EPA has b een presented with household-specific and anecdotal information that suggests indivi dual and possibly public surface water and ground water supplies could be adversely impact ed by surface coal mining activities. In addition, recent published studies directly re late intensity of surface mining activities within Appalachia to degraded public health and mortality. EPA has been presented with a petition from a variety of local stakeholders that outlines many of these concerns and further relates them to issues of environmental justice.

Ultimately, EPA’s process will result in one of three outcomes: (1) EPA could withdraw specification of the site as a disposal site a nd decide to use its di scretion to prohibit any discharges from the project, including the c onstruction of valley fills; (2) EPA could restrict specification of the site as a dispos al site and decide the project cannot go forward under the permit as currently is sued, but could go forward under a modified permit with more environmentally protective conditions; or (3) EPA could decide the permit as currently issued is sufficiently protective.

EPA seeks comment on this proposed Section 404(c) determination to withdraw, prohibit or restrict use of Seng Camp Creek, Pi geonroost Branch, Oldhouse Branch, and their tributaries in Logan County, West Virginia, to receive dredged or fill material in connection with construction of the Spruce N o. 1 Surface Mine as currently authorized by the January 22, 2007 Department of the Army (DA) Permit No. 199800436-3 (Section 10: Coal River). See Solicitation of Comments , at the end of the public notice, for further

details.

Dates : Comments must be received in writing by [insert by the Fede ral Register: date 60 days from FR publication].

Addresses : Submit your comments, identified by Docket ID No EPA-R03-OW-2009- 0985, by one of the following methods:

21. Federal eRulemaking Portal (recommended method of co mment submission): http:// www.regulations.gov. Follow the online instructions for submitting comments.

2. E-mail: ow-docket@epamail.epa.gov . Include the docket number, EPA-R03-OW2009-0985, in the subject line of the message.

3. Mail : ‘‘EPA-R03-OW-2009-0985, Spruce No. 1 Surface Mine,’’ U.S. Environmental Protection Agency EPA Docket Center Water Docket, Mail Code 28221T 1200 Pennsylvania Avenue, NW Washington, DC 20460

4. Hand Delivery or Courier : Director, Office of Environmental Programs;

Environmental Assessment and Innovation Division; U.S. Envi ronmental Protection Agency, 3EA30 Region III; 1650 Arch Street , SW; Philadelphia, Pennsylvania 19103. Such deliveries are accepte d only during the Regional Office’s normal hours of operation, which are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

5. Submit at Public Hearing : see PUBLIC HEARING section below. Instructions: Direct your comments to Dock et ID No. EPA-R03-OW-2009-0985.

EPA’s policy is that all comments received wi ll be included in the public docket without change and may be made available onlin e at http://www.regulations.gov, including any personal information provided, unless the comme nt includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI or otherwise protected. The http://www.regulations.gov website is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail co mment directly to EP A without going through http://www.regulations.gov, your e-mail addres s will be automatically captured and included as part of the comment placed in the public docket and made available on the Internet. If you submit an el ectronic comment, EPA recomm ends you include your name and other contact information in the body of your comment and with any disk or CD– ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Electronic files should avoid the use of special char acters, any form of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket : All documents in the electro nic docket are listed in the http://www.regulations.gov index. Although listed in the inde x, some information is not publicly available, i.e., CBI or other informati on whose disclosure is restricted by statute. Certain other material, such as copyrighted ma terial, is not placed on the Internet and will

3be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.re gulations.gov or in hard copy at the Office of Environmental Programs; Environmenta l Assessment and Innovation Division; U.S. Environmental Protection Agency, Region III; 1650 Arch Street; Philadelphia, Pennsylvania 19103. EPA requests that if at a ll possible, you contact the office listed in

the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The EPA Region III Office’s official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

Public Hearing : In accordance with EPA regul ations at 40 CFR 231.4, the Regional Administrator may decide that a public hearing on a proposed Section 404(c)

determination would be in the public interest. A separate public notice will be published in advance of any hearing in the Federal Re gister and local newspapers to announce the date, time and location of the hearing and describe hearing procedures. Written comments may be presented at the hearing.

FOR FURTHER INFORMATION CONTACT : For information regarding this notice of proposed Section 404(c) determination, cont act the Office of Environmental Programs;

Environmental Assessment and Innovation Division; U.S. Envi ronmental Protection Agency, Region III; 1650 Arch Street; Phil adelphia, Pennsylvania 19103. The telephone

number is 215-814-2760. The Office can al so be reached via electronic mail at R3_Spruce_Surface_Mine@epa.gov . This is for information on the notice only and is not the official comment submission forum. Please see the previous section for directions on submitting comments on the Proposed Determination.

SUPPLEMENTARY INFORMATION:

Throughout this document, references to “EPA,” “we,” “us” or “our” are references to the Environmental Protection Agency. References to the “Corps” refer to the U.S. Army Corps of Engineers. References to “WVDEP” refer to the West Virginia Department of

Environmental Protection. References to Seng Camp Creek, Pigeonroost Branch and

Oldhouse Branch also refer to tributaries to those waters that woul d be impacted by the project as authorized. The supplementary information is ar ranged as follows:

I. SECTION 404(C) PROCEDURE

II. PROJECT DESC RIPTION AND BACKGROUND A. Project History B. Project Description

III. CHARACTERISTICS AND FU NCTIONS OF THE IMPACTED

RESOURCES

A. Watershed and Stream Conditions

1. The Coal River Sub-basin 2. The Spruce Fork Sub-watershed

4B. Wildlife

1. Invertebrates

2. Vertebrates

a. Salamanders

b. Fish

c. Birds

d. Bats

IV. BASIS FOR PROPOSED DETERMINATION A. Section 404(c) Standards B. Adverse Impacts of the Proposed Project 1. Impacts to Wildlife

a. Freshwater Macroinvertebrates

b. Salamanders

c. Fish

d. Birds

e. Bats 2. Impacts to Water Quality

a. Selenium b. Total Dissolved Solids/Conductivity

3. Potential to Contribute to Condi tions that Support Growth of Toxic Golden Algae 4. Proposed Mitigation May Not Offset Anticipated Impacts to an Acceptable Level 5. Consistency with the 404(b)(1) Guidelines

a. Alternatives b. Water Quality

V. PROPOSED DETERMINATION

VI. OTHER CONSIDERATIONS

A. Environmental Justice

B. Cumulative Effects

VII. SOLICITATION OF COMMENTS

5I. SECTION 404(C) PROCEDURE

The Clean Water Act (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 Ar my, acting through the Chief of Engineers (Corps), to authorize th e discharge of dredged or fill material at specified disposal sites. This authorizati on is conducted, in part , through application of environmental guidelines set forth in regula tions developed by EPA in conjunction with the Corps under Section 404( b) of the CWA, 33 U.S.C. 1344(b) (Section 404(b)(1) Guidelines).

Section 404(c) of the CWA authorizes EPA to prohibit specification (including the withdrawal of specification) of any defined area as a disposal site, and EPA is authorized to restrict or deny use of any defined ar ea for specification (including withdrawal of specification) as a disposal site, whenever it determines, after notice and opportunity for public hearing, that the discharg e of such materials into a ny defined 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.

Procedures for implementing Section 404(c) are set forth in 40 CFR Part 231. Under those procedures, if the Regiona l Administrator has reason to be lieve that use of a site for discharge of dredged or fill material may ha ve an unacceptable adverse effect on one or more of the aforementioned resources, he may initiate the Section 404(c) process by notifying the Corps and applic ant/permittee (and/or projec t proponent and landowner(s)) that he intends to issue a proposed determina tion. Each of those pa rties then has 15 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 satis fied that no unacceptable adverse effect will occur, the Regional Administrator will publish a notice in the Federal Register of his proposed determination, soliciti ng public comment, and offering opportunity for a public hearing. Today’s notice represents this step in the process.

Following the public hearing and close of the comment period, the Regional

Administrator will decide whether to withdr aw his proposed determination or prepare a

recommended determination. A decision to w ithdraw a proposed de termination 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 complete administrative record compile d in the Regional Office to the Assistant

Administrator for Water. The Assistant Ad ministrator makes the final determination affirming, modifying, or rescindi ng the recommended determination.

EPA Region III recognizes this action represen ts one of the few times EPA has initiated a Section 404(c) action to withdr aw specification after a permit has been issued by the Department of the Army. It is EPA’s prefer ence to initiate pro cedures pursuant to

6Section 404(c) prior to permit issuance. Neve rtheless, Section 404(c) authorizes EPA to withdraw use of a defined area for specifica tion, and therefore, EPA has the ability to initiate a Section 404(c) action after permit i ssuance. As set forth in the Preamble to EPA’s implementing regulations, EPA recognize s the seriousness of initiating a Section 404(c) action after the Corps has issued a permit and does so only when unacceptable impacts from the project are of commensura te seriousness. In addition, EPA recognizes that a portion of the project located in th e Seng Camp Creek subwatershed already has been constructed pursuant to the permit issued by the Depart ment of the Army. This

action is not intended to withdraw or restrict specification to the extent that dredged or fill material already has been discharged as of the date of this notice pursuant to a Department of the Army (DA) Permit No. 199800436-3 (Section 10: Coal River).

II. PROJECT DESCRIPTION AND BACKGROUND

A. Project History

The Spruce No. 1 mining project is a proposed mountaintop mining operation with valley fills (MTM/VF). In this type of mining operation, forests on the mined site are cleared and stripped of topsoil, and explosives are us ed to break up tops of mountains to expose the coal seams. Excess overburden is pushed into adjacent valleys, where it buries streams. The Spruce No. 1 Mine as cu rrently authorized by DA Permit No. 199800436-3 (Section 10: Coal River), is one of th e largest mountaintop mining projects ever authorized in West Virginia and includes si x valley fills. The proposed Spruce No. 1 Mine was originally advertised as a Hobet Mining Inc. project, a subsidiary of Arch Coal, Inc. Effective December 31, 2005, Arch Coal, Inc. transferred Spruce No. 1 Mine holdings and responsibilitie s to its Mingo Logan Coal Company (Mingo Logan) subsidiary. The project as originally proposed in 1998, woul d have directly impacted a total footprint area of 3,113 acr es and 57,755 linear feet (more than ten miles) of stream (not including indirect impacts to remaining downstream waters). At that time, the Corps approved the project under a nationwide permit, which was subsequently enjoined by a federal district court. As a consequence of that action, the Corps re tracted the previously proffered nationwide permit for the project, and the permittee, Mingo Logan, advised the Corps it would submit an individual permit a pplication. Because the decision whether to issue the permit was a major federal action wi th potential to significantly affect the quality of the human environment, an E nvironmental Impact Statement (EIS) was prepared for the Spruce No. 1 project by the Army Corps of Engineers Huntington District pursuant to the Na tional Environmental Policy Act, 42 U.S.C. §§ 4332(C). The original project application al so launched events that led to the Interagency Mountaintop Mining/Valley Fills in Appalachia Program matic EIS which was finalized in October 2005 (PEIS). The PEIS is available at www.epa.gov/Region3/mtntop/eis2005.htm

.

In accordance with Section 309 of the Clean Air Act (CAA), EPA reviews all EISs and provides comments to the lead ag ency, in this case, the Corps’ Huntington District, that identify and recommend corrective actions for significant environmental impacts associated with the proposal. EPA also reviews the adequacy of information and

7analyses contained in the EIS, as needed to support this object ive. The initial 2002 Spruce No. 1 Draft EIS evaluated a project si milar in scope and size to the original project. EPA’s review of th e Draft EIS found gaps in the analyses of the proposed mine and related adverse environmental impacts. EPA was particularly concerned by the lack of information regarding the nature and extent of impacts to the high quality streams that would be buried under valley fills, and recomm ended additional evaluation to support the analysis of less environmentally damaging alte rnatives. EPA Region III, in a letter dated August 12, 2002, indicated the EIS contained in adequate information for public review

and decision-makers.

Partly as a result of EPA’s concerns, a revi sed 2006 Spruce No. 1 Draft EIS was prepared and the project was reconfigured to redu ce impacts. The permittee, Mingo Logan, revised the plan to avoid impacts to White Oak Branch, a very good quality stream and the project area was reduced from 3,113 to 2,278 acres with direct stream impacts reduced to 7.48 miles. According to the 2006 EIS, the proposed project would include mining an average of 2.73 million tons of bituminous coal annually via mountaintop mining methods. The Spruce No. 1 Mine would result in a total surface disturbance of 2,278 acres of land and discharge of approxi mately 110 million cubic yards of dredged and fill material into waters of the United States over a period of 15 years.

In its June 16, 2006, letter of comment on the 2006 Draft EIS, EPA recognized that impacts from the proposed 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 proposed Sp ruce 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 re garding the proposed mitigation, need for additional analysis of potential environmental justic e issues, and lack of study related to the cumulative impact of multiple mining operations within the Little Coal River watershed.

EPA continued to stress its belief that corr ective measures should be required to reduce environmental impacts and that other identifi ed 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 (FWS), Ecological Services We st 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 le tter, the FWS expressed concerns over the permittee’s compensatory mitigation plan. The FWS claimed there was inadequate compensatory mitigation proposed for the project because the assessment methodology used by the permittee to eval uate stream impacts considered only the physical characteristics of the impacted streams, without considering the equally important biological or chemical characteristics. The FWS expressed concern the project would impact healthy, biologically functional st reams and the proposed mitigation included erosion control structures designed to convey water that would not replace the streams’ lost ecological services.

8The Corps issued the Spruce No. 1 Final EIS on September 22, 2006. On October 23, 2006, EPA commented on the Final EIS, noting continuing concerns with the proposed project’s contribution to cumulative impacts w ithin the Little Coal River watershed, and highlighting concerns over adequacy of mitigation proposals and limited analyses of potential impacts to low-income and minority communities. In a letter dated November 30, 2006, EPA offered its assistance to the Corps in developing a stream functional assessment protocol and willingness to wo rk with Mingo Logan through EPA’s Conflict

Prevention and Resolution Center to deve lop a cumulative impact assessment and watershed restoration plan for th e Little Coal River watershed.

Despite concerns raised by EPA and the FW S, on January 22, 2007, the Corps issued a Clean Water Act § 404 Permit (DA Permit N o. 199800436-3 (Section 10: Coal River)) to Mingo Logan for its Spruce No. 1 Mine. On January 30, 2007, a number of environmental groups filed a complaint agai nst the Corps in federal district court challenging its decision to issue the perm it. That litigation remains pending.

In addition to its DA Permit No. 199800436-3 (Section 10: Coal River), the project received authorizations from the West Virg inia Department of Environmental Protection (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 Na tional Pollutant Discharge Elimination System (NPDES) permit for disc harges of pollutants from 25 1 outfalls pursuant to

Section 402 of the Clean Wa ter Act, 33 U.S.C. § 1342.

In early 2007, Mingo Logan commenced limite d operations on Spruce No. 1 pursuant to DA Permit No. 199800436-3 (Section 10: Coal Rive r) subject to an agreement with the environmental groups who are plaintiffs in th e 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. Under the agreement, Mingo Logan must give plaintiffs 20 days’ noti ce before expanding operations beyond the area subject to the agreement, and has done so once without objection from the plaintiffs.

B. Project Description

The project as authorized is located in the East District of Loga n 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 Amberstdale Quadrangles. The mine site is located approximately two miles northeast of Blair, in Logan County, West Virginia. The project as authorized would result in discharge of dredged or fill material into Right Fork of Seng Camp Creek, Pigeonroost Branch, Oldhouse Br anch, and several of their unnamed tributaries (hereafter, references to Se ng Camp Creek, Pigeonroost Branch, and Oldhouse

Branch also include all tributaries to those waters that would be impacted by the project as authorized). Streams on-site exhibit surf ace water connections to Spruce Fork of the

1 In the most recent NPDES permit (W V1017021) issued August 8, 2007, the outfalls number up to 28, but there are no outfalls numbered 11, 13, or 16.

9Little Coal River, which ultimately flows in to the Coal River, a navigable (Section 10)

water of the United States.

The Spruce No. 1 project would result in a total surface disturbance of 2,278 acres of land with approximately 500 acres actively mine d at any one time, based on sequential backfilling and concurrent reclamation of mined areas. The mining process would

remove 400 to 450 vertical feet or 501 milli on cubic yards of overburden material. Nearly 391 million cubic yards would be placed within the mined area and the remaining 110 million cubic yards placed in 6 proposed va lley fills. The proposed Spruce No. 1 Mine would result in the discharge of a pproximately 110 million cubic yards of dredged and fill material into waters of the United States over a period of 15 years. A detailed discussion of Spruce No. 1 project can be found in the 2006 Spruce No. 1 Draft EIS on pages 2-35 through 2-61.

According to its Draft EIS, the Spruce N o. 1 project is a mountaintop mining project targeting bituminous coal seams overlying a nd including the Middle Coalburg coal seam in the western portion of the proposed 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 mini ng in conjunction with auger and/or highwall/thin-seam mining utilized to rec over the Middle Coalbur g seam. The project would disturb a total of 2,278 acr es and recover seventy-five percent (75%) of the coal reserve targeted for extraction within the pr oject area during fifteen (15) phases. The applicant describes its proposal as placing dr edged and fill material into approximately 0.12 acre of emergent wetland, 10,630 linear fe et (1.83 acres) of ephemeral stream channels (all permanent), and 28,698 linear f eet (6.12 acres) of intermittent stream channels (26,184 linear feet [5.77 acres] permanent and 2,514 linear feet [0.35 acre] temporary), and 165 linear feet (0.034 acre) of perennial stream channel (all temporary), in conjunction with the construction, operati on and reclamation of the Spruce No.1 Mine [Surface Mining Control and Reclamation Act (SMCRA) Permit S-5013-97, Incidental Boundary Revision (IBR) 2]. As set forth more fully below, EPA does not agree that the Spruce No. 1 EIS accurately describes and quantifies stream resources that will be impacted. The foregoing summary of impacts fr om the Spruce No. 1 EIS is set forth here for descriptive purposes.

Including operations bei ng conducted in the Seng Camp Creek area (includingconstruction of Fill 1A), the mining plan is described in the Spruce No. 1 EIS as a fifteenphase mining and reclamation plan, which ge nerally includes “Construction” (Phases 1 and 2), “Operations” (Phases 3-13), and “Closu re and Reclamation” (Phases 14-15). As initially proposed, the phases are describe d in the Spruce No. 1 EIS. DA Permit No. 199800436-3 (Section 10: Coal River) which author izes construction of six valley fills: Valley Fills 1A and 1B in Seng Camp Creek; Valley Fills 2A, 2B, and 3 in Pigeonroost Branch; and Valley Fill 4 in Oldhouse Bran ch, and numerous sedimentation ponds, minethroughs and other fills.

Additional components of the project include requirements for compensatory mitigation to offset adverse project impacts. The November 2006 Compensatory Mitigation Plan

10(CMP) submitted by Mingo Logan describes on-site, in-kind mitigation at a minimum 1:1 ratio on a linear footage basis to compensa te for permanent and temporary impacts to waters of the United States through stream channel reclamation and off-site mitigation. This mitigation is intended to restore, reconstruct, or enhance segments of Spruce Fork and Rockhouse Creek. On-site compensation would include restoration of 7,132 linear feet of stream segments temporarily imp acted by sedimentation ponds, and creation of 43,565 linear feet of stream ch annel within the project ar ea. Off-site compensation includes stream enhancements (11,272 linear feet) to Spruce Fork and Rockhouse Creek through a combination of physical, aquatic habitat, and stream stabilization improvements. The CMP proposes to direct su rface water flow from the project area in existing drainage ways to promote the deve lopment of more defined channels, thus creating 26,625 linear feet of streams (existing, non-jurisd ictional drainageways).

III. Characteristics and Functions of the Impacted Resources

The project will be located in Logan County, West Virginia. Logan County is located in

the Cumberland Plateau and the Mountain s Major Land Resource Area, which is dominated by very steep, rugged side sl opes, which are broken by strongly sloping to steep ridgetops and very narrow bottoms along streams. The project site is predominantly forested. The nearest town is Blair, located 2 miles away. The project

would be located in the Coal River sub-basin. The project as authorized would directly impact (by discharge of fill material) the Right Fork of Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch and several of their unnamed tributaries. These on-site streams

are tributaries of and exhibit surface water c onnections to Spruce Fork of the Little Coal River, which ultimately flows into the Coal River.

The following subsections describe the characte ristics and functions of the resources that could be impacted if the Spruce No. 1 Mine is constructed as cu rrently authorized.

Section IV then will describe the impacts that could be caused if the Spruce No. 1 Mine is constructed as currently authorized.

While the following subsections discuss waters hed and stream conditions and wildlife in separate sections, it is important to rememb er that the two are closely interrelated. Wildlife living in or depending upon streams will be adversely impacted by adverse changes in water quality.

EPA derives its understanding of the potential ly impacted resources and the predicted impacts of the project from several sources. The Draft (June 2003) and Final (October 2005) Interagency Mountaint op Mining/Valley Fills in Appalachia Programmatic EIS (PEIS) represent an important inter-ag ency 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 N o. 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 c onducted in 1997, data collected to support the

112006 Coal River sub-basin total maximum daily load (TMDL), 2 and WVDEP and nationally available GIS data. EPA also reviewed the 2006 Spruce No.1 EIS, and other sources of data including st udies conducted by EPA scientis ts and discharge monitoring reports generated by Mingo Logan. In additi on, EPA consulted a wide range of peerreviewed studies and literature. A Techni cal Support Document containing more specific data, maps of the watershed, and an index of references is included in the docket as supporting material.

A. Watershed and Stream Conditions

1. The Coal River Sub-basin

The Spruce No. 1 Mine proj ect area is located in th e unglaciated portion of the Appalachian Plateau physiographic province of West Virginia. The Appalachian Plateau province is where the majority of the min eable coal in WV is located. The specific project area is located within the upper headwa ters of the Spruce Fork of the Little Coal River Watershed, which is a trib utary of the Coal River.

The Coal River sub-basin is a component of the larger Kanawha River Basin and encompasses nearly 891 square miles within West Virginia. Major tributaries include Marsh Fork, Clear Fork, Pond Fork, Spruce Fork, Little Coal River, and the Coal River. The Coal River sub-basin has approximately 283 miles of designated “high quality” streams, which are designated as such because they have five or more miles of desirable warm water fish populations or have native or stocked trout p opulations that are utilized by the public. The Coal River Sub-basin ha s approximately 51 species listed as endangered, threatened or state rare species. Many of these species rely on the aquatic ecosystems for all or part of their life cycle.

The Coal River sub-basin has been impacted by present and past surface mining. Based upon the National Land Cover Database (N LCD) change product for 1992-2001 and WVDEP’s GIS mining files, more than 257 pa st and present surface mining permits have been issued in the Coal River sub-basin, wh ich collectively occupy mo re 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. Tre nd analysis indicates mountaintop mining and valley fills as a percentage of the land cover will continue to increase in the Coal River

sub-basin.

In 1997, the West Virginia Department of Environmental Protection (WVDEP) performed its first comprehensive ecological assessment of the Coal River sub-basin. WVDEP assessed three major aspects of waters hed health when it performs an ecological assessment: water quality, hab itat condition, and benthic m acroinvertebrate 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 watershe d. As a result of that assessment WVDEP

2 A TMDL is a calculation of maximum amount of a po llutant that a waterbody can receive and still meet water quality standards

12identified as a priority the need to “[l]o cate and protect the few remaining high quality

streams in the Coal River watershed....” The assessment indicates that because the watershed is becoming increasingly impaired due to stressors such as mining there is a great need to protect the remaining quality resources.

The 1997 WVDEP assessment reported that the Little Coal River watershed (including the Little Coal River, Spruce Fork, and P ond Fork) had a higher rate of impairment (defined as failure to achieve compliance with water quality st andards, including the aquatic life use and narrative crit eria) than areas elsewhere in the Coal River sub-basin.

WVDEP collected additional biological and chemical data throughout the Coal River

sub-basin in 2002-2003 in order to investigate causes and sources of impairments and to develop Total Maximum Daily Loads (TMDLs). These assessments indicated numerous impairments caused by mining related and ot her pollutants throughout the Coal River watershed and the Spruce Fork sub watershed.

2. The Spruce Fork Sub-watershed

The Spruce No. 1 Mine is located in the Spru ce Fork sub-watershed. As authorized, the Spruce No. 1 Mine would impact substantially all of the Right Fork of Seng Camp Branch, Pigeonroost Branch and Oldhouse Branc h, all of which are tributaries of and flow to Spruce Fork. Spruce Fork is a four th order tributary that combines with Pond Fork to form the Little Coal River. Spruce Fork is located in the southwestern portion of

the Coal River watershed a nd drains approximately 126.4 square miles. The dominant landuse in the Spruce Fork watershed is fo rest. Other important landuse types include urban/residential and barren/mining land. The Spruce Fork watershed lies entirely within the Central Appalachian Ecoregion. This ecore gion is more rugged and forested and is cooler than the Western Alleghe ny Plateau Ecoregion to the north. Extraction of coal, oil, and natural gas is common and has degraded st ream habitat in much of this ecoregion. However, some small streams disturbed by past logging or ongoi ng oil/gas extraction, such as those located in and around the Sp ruce No. 1 impact area (including Oldhouse Branch), still function at a high level and are currently of reference quality based on

WVDEP reference criteria.

The Spruce Fork sub-watershed has been im pacted by past and present surface mining activity. According to WVDEP Division of Mining and Reclamation (DMR) permit maps, within the Headwaters Spruce Fork s ubwatershed there are more than 34 past and present surface mine permits issued which co llectively occupy more than 33 % of the land area. Trend analysis indicates mountai ntop mining and valley fills as a percentage

of the land cover will continue to increase in the Headwaters Spruce Fork sub-watershed

and forest area will continue to decrease as a result. From 1992 to 2009 forest coverage has decreased from approximately 73% to 61% and can be expected to decrease to 53 % of the sub-watershed in the reasonably foreseeable future.

The EPA sampled several streams within the Spruce Fork sub-watershed for the previously referenced interagency PEIS. The re sults of the PEIS studies indicate that the

13streams within and near the project area ar e currently good quality streams based on the

benthic macroinvertebrate a nd water quality data.

Focusing on the Spruce No. 1 project area, th e streams that will be filled, particularly Oldhouse Branch and Pigeonroost Branch, are generally healthy, functioning streams with good water quality. A useful comparison is to the nearby White Oak Branch. White Oak Branch, which flows into Spruce Fork upstream of the Spruce No. 1 Mine site, was identified from the WVDEP 1997 surveys as a high quality stream. White Oak Branch was part of the original Spruce No. 1 impact area but was subsequently avoided when the project was reconfigured because of it hi gh quality designation. WV DEP has, in fact, adopted White Oak Branch as a reference site an d has stated that “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.”

Oldhouse Branch, which would be filled if the Spruce No. 1 Mine is constructed as currently authorized, lies adjacent to White Oak Branch and exhibits similar healthy biological diversity and water quality (U.S. EPA data). Usin g the West Virginia Stream Condition Index (WVSCI), an as sessment method developed fo r use in West Virginia to help evaluate the health of benthic macroinv ertebrate communities at the family level in wadeable streams, both Oldhouse Branch a nd White Oak Branch scored comparably well, meaning that both were of simi lar quality and suppor ting similar aquatic communities. The two streams also score comparably well when the benthic macroinvertebrate community is considered at the 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) indicati ng a diverse and healthy aquatic community in Oldhouse Branch similar to the high qua lity communities of White Oak Branch.

Pigeonroost Branch, which also would be fill ed if the Spruce No. 1 Mine is constructed as currently authorized, also shares many macroinvertebrate genera (many of them pollution intolerant) in common with the hi gh quality community in White Oak Branch, again indicating the comparable health of the aquatic community in Pigeonroost Branch. The WVSCI assessment of Pigeonroost indicates water quality is relatively good despite some minor historic mining in the watershed.

The DA Permit also authorizes placement of fill into Right Fork Seng Camp Creek.

While the WVSCI assessment of the lower Seng Camp Creek does not indicate a high quality designation, benthic data available to EPA show that many sensitive aquatic insects occur in the forested headwater reaches of the tributaries of Seng Camp Creek (Valley Fill 1B).

In summary, the streams that would be filled if the Spruce No. 1 Mine were constructed as authorized by the DA permit are high f unctioning streams supporting healthy aquatic communities. By way of comparison, Ol dhouse Branch and Pigeonroost Branch are healthier than other streams in the Spruce Fork sub-watershed that have been impacted by mining operations similar to the Spruce N o. 1 Mine. The 2006 and 2008 WVDEP 303(d)

14lists of impaired waters 3 and the 2006 TMDL report for th e Coal River sub-basin indicate that several streams in the Spruce Fork wate rshed are impaired and already have TMDLs developed for mining related pollutants which include selenium, iron and aluminum. Four of these impaired streams are directly northwest of the Spruce No. 1 project, on the west side of Spruce Fork, and in part, ar e impacted by the Mingo Logan Dal-Tex Mining Operation. Spruce Fork itself, which will r eceive discharges flowing from the Spruce No. 1 project, is already listed as impair ed by mining related pollutants. Seng Camp Creek, a tributary to Spruce Fork, which will be directly impacted by and will drain the Spruce No. 1 project, also has documented water quality impairments.

The results of PEIS studies and other data described above indicate that the streams within and near the project area represen t streams that WVDEP has stated need protecting within the Coal River watershed.

B. Wildlife

The Central Appalachians ecoregion where the Spruce No. 1 project will be located has some of the greatest aquatic animal diversity of any area in North America, especially for species of amphibians, fishes, mollusks, aquati c insects, and crayfishes. Salamanders in particular reach their highest North Ameri can diversity in the Central Appalachian ecoregion

. The area includes one of the most promin ent biodiversity hot spots identified by the Nature Conservancy. It has been docum ented that other specialized wildlife such as some neotropical migrant birds and forest amphibians rely on the natural headwater stream condition and adjacent forest type s exhibited by Pigeonroost Branch and Oldhouse Branch for maintenance of their populations.

1. Invertebrates

In a body of water, benthic macroinverteb rates 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). Freshwater macroinvertebrates, such as mayflies and stoneflies, serve as indicators of ecosystem healt h, and 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 (fat s 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. Because of their productivity and secondary position in the aquatic food chain, macroinvertebra tes play a critical ro le in the delivery of energy and nutrients along a 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 resource.

Stream order typically dictat es the community structure of the resident aquatic life. Headwater streams harbor primarily benthic macroinvertebrate communities. In the southern Appalachian Mountains, macroinve rtebrates of severa l orders including

3 According to WV water quality standards a stream is designated as impaired by WVDEP if it does not fully support one or more of its designated uses.

15Ephemeroptera, Plecoptera and Trichoptera (m ayflies, stoneflies and caddiflies, all pollution sensitive groups), have been found to be rich in species, including many endemic species and species considered to be rare. This diversity and unique assemblage has been attributed to the unique geological, climatological and hydrol ogical features of this region.

Macroinvertebrates are good indicators of watershed h ealth and are used by West Virginia, states in the Mid-Atlantic and na tionally to determine compliance with water quality standards. They are good indicators beca use they live in the water for all or most

of their life. Macroinvertebrat es can be found in all streams, are relatively stationary and cannot escape pollution. They also differ in their toleranc e to the amount and types of pollution. Macroinvertebrate communities integr ate 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 a nd will die when exposed to certain levels of pollution. Thus, the composition of communities informs scie ntists about the quality of the water.

Different taxa are more sensitive to pollution and other stressors than other taxa. In a healthy stream, one would exp ect to find a high diversity of taxa and a large number of different taxa including species that are more sensitive to (i.e., less tolerant of) stressors. Using the mayfly as an example, some genera of mayfly are more sensitive than others. The presence of a large number of individua ls from the more sensitive mayfly genera indicates good water quality conditions.

Mayflies (Insecta: Ephemeroptera) in particul ar have long been recognized as important indicators of stream ecosystem health. Mayf lies are a very important part of the native organisms in these streams. In Appalachia n headwater streams, they routinely make up between 30%-50% of the insect assemblages in certain seasons. Numerous studies demonstrate that mayfly community stru cture reflects the chemical and physical

environment of watercourses.

Not only do trout rely on mayf lies 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 Ke ntucky showed that gut contents of several darters contained mostly mayflies. Darters ar e 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.

Sampling data included in the PEIS, the Spruce No. 1 EIS and from the WVDEP monitoring database indicate that macroinve rtebrates are diverse in the Spruce No. 1 project area. This dive rsity suggests that the streams in the project area are healthy. 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-f ive (85) macroinvertebrate genera in riffle complexes of Pigeonroost Branch and Oldhouse Branch. Data from EPA and the permittee’s consultants (Sturm Env. Services , BMI, Inc.) from the Spruce No. 1 EIS

16show that collectively, Pigeonroost, Seng Camp, and Oldhouse Branch contain a high number of sensitive mayfly genera and indi viduals. A total of 21 genera have been

identified from these three headwater stream s, indicating that these systems offer high water quality and habitat. Many of these mayfly genera are not shared with the receiving Spruce Fork, making these headwater streams un ique to the permit area (those few genera shared with Spruce Fork are moderately pollution-tolerant genera such as Baetisca

, Baetis , and Isonychia ). This count represents only an estimate of mayfly richness in these streams; several other genera have been found by WVDEP in other Spruce Fork tributaries and are potentially present in the project area. As many as nine genera of mayflies have been collected in Oldhouse Branch in any one season-specific sample, with an average of seven genera across multiple samples. These data, cited above, are significant and indicate that less than 5% of all other streams in this ecoregion have more mayflies than Oldhouse Branch. Previous government and academic research on the effects of Appalachian coal mining on mayfly communities indicate th at the Spruce No. 1 Mine may eradicate most of the species curr ently occupying the proj ect area and in the immediate downstream receiving waters.

Stoneflies (Plecoptera) also represent an important group of aquatic insects in the structure and functioning of stream ecosystem s. Stoneflies fill important trophic roles in stream ecosystems, as displayed by their detritivory (decomposers) and predatory nature. Stoneflies are primarily stenothermic, meaning they require cool to cold water and high oxygen concentration to survive. Data compiled from EPA, WVDEP, and the permittee’s consulting firms show that Oldhouse, Pigeonroost, and Seng Camp collectively yielded 16 genera of stoneflies. Oldhouse and Pigeonroost both had 11 genera. Only 2% of stream samples in al l of Central Appalachia had more stonefly genera than Oldhouse within a single sampling event.

Based on this information, the headwater st reams draining the proposed Spruce No. 1 project area appear to contai n high richness and abundance of sensitive macroinvertebrate wildlife and indicate a healthy aquatic ecosystem that is vi tal to downstream waters and the fish and wildlife that depend on them. Moreover, because of the high degree of taxonomic similarity between these streams and White Oak Creek (a DEP-designated high quality water), and the strong evidence th at many of the sensitive taxa have been eliminated from the adjacent Dal-Tex mine discharges, EPA believes that as proposed, the Spruce No. 1 Mine could cause or contri bute to unacceptable degradation of this sensitive aquatic life and the eco system that depends on them.

2. Vertebrates

Two important groups of vertebrates, fish and salamanders, are the major streamdwelling vertebrates in the project area.

a. Salamanders

Salamanders are a diverse and unique form of Appalachian wildlife and are an important ecological component in the mesic forests of the ecoregion. Ecologically, salamanders

17are intimately associated with forest ecosyste ms acting as predators of small invertebrates and serving as prey to larger predators. They are often the most abundant group of

vertebrates in both biomass and number. Some species of salamanders are aquatic; others are semi-aquatic, splitting th eir lives between forests and headwaters and depending upon

intact forest-headwater connections for move ment. Typically, salamanders occupy small, high-gradient headwater streams wh ile fish occur farther downstream.

The PEIS identified thirty-one (31) species of salamanders in the West Virginia portion of the study area. Of these, 21 species are known to occupy cove hardwood forests while 25 species are known to inhabit mixed mesophyt ic hardwood forests like those present within portions of the Spruce No. 1 proj ect area. Petranka (1993) presented a conservative estimate that there are about 4,050 salamanders per acre of mature forest floor in Eastern forests. Twice as many la rval salamanders are estimated to occur (~8,000/acre) in these same areas.

The southern Appalachians, where the Spruce No. 1 project is located, have one of the richest salamander fauna in the world. Nearly ten percent of global salamander diversity is found within streams of the southern Appa lachians. Most of the species found in the project area belong to the fa mily Plethodontidae, the lungless salamanders, which require high moisture retaining leaf-li tter, dense shade, and cool fl owing streams to survive and reproduce.

With respect to the Spruce No. 1 project area, salamanders have been surveyed in White Oak Branch. White Oak Branch had good nu mbers of Northern Dusky (9 adult, 7 larvae), Appalachian Seal (15 adult, 12 larv ae), and Two Lined salamanders (1 adult and 15 larvae). Although not specifically sampled, the salamander populations in Pigeonroost and Oldhouse Branch are likely very similar to those in White Oak Branch. Applying these numbers from White Oak Br anch, EPA would expect abundant and diverse salamander populations (~5 per s quare meter) in the project area.

b. Fish

WVDNR fish assemblage data in the mainstem of Spruce Fork indicate that the fishery is in relatively good condition, and that it is an important ecological and recreational resource that should be protected. Spruce Fork is a locally important rock bass and smallmouth bass fishery. Rock Bass and Smallmouth Bass are moderately sensitive gamefish species. Although impacted by mini ng, fish assemblage data collected in 2007 in the mainstem of Spruce Fork indicate that the assemblage is still in relatively good

condition.

c. Birds

Many terrestrial species depend on the headwate r 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 exam ple, unique avifauna assemblages can be found along the riparian zone of headwate r streams. The Acadian flycatcher ( Empidonax

18virescens ) is commonly encountered throughout the region, 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 [appears to] meet[s] these habi tat requirements. Neotropical migrant songbirds are also often attracted to headwate r streams for breeding areas because of the diversity of the habitat and the availab ility of emergent aquatic insects.

The Louisiana waterthrush ( Seirus motacilla ), another neotropical migrant song bird, is considered an obligate headwater riparian songbird (an example of water-dependent wildlife) because its diet is comprised pr edominantly of immature and adult aquatic macroinvertebrates found in and alongside th ese streams and it builds its nest in the stream banks. Breeding waterthrushes ne st 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 wa ter quality is a key component of the species breeding habitat. Headwater streams like those of Spruce Fork that support healthy macroinvertebrate communities would be important food sources for species such

as the Louisiana waterthrush.

The Appalachian Mountain Bird Conserva tion Region (AMBCR), which extends from

southeastern New York south to northern Al abama, is thought to support a substantial portion of the Louisiana wate rthrush’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 abunda nce over the species’ entire breeding range, based on North American Br eeding Bird Survey (BBS) data from 1994- 2003. The West Virginia population may serve as a source for populations elsewhere in the breeding range. The Louisiana waterthrus h is also an area-sensitive species, requiring

undisturbed forest tracts of 865 acres to sustain a population. The most effective management protocol for the Louisiana wate rthrush would appear to be protection of forest tracts and water systems inhabi ted on both breeding an d wintering areas particularly moderate- to hi gh-gradient headwater stream s, which compose 75-80% of stream length in a typical watershed

Bird species that rely on mature forest ha bitats that are on th e Audubon watch list as declining species and are lis ted as probable in the area include the Swainson warbler ( Limnothlypis swainsonii ), Kentucky warbler ( Oporornis formosus ), and Cerulean warbler ( Dendroica cerulean ). The woodthrush was a confir med breeder in this area and is declining at 1.7% per year , according to the Audubon Watch List. A primary cause of the decline is forest fragmentation, which lead s to increased nest parasitism by the brown headed cowbird ( Molothrus ater ).

The Cerulean warbler in particular is consider ed an area-sensitive sp ecies; it is thought to require large (> 30 sq miles) tracts of mature interior forest habitat to support stable breeding populations. It is a canopy-foraging insectivorous neotropical migrant songbird

that breeds in mature deciduous forests with broken, structurally-d iverse canopies across

much of the eastern United States and wi nters 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 fo rest, particularly along stream valleys, and

19fragmentation and increasing isolation of remaining mature deciduous forest. The cerulean warbler appears to be more sensitiv e than most other North American birds to landscape-level changes in habi tat. The U.S. Fish and Wildlife Service 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 Mount ains Bird Conservation Region, which encompasses West Virginia. The AMBCR is thought to support ab out 80 percent of th e species’ entire breeding population, and the AMBCR breeding popul ation likely functions as a source for populations elsewhere in the breeding range.

d. Bats

Thirteen species of bats are found in West Virginia. Most North American bats are insectivorous, which capture their prey by foraging on th e wing, catching flying insects from a perch, or collecting insects from plants.

Different species of bats often have distinct life history trai ts and behaviors. Some bats are solitary and hang in tree fo liage, attics, barns, and othe r protected places during the day. Other bats are colonial and cluster in cave s 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 so mewhat offset by a long life span, often over 20 years. The little brown bat, common in No rth 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 in sects 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 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 ) and the Indiana bat ( Myotis sodalis ). Both the Indiana and Virginia big-eared bats are listed as endangered under the Endangered Species Act.

Indiana bats have been de scribed 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 so lely on emerged aquatic and terrestrial flying insects. They are habitat ge neralists and their selec tion 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 ar eas. 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.

20IV. BASIS FOR PROPOSED DETERMINATION

A. Section 404(c) Standards

The CWA requires that exerci se of the final Section 404( c) authority be based on a determination of “unacceptable adverse eff ect” to municipal water supplies, shellfish beds, fisheries, wildlife, or recreational areas . 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 clearly authorize EP A to initiate the Section 404(c) process after a permit has been issued.

Section 404(c) authorizes the Administ rator "to prohibit the specification ( including the withdrawal of specification ) of any defined area as a dis posal site." (emphasis added). Section 404(b) makes clear that disposal sites are specified for each permit by the Secretary of the Army (and such specificat ion must be consistent with the 404(b)(1) Guidelines). Thus, EPA's implementing regulations make clear that under Section 404(c) "the Administrator may exercise a veto over the specification by the U.S. Army Corps of Engineers or by a state of a site for the discharge of dredged or fill material." 40 CFR 231.1(a); see also definition of "with draw specification," 40 CFR 231.2(a).

EPA’s regulations at 40 CFR 231.2(e) defi ne “unacceptable adverse effect” as:

Impact on an aquatic or wetland ecosystem wh ich 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, consider ation should be give n to the relevant portions of the Section 404(b)(1 ) Guidelines (40 CFR Part 230).

Among other things, the Section 404(b)(1) Guid elines require consid eration of whether there are less damaging practicable alternativ es to meet the project purpose; whether the project would violate other e nvironmental standards, includ ing applicable water quality standards; whether the project would cause or contribute to significant degradation of the Nation’s waters; and whether the project as au thorized fails to adequately minimize and compensate for impacts to aquatic resources.

Specifically, those portions of the Guidelin es which are particularly important in evaluating the unacceptability of environmenta l impacts in this case are described below and further detailed in this proposed determination

• Less environmentally damaging prac ticable alternatives (230.10(a))

• 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))

• Impacts on existing indigenous aquatic organisms or communities (230.10(e))

• Cumulative effects (230.11(g)); and

21• Secondary effects (230.11(h))

The purpose of the Clean Water Act is to “r estore 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 “bio logical 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).

West Virginia has defined an aquatic life desi gnated use for its waters, and has adopted or developed numeric and narrative wa ter quality standards to prot ect resident aquatic life. While numeric criteria help pr otect a water body from the eff ects of specific chemicals, narrative criteria protect a water body from th e effects of pollutants that are not easily measured, or for pollutants that do not yet have numeric criteria, such as chemical mixtures, suspended and bedded sediments and floatable debris. Na rrative criteria have the same effect and importance as numeric cr iteria, and interpretation of narrative criteria fills an important gap in Clean Wate r Act protection. See 54 Fed. Reg. 23868, 23875 (June 2, 1989).

B. Adverse Impacts of the Proposed Project

The impacts from the Spruce No. 1 project will occur through several different pathways. There will be direct impacts caused by the di scharge of fill (excess spoil and construction of valley fills) into headwater streams. Lo ss of this habitat will impact wildlife that depend on headwater streams for all or part of their lifecycles. The loss of streams and

wildlife will have an effect on other areas by the removal of functions (such as

contribution of flow and nutri ents) performed by these areas and by discharges from the fill that may contribute pollutants to downstream waters. The project could contribute to conditions that would support blooms of golden alg ae that release toxins that can kill fish and other aquatic life. In addition, impacts from the project could contribute to cumulative impacts from multiple surface mining activities in the Coal River sub-basin.

An understanding of the adverse impacts of the proposed project requires an understanding of the nature and importance of headwater streams and their contribution

to the overall health of the watershed and to wildlife living in the watershed. Headwater streams play a significant role in the eco logy of the Appalachian region. They are sources of clean, abundant water for larger st reams and rivers and provide active sites for biogeochemical processes that support both aquatic and terrestria l ecosystems. The benefits of healthy headwaters are cumulative as the critical ecologi cal functions of many small streams flowing into the same river system are necessary to maintain ecological integrity of the larger stream and river systems. Ecosystem functions performed by

headwaters are lost when the headwater stream is buried or removed. These functions are lost not only to the headwater stream itself, but also to downstream ecosystems. Some of the functions of Appalachian headwater streams include interfacing with the terrestrial environment and transformation of organi c matter from the surrounding landscape (such

22as leaf litter) into nutrients; storing and reta ining nutrients, organic matter, and sediments; exporting water and nutrients downstream; and moderating flow rate and temperature.

In addition, as set forth below, the projec t has the potential of not only removing the ecosystem functions performed by the impacted areas, but also turning the impacted areas into sources discharging pollutants and de gradation into the downstream ecosystem.

In order to predict the imp acts of the proposed Spruce No. 1 project, EPA has examined impacts caused by similar projects both in the Coal River sub-ba sin and elsewhere, including but not limited to the similar a nd nearby Mingo Logan Da l-Tex operation. The impacts from the Spruce No. 1 Mine as authoriz ed are likely to be similar to those caused by the Mingo Logan Dal-Tex operation. This was acknowledged in the Spruce No. 1 EIS, which stated: “The past and presen t impacts to topography, geology, and mineral resources of the previous mini ng along the western side of Sp ruce Fork are similar to the anticipated impacts of the Spruce No. 1 Mine, as mining is proposed to occur in the same

strata.” EPA also has considered informati on related to impacts from the portions of the Spruce No. 1 Mine that have been constr ucted. Unless modified, the Spruce No. 1 project as currently authorized could cause impacts similar to the impacts caused by the Mingo Logan Dal-Tex Operation and other mining activity in the watershed.

Thus, EPA believes that the predicted impacts from the Spruce No. 1 Mine if constructed, as currently authorized, could have unaccepta ble effects on wildlife and fisheries. Consistent with the agency’s implementing regulations, EPA has gi ven consideration to the relevant portions of the Guidelines and we also believe that the project is inconsistent with the 404(b)(1) Guidelines.

1. Impacts to Wildlife and Fisheries

Impacts from the Spruce No. 1 project will occur in several ways. First there will be discharge of excess spoil and construction of valley fills that will result in the loss of headwater streams of the Right Branch of Seng Camp Branch, Pigeonroost Branch, and Oldhouse Branch, all tributaries to Spruce Fork. Wildlife that live in those streams or within the footprint of the valley fills, incl uding ecologically valuable aquatic organisms, will be buried. Loss of these types of h eadwater streams by valley fills may cause permanent loss of ecosystems that play a critical role in ecological processes. Disruptions in the biological processes of first- and second- order streams impact not only aquatic life within the stream, but also th e functions aquatic life contributes to downstream aquatic systems in the form of nutrient cycling, food web dynamics, and species diversity.

Additionally, the removal of Pigeonroost Br anch and Oldhouse Branch as sources of freshwater dilution combined with potential pollutant discharges fr om the project could adversely affect downstream water chemistr y, which in turn could have an adverse impact on aquatic and water-dependent wildlif e. Associated disturbances caused by the project (clearing, road construc tion, etc.) may impact habitat a nd result in discharges that could adversely affect water chemistry.

23Large-scale deforestation proposed at Spruce No. 1 Mine may adversely affect habitat

and result in adverse effects on terrestr ial wildlife. Approximately 2,278 acres of deciduous forests will be destroyed by the Sp ruce No. 1 Mine. Appalachian forests support some of the highest biodiversity in North America. Additionally, these forested headwaters are important components of th e overall ecosystem and provide valuable services, such as contributing organic matter from coarse wood to dissolved organic matter, which provides sustenance to stream bi ota and contributes to habitat structure. Loss of this valuable input to downstream waters could have an adverse impact on aquatic organisms that depend on these ecolo gical processes for maintenance of their populations.

a. Freshwater Macroinvertebrates

As previously described, macroinvertebrates ar e diverse in the Spruce No. 1 project area and because of their productivity and secondary position in the aquatic food chain; they play a critical role in the delivery of en ergy and nutrients along a stream continuum. They also are instrumental in cleaning exce ss living and nonliving or ganic material from freshwater systems, a service that contribute s to the overall quality of the watershed. The Spruce No. 1 project may adversely impact mo st of the mayfly, stonefly, and caddisfly genera that currently inhabit waters in or downstream of the project area through both burying their stream habitats and increasing chemical loading to receiving waters.

Data from other MTM/VF related studies w ithin this subecoregi on show a correlation between MTM/VF activity and downstream pa tterns of extirpation with many of these genera. Aquatic life is unlikely to surviv e in the erosion control ditches proposed for mitigating the loss headwater streams because of extreme chemical conditions, temperature extremes, and the overall lack of a lotic (flowing) flow regime. Some of the most sensitive genera will likely be extirpated or drastically reduced from the sites due to chemical and habitat degradation.

As previously noted, it is useful for predic tive purposes to consider the impact from similar, nearby mining operations. EPA compar ed benthic collections from the Spruce No. 1 site to Mingo Logan’s nearby Dal-Tex Mining site. Both areas had equal numbers of benthic samples collected. Eighty-five (85) total genera we re collected from Pigeonroost Branch and Oldhouse Branch between 1999-2000, while only 55 generally opportunistic genera were collected from B eech Fork and Left Fork Beech Fork that drain now-idled Dal-Tex operations. Th is represents a significant loss of macroinvertebrate genera. In particular, the decrease in the number of genera and individuals from more sensitive genera indi cates degrading water quality conditions. These conditions can be expected to occu r in the Spruce No.1 Mi ne if the project proceeds as authorized.

24The EPA also sampled several streams within the Spruce Fork watershed for the PEIS. Eight monitoring stations were established wi thin the watershed. Three monitoring sites were located within or near the Spruce No. 1 project area (White Oak Branch, Oldhouse Branch, and Pigeonroost Branch), and three were located in areas that historically had been impacted by mining (Rockhouse Creek, Beech Creek, and Left Fork of Beech Creek). The remaining two monitoring stati ons were located on the mainstem of Spruce

Fork and other stressors such as residences may have influenced the water quality and biological communities.

The results of the PEIS studies indicate that the streams w ithin and near the project area currently support high quality benthic macroi nvertebrate communities and water quality, while the streams located in historically MT M/VF mined areas are impaired based on the WVSCI and presence/absence of indicator macr oinvertebrate taxa. One can predict from these data sets that the high quality streams in the project area (i.e., Oldhouse Branch and Pigeonroost Branch) could be unacceptably adversely impacted by the Spruce No. 1

Mine.

b. Salamanders

The southern Appalachians, where the Spruce No. 1 project is located, have one of the richest salamander fauna in the world. Impact s from the activities authorized as part of the project could have a signi ficant adverse impact on this wildlife group lo cated within the project area. The Spruce No. 1 Mine wi ll have significant adverse impacts on the salamander community either through direct burial, habitat degradati on, or discharges of

toxic chemicals.

As previously stated, thirty-one (31) speci es of salamanders are known from the West Virginia portion of the PEIS study area. Of these, 21 species are known to occupy cove hardwood forests while 25 species are know n to inhabit mixed mesophytic hardwood forests like those present within portions of the Spruce No. 1 project area. Petranka (1993) presented a conservative estimate of about 4,050 salamanders per acre in mature

forest floors in Eastern forest s. Twice as many larval salamanders are estimated to occur (~8,000/acre) in these same areas.

Applying these conservative estimates to the Sp ruce No.1 Mine project area indicates that more than 20 million salamanders could be buried by the authorized valley fills and adjacent mined uplands. In stark contrast, re cent data from Gingerich (2009) showed that coal mine erosion control ditches (like thos e proposed for mitigation in the Spruce No.1 permit) between three and 20 years old had strikingly different amphibian communities than undisturbed sites. Specialist salamande r species present in undisturbed sites were replaced with more generalist frog species on the reclaimed sites. Frogs are not ecological equivalents of headwater sala mander species. The loss of specialist salamanders and the specific functions they pr ovide, therefore, may result in significant adverse impacts to the aquatic ecosystem.

25Additional data from a USFWS study conducte d in MTM/VF areas of the Appalachian mountains found salamander assemblages in va lley-filled streams had lower SPAR index scores (a salamander index of biological in tegrity) than non-filled streams. A 2004 study by FWS compared unmined White Oak Branch to the mine-impacted Rockhouse Creek. The salamander assemblage in Rockhouse Creek scored a 6.7 on the SPAR compared to a perfect 10 of White Oak Branch. No larv al Northern Dusky or Appalachian Seal salamanders were found in Rockhouse Creek, which may indicate reproductive effects on these sensitive species. Moreover, salamanders in Rockhouse Creek as well as in other valley filled streams had higher concentrations of selenium than salamanders from nonfilled streams.

These data indicate that salamanders declin e or disappear from surface mined areas and that certain mining mitigation measures do not offset these impacts. Because salamanders represent the main vertebrate pr edator in these headwater channels and will be eradicated under the proposed project, EP A believes that a key component of the aquatic food web will be lost from the a quatic ecosystem which may have unacceptable

adverse affects on wildlife and fish resources in the project area.

c. Fish

The fish assemblage in Spruce Fork is curren tly considered healthy. While fish are less sensitive to water chemistry changes with re spect to TDS/conductivity, it is important to ensure that the currently healthy fish assemb lage is protected. Some studies have shown that mountaintop mining for coal and creation of valley fills has had a harmful effect on the composition of stream fish communities. Comparison of streams without mining in

the watershed and sites downstream of valle y fills in Kentucky and West Virginia indicate that streams affected by mining ha d significantly fewer total fish species and fewer benthic fish species than streams w ithout mining in the same areas. A similar pattern of fewer taxa in streams affected by mining was observed with respect to species

richness.

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 this study streams were classified based on existing levels of disturbance (e.g., no mining in the watershed, sites downstream of valley fills, sites with mountaintop mining in the watershed, sites downstream of valley fills, and sites with residential development in the watershed) and compared fish health among stream classes. The study showed that assessment scores from the sites downstream of valley fills were significantly lower than scores fr om sites without mining in the watershed, indicating that fish communities were degraded in sites downstream of valley fills.

EPA believes that the loss of 2,278 acres of forest and healthy headwater streams of Spruce Fork and the permanent loss of their eco logical processes such as nutrient cycling and production of organic matter for downs tream food webs may result in adverse impacts to downstream fishery resources.

26Furthermore, due to the removal of freshw ater dilution currently being provided by Pigeonroost Branch and Oldhouse Branch to Spruce Fork there is the potential for pollutants such as selenium to bioaccumulate and be toxic to fish and wildlife. Adverse impacts of increased levels of selenium include birth defects in fish and other aquatic life

and can also result in toxic affects to em bryos, resulting in abnormal development or death for those organisms. WVDEP is currently conducting se veral studies on the

sublethal effects of seleni um on fish. Other studies suggest a link between the degradation of fish health and mountaintop mining activities. As a resu lt of these studies, EPA believes that Spruce No. 1 as authorized has the potential to have unacceptable

adverse affects on fish resources.

d. Birds

Approximately 2,278 acres of deciduous fore sts will be destroye d by the Spruce No. 1

Mine and 7.48 miles of headwater stream w ill be buried as a result of valley fills authorized by the project. Loss of headwater streams from the project could impact water dependent birds, such as the Louisiana wa terthrush, that require forested headwater streams for foraging on insects and nesti ng by elimination of the headwater areas associated with Pigeonroost and Oldhouse Br anch. The West Virginia Breeding Bird Atlas (1984-1989) lists the Loui siana waterthrush as a probabl e breeder in the Spruce No. 1 project area.

As indicated previously, the Appalachian Mountain Bird Conservation Region (AMBCR) is thought to support a substant ial portion of the species’ breeding population, perhaps as much as 45 percent. Due to the large propor tion of the population that breeds there and the threats to habitat and water quality posed by a variety of land and water uses that are predicted to intensify in coming years (inc luding large-scale loss of habitat and water quality degradation associat ed with Appalachian surface mining), the U.S. Fish and Wildlife Service has designated the Louisian a waterthrush a Species of Management Concern and a Species of Conservation Concern within the AMBCR.

The Louisiana waterthrush’s di et is comprised predominantly of immature and adult aquatic macroinvertebrates found in and alongside headwater st reams. Studies indicate that breeding territory density and occupancy were reduced along streams where benthic macroinvertebrate communities had been degr aded due to anthropogenic land uses and acidification. Lower breeding territory dens ities occurred along streams impacted by acid mine drainage than along circumneutral str eams. Similarly, some indices of benthic macroinvertebrate integrity were higher wh ere breeding Louisiana waterthrushes were present than areas from which they were ab sent. Stream reaches where breeding birds were detected had a greater proportion of pollutio n-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.

In addition to stream pollution from anthr opogenic land uses, elevated predator numbers from landscape-scale forest fragmentation a nd the loss of riparian forest canopy could also negatively impact future population leve ls of the Louisiana waterthrush. Ongoing

27impacts associated with landscape disturba nces, including defoliati on, increased stream temperatures, and compositional shifts in benthic macroinvertebrate communities, also could reduce populations in the AMBCR. Ther efore, measures of Louisiana waterthrush distribution and reproduction may be useful indicators of both stream and forest ecosystem integrity.

Management for this species has focused on protecting core wooded riparian habitat, including establishment of undisturbed ripa rian forest cover, and preservation and improvement of water quality to ensure aquatic insect biomass and diversity. Data from the PEIS showed that most of these forest-spe cific bird species were eliminated from the adjacent Dal-Tex mine area. For water-dependent wildlife, like the Loiusiana waterthrush, preservation of large tracts of forest containing headwater streams is needed for the conservation of this specie s in the central Appalachians.

The project also could impact other bird specie s 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 unde rstory; and wood thrush, Sw ainson’s warbler, Acadian flycatcher, and ovenbirds in mesic hardwoods . These and many other avian species are all impacted by forest fragmentation and habitat loss caused by surface coal mining.

Most notable is the Cerulean warbler, a species that has declined ra pidly over the last 40 years, which relies on mature forests, a nd whose core range mirrors the Appalachian Coalfields. Analyses of North American Breeding Bird Survey (BBS) data for the

cerulean warbler indicate that the species declined sharpl y and steadily by 3-3.2% per year from 1966-2005, the steepes t rate of decline of a ny North American warbler monitored by the BBS. Geostatistical analysis of BBS data concluded that declines in the species’ abundance was concen trated in areas of formerly high abundance within the breeding range. The species is now absent or much reduced in some portions of its range, and the overall population trend is one of rapid range-wide decline. Today’s population

of Cerulean warblers is more than 75% lower than the population in 1966.

The decline of the cerulean warbler is likely related to habitat loss and degradation on both the wintering and breeding ranges. Up to 60 percent of th e species’ wintering habitat may have already been converted from primary forest to other land uses, and loss, fragmentation, and degradation of eastern North American forests represent a threat to its reproductive success.

Recent studies have documented poor reproductiv e success for this sp ecies in areas with low overall forest cover and high degrees of forest fragmentation. Recommended conservation strategies focused on minimizi ng habitat loss in more productive forested

habitats. Others studies f ound that cerulean warbler abundance increased with distance from edges created by surface mining in southwestern West Virginia, and that abundance was positively correlated with large blocks of mature deciduous forest and low amounts of edge in the landscape. The authors c oncluded that mountaintop mining-valley fills altered the spatial configuration of forest habitats and created edge and area effects that

28negatively impacted the abundance and occurrence of cerulean warb lers in the vicinity of

reclaimed mines.

Additional investigator s found that the Cerulean warble r breeding population in forested areas of southern West Virginia, which c onstitutes a substantia l portion of the overall population, may be threatened by loss and de gradation of forested habitats from mountaintop mining-valley fill activities. Th ese investigators reported that territory density was about 6.5 times higher in intact forests (4.6 territories per 10 ha) than in fragmented forests (0.7 territories per 10 ha). They also found that territories occurred more frequently on ridges than at mid-slope or in valleys, and sugge sted that mountaintop mining-valley fill may have a greater imp act on breeding populations of cerulean warblers than other types of forest frag mentation because it removes these ridges. Investigators concluded that the species was negatively affected by mining activities from loss of forested habitat, particularly ridge tops, and from the degr adation of remaining forests, as indicated by lower territory density in fragmented forest s and lower territory density closer to mine edges.

Spatial analyses of the eff ect 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. Investig ators concluded that the loss of Southern Appalachian interior forest is of global sign ificance due to the rarity worldwide of large expanses of temperate deciduous forest.

The Spruce No. 1 Mine will impact mature forested habitat, over a long timeframe, replacing the impacted areas with reclaime d 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 afte r 15 years. The PEIS found significant differences in bird populations between forest ed and reclaimed sites, namely the loss of the above mentioned species, and subs equent replacement by more opportunistic grassland species. Also, the loss of the h ealthy headwater areas of Spruce Fork will reduce the feeding and foraging areas availabl e to specialist Central Appalachian bird species thereby potentially impacting their vi ability in the Spruce Fork watershed and the greater Central Appalachian ecoregion.

Additional impacts to avian specie s may be realized by elevated levels of selenium in the Spruce Fork waters that are feeding areas for birds. In some freshwater food webs,

selenium has bioaccumulated to four times th e level considered toxic,which can expose birds to reproductive failure when they eat fish or insects with high selenium levels.

As a result of the potential for these impacts to occur to avian species within the project area, EPA believes that the Spruce No. 1 projec t as authorized has the potential to cause or contribute to unacceptable adve rse impacts to wildlife.

e

. Bats

Large-scale mountaintop removal/valley fill mi ning has been listed among the threats to bat species in the region according to inform ation supplied to EPA by the FWS. Loss of

29the bat’s habitat, foraging areas, and f ood sources – in conjunction with recently

indentified concerns related to white-nose s yndrome – may result in unacceptable adverse impacts to wildlife resources.

In the time since the Spruce Fork No. 1 EIS was produced and the SMCRA and CWA Section 404 permits were issued, white-nose syndrome (WNS), a fungal infection, was first reported among hibernating bats in West Virginia. In the winter of 2008-2009, WNS was found in 4 caves in West Virginia, incl uding known hibernation locations for Indiana bats ( Myotis sodalis ) and Virginia big-eared bats ( Corynorhinus townsendii virginianus ). Both the Indiana and Virginia big-eared bats are listed as endangered under the Endangered Species Act.

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 co mplex challenge of conserving bat species. Previous mining and logging activities and fore st loss have also been identified as having adverse affects on bat populations. Commonl y used reclamation techniques, many of which are designed to minimize erosion and pr ovide backfill stability, are incompatible with re-establishment of trees necessary for successful roosting by bats. Such reclamation techniques have the pote ntial to further stress bat populations.

2. Impacts to water quality

In considering water quality, it is important to recognize that adve rse changes in water chemistry frequently have a corresponding imp act on wildlife and fisheries that live in or depend upon the water. Potential adverse im pacts to water chemis try are considered because they may affect the native aquatic and water-dependent communities in the Spruce Fork watershed. Add itionally, the 404(c) regulations require consideration of whether the project would violate other envi ronmental standards, including applicable water quality standards and as such EPA has considered the potential adverse impacts of the project on water quality of Spruce Fork and its contributing watershed.

a. Selenium (Se)

Discharges from the Spruce No. 1 project ar e likely to increase selenium loading to downstream waters. Selenium is a naturally occurring chemical element that is an essential micronutrient, but excessive amounts of selenium can also have toxic effects. Adverse impacts of increased levels of seleni um include birth defect s in fish and other aquatic life and can also result in toxic affects to embryos, resulting in abnormal development or death for those organisms. For aquatic animals, the concentration range between essential and toxic is very narrow, being only a few micrograms per liter in water. As described above, selenium toxic ity is primarily manifested as reproductive impairment due to maternal transfer, resul ting in embryotoxicity (embryonic death) and teratogenicity (birth defects) in egglaying vertebrates. The most sensitive toxicity endpoints in fish larvae are teratogenic deform ities such as skeletal, craniofacial, and fin deformities, and various forms of edema. Embryo mortality and severe development abnormalities can result in impaired recrui tment of individuals into populations.

30WVDEP has also studied fish la rval deformity rates and sele nium concentrations within fish eggs, although not in the vicinity of the Spruce No. 1 project area. This draft study

indicates that elevated selenium concentrati ons in fish eggs, incr eased larval deformity rates and increased deformity rates in mature fi sh were all associated with elevated water column selenium, indicating unacceptabl e adverse effects on fisheries. The sedimentation ponds traditionally used to treat drainage from mining operations generally are not effective in removing se lenium from the discharge.

West Virginia has established a numeric chr onic water quality criteri on for selenium of 5 ug/l to protect instream aquatic life. Curre nt exceedances of West Virginia’s numeric water quality criterion for selenium within the Coal River sub-ba sin generally and the Spruce Fork sub-watershed have been identified by WVDEP. These confirmed exceedances of the numeric water quality criterion for selenium demonstrate that the geology in the area of the Spruce No. 1 Mine is likely to release se lenium during mining. In West Virginia, coals that contain the hi ghest 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. WVDEP reports that some of the highest coal selenium concen trations are found in the central portion of the Coal River watershed where significant active mining and selenium impaired streams are located, in the immediate vicinity of th e Spruce No. 1 project.

Water quality monitoring data from stream s draining the nearby Dal-Tex mine and from the outfalls draining the currently operational portions of th e Spruce No. 1 Mine indicate

levels of Se that exceed the chronic numeric water quality criterion of 5 ug/l. The data from the Dal-Tex mine do not indicate any decr ease in Se concentrations over time (from 2000-2007). These data strongly suggest that the Spruce No. 1 Mine is likely to cause exceedances of the Se water quality criterion an d lead to significant degradation of water quality.

In addition, as noted above, portions of the Sp ruce No. 1 project have been constructed in the Seng Camp Creek sub-watershed. The NPDES permit issued for the Spruce No. 1 project imposes effluent limitations for sele nium in only four of 25 outfalls and requires only monitoring (no limitations) for selenium at the remaining outfalls. Recent NPDES discharge monitoring reports show that th e constructed portion of the Spruce No. 1 project is discharging selenium at levels that exceed West Virginia’s numeric water quality standard.

This project-specific data from both Dal- Tex and the current operational portions of Spruce No. 1 confirms EPA’s concern based on data from nearby projects and other water quality data for the Sub-basin that the project may discharge high levels of selenium to downstream receiving waters. WVDEP data from several years of sampling in the Beech Creek watershed where the majority of the mining has occurred, has revealed Se levels that range from 5.6 ug/l to 22 ug/l, exceeding the chronic water quality criterion for selenium of 5 ug/l to protect instream aquatic life. EPA has reason to believe, based on existing and adjacent mine data that Spruce No. 1 has the potential to

31cause or contribute to discharges of selenium that could cause unacceptable adverse impacts to fish and wildlife resources.

In some freshwater food webs, Se has bioaccu mulated to four times the toxic level; this can cause teratogenic deformities in larval fis h, leave fish with Se concentrations above the threshold for reproductive failure (4 ppm), and expose birds to reproductive failure when they eat fish with selenium concentratio ns greater than 7 ppm. An important aspect of selenium residues in aqua tic food chains is not direct toxicity to the organisms themselves, but rather the dietary source of se lenium they provide to fish and wildlife species that feed on them

.

b. Total Dissolved Solids/Conductivity

Discharges from the Spruce No. 1 project ar e likely to include high levels of total dissolved solids (TDS), which will increase instream specific conductivity downstream of the project and adversely affect the naturally occurring aquatic communities. Several studies have documented significant and str ong correlations between degraded instream resident biota and high specific conductivity or TDS concentrations downstream of mining operations. The scientific literature in dicates that several i ons can be toxic, and they have varying relative toxic ity to aquatic life. Furthermore, mixtures of ions can have ameliorative, synergistic or additive effect s, depending on the mix of ions. Typical Central Appalachian alkaline mine drai nage includes several component ions (magnesium, sulfate, bicarbonate, potassium) that can be toxic to aqua tic life individually or as a mixture. Conductivity is an excellent in dicator of the mixture of ions and is also a good predictor of aquatic life use impairment . Increases in conductivity impair aquatic life use, are persistent over time, and cannot be easily mitigated or removed from

streams.

To understand the impacts, it is helpful to understand the rela tionship among salinity, TDS, and specific conductivity. Salinity re flects the amount of TDS in water. The majority of TDS in many waters are simply salts. Salinity is the mass of salt in a given mass of water, and is normally reported in parts per thousand (ppt ) or parts per million (ppm). TDS is a measure of the combined content of all inorganic and organic

substances contained in a solution in molecu lar, ionized or micro-granular (colloidal) suspended form and is normally reported in the units mg/l. Specific Conductivity (hereafter referred to as conduc tivity) is the ability of a so lution to carry an electric current at a specific temperature (normally 25o C) and is normally reported in the units uS/cm. Conductivity and TDS bot h increase as the concentration of ions in a solution increase and are very strongly correlated. No rmally, conductivity is reported by state and federal monitoring agencies because it is an instantaneous measurement that can be collected in situ with a meter, does not requ ire a laboratory analysis , and is precise and

accurate.

Natural waters in the Spruce No. 1 proj ect area have very low conductivity (50-100 uS/cm) and TDS and are considered fresh wate r. However, water impacted by alkaline mine drainage such as those exhibited at Dal-Tex and anticipated for Spruce No. 1 has

32been shown to have elevated conductivity. Several component ions of alkaline mine drainage (magnesium, sulfate, bicarbonate) are known to be toxic to aquatic life and models have been developed to predict the acute toxicity of mixtures of ions to aquatic organisms. EPA Region III research based on ion toxicity models indicates that ion concentrations in alkaline mine drainage in th e Central Appalachians (such as those likely to be discharged by the Spruce No. 1 Mine) commonly reach levels that could cause acute toxicity in native aquatic organisms.

Neither WVDEP nor EPA has numeric water qua lity criteria designed to protect aquatic life from elevated TDS (which can be measured by conductivity). However, there is strong scientific evidence that indicates what le vels of conductivity would likely protect aquatic life. These data and sc ience can be used to assess current conductivity levels in nearby mines and to predict the effects from the proposed Spruce No. 1 Mine. As described below, current instream water qua lity in the proposed project area is in excellent/good condition, and c onductivity levels are less than the most protective level suggested by the data. In contrast, conductiv ity levels in the previously mined streams adjacent to the project area exceed the highest of the levels suggested by the data, which means there is potential for de gradation of water quality a nd a high likelihood of harm to aquatic life. The table below, summarized from WVDEP data and sc ientific literature, identifies conductivity levels at which adverse impacts may occur.

Conductivity Levels for Evaluating the Potential for Adverse Impacts

Level at which conductivity ruled out as a possible stressor in WV TMDL analysis <327uS/cm

High probability of impairment to native biota >500 uS/cm Corresponds to levels of TDS id entified as likely to support growth of toxic golden algae >714 uS/cm

Level at which conductivity may be a "moderate" stressor in recent

TMDL studies >767 uS/cm

Data from WVDEP indicates the average condu ctivity values for the unmined streams on the Spruce No. 1 project area are very low. Oldhouse Branch had an average conductivity level of 90 uS/cm; White Oak Branch had an average conductivity level of 118 uS/cm. Both of these conductivity values indicate excellent water quality. Sulfate

concentrations in these streams are also low (28 mg/l in Oldhouse and 24 mg/l in White Oak Branch). Two of the streams draini ng the project area (Pigeonroost Branch and Seng Camp Creek) contain small amounts of hi storical mining in their watersheds.

WVDEP data indicate the av erage conductivity for Piege onroost Branch was 199 uS/cm and sulfate was 99 mg/l, and in Seng Camp Creek conductivity was 189 uS/cm and sulfate was 61 mg/l. The slightly elevated av erage conductivity and su lfate values reflect the relatively small amount of histor ical mining landuse in these watersheds.

By contrast, the average conductiv ity and sulfate levels are elev ated in other tributaries to Spruce Fork where historical mining is simila r to what would occur if Spruce No. 1 Mine was constructed as authorized. For example, the streams draining mined areas to the west

33of Spruce Fork have the following average conductivity and sulfat e values: Rockhouse Creek, 1012 uS/cm conductivity, 407 mg/l sulf ate; Left Fork of Beech Creek, 2426 uS/cm conductivity, 1019 mg/l sulfate; B eech Creek, 1432 uS/cm conductivity, 557 mg/l sulfate; and Trace Branch, 971 uS/c m conductivity, 569 mg/l sulfate.

The average conductivity and sulfate concentra tions in the mainstem of Spruce Fork are also strongly elevated to as much as ten times above the natural background levels in Oldhouse Branch. The average conductivity at almost every monitoring site on the mainstem Spruce Fork exceeded 500 uS/cm. Only one site had an average conductivity of < 500 uS/cm, which was located upstream of the project area, upstream of Adkins Fork, and southeast of Blair, WV.

Conductivity values for several tributaries dr aining the Spruce No. 1 project currently indicate excellent water quality. These waters with lower conductivity, such as Pigeonroost Branch and Oldhouse Branch, ma y be providing freshwater dilution to Spruce Fork thereby preventing conductivity le vels in Spruce Fork from becoming even more elevated. Discharges from valley fills into Pigeonroost Branch and Oldhouse

Branch would both remove sources of freshwat er dilution to Spruce Fork and create new sources of TDS/conductivity.

Additionally, WVDEP data from 2002-2003 strongly indicate that any assimilative capacity for TDS or conductivity and component ions on the main stem of Spruce Fork has already been used by other mining discharg es in the watershed. In light of the known relationship between elevated levels of TDS/conductivity an d extirpation of portions of the native assemblages, any additional TDS or conductivity added to the mainstem of Spruce Fork by the project could cause un acceptable adverse impacts to the receiving streams and to Spruce Fork.

Increases in conductivity associ ated with the Spruce No.1 proj ect could also increase the likelihood of an outbreak of toxic golden alg ae. This is supported by evidence of a recent algal bloom of an invasive, brackish-water golden algae species (linked to increased conductivity) in the northern co alfields of WV, which cause d a devastating aquatic life kill (fishes, mussels, salamanders).

3. Potential to Contribute to Condition s that Support Growth of Toxic Golden Algae

The Spruce No. 1 project is likely to c ontribute to instream conditions (including

increased instream total disso lved solids/conductivity and co nstruction of sedimentation ponds) in or near Spruce Fork that may support golden algae Prymnesium parvum that

releases toxins that kill fish and ot her gill-breathing aquatic organisms.

P. parvum is associated with an extensive and severe aquatic life kill that killed thousands of fish, mussels, and other aquatic organisms in Dunkard Creek, West Virginia and Pennsylvania in September 2009. At the ti me of the Dunkard Cr eek aquatic life kill, biologists reported observations of not only dead organisms, but also fish and other

34aquatic life behaving abe rrantly in an effort to escape the toxin. Biologists reported mud puppies (an aquatic salamander that lives its entire life underwate r) crawling out of the water and onto rocks and the shoreline in an apparent attempt to escape from the toxic water. These organisms, which are obligate aquatic organisms with no functioning lung system, also died from effects of golden algae. Field biologi sts observed numerous individuals as dried-up carcasse s on rocks and along the shoreline. Fish were observed avoiding the mainstem of Dunkard Creek by prac tically “stacking up” in the mouths of tributaries, subjecting themselves to feedi ng by blue heron rather than escaping to the

mainstem of Dunkard Creek.

The identification of P. parvum in 2009 in Dunkard Creek, on the Pennsylvania and West Virginia border near Morgantown, WV, was th e first identification of this invasive aquatic species in the Mid-Atlantic States. The factors that are mo st closely associated

with this risk are believed to be:

• Proximity to a known source of Prymnesium parvum ;

• TDS in high enough amounts to support P. parvum (estimated to be between 500 and 1000 mg/l (conductivity 714-1428 uS/cm);

• Nutrients of great enough amount to initiate a bloom of P. parvum;

• 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).

WVDEP has identified Spruce Fork as a “water of concern” because of its potential (due to already high levels of TDS/conductivity) to support golden algae blooms. Other waters of concern near the Spruce No. 1 proj ect include the Little Coal River and West

Fork/Pond Fork.

Golden algae was identified (in very hi gh numbers) in Cabin Creek of the Kanawha drainage, only 25 miles over the ridge to the East. Because this alga can easily move with waterfowl, the risk of introducing P. parvum in the Spruce drainage is high. As described above, the Spruce No. 1 project is li kely to increase levels of TDS/conductivity in Spruce Fork, thus creating conditions more favorable to golden algae. In addition, numerous sedimentation ponds will be constr ucted, which could create areas of pooled habitat more favorable to golden algae.

Because of the likelihood that the Spruce N o.1 project as authorized will create pooled water in the form of sedimentation ponds and discharge high levels of TDS to the remainder of Pigeonroost Branch, Oldhouse Br anch and Spruce For k, the project could contribute to conditions, especially in Spruce Fork, that could support P. parvum with the resultant possibility of aquatic life kills incl uding fish. Based on this information EPA believes that Spruce No. 1 as authorized coul d result in unacceptable adverse impacts to

fish and wildlife resources.

354. Proposed Mitigation may not offset an ticipated impacts to an acceptable level

Compensatory mitigation involves actions take n to offset unavoidable adverse impacts to wetlands, streams and other aquatic resources authorized by Clean Water Act Section 404 permits and other Department of the Army (DA) permits.

While we recognize that the project includes mitigation (i ncluding stream creation and enhancement of existing streams) to comp ensate for unavoidable adverse impacts, EPA believes that the quality and function of the impacted resources were not appropriately assessed and accounted for in the mitigation pl an. EPA is therefore concerned that the mitigation proposed for the Spruce No. 1 project may not offset the anticipated impacts to an acceptable level.

In order to develop an effective compensatory mitigation plan the following steps are required:

• Fully assess the range of physic al, chemical and biological features that contribute to the pre-project level of function of ta rgeted ecological systems. This would include areas both directly affected (e.g., filled streams and valleys), and indirectly affected (e.g., dow nstream receiving waters, st ream reaches targeted for enhancement).

• Develop a range of mitigation practices that fully compensate for all lost or modified features (physical, chemical, bi ological) and the concomitant loss of

both function and areal extent.

• Develop a protocol for monitoring the extent (over space) and ra te (over time) of compensatory practices. This should incl ude remedial practices to offset any unplanned failure in the compensatory mitigation plan.

An adequate compensatory mitigation plan should be based upon a delineation of on-site impacts to ephemeral, intermittent, and perennial stream-types in the Spruce Fork watershed. EPA is concerned that the proposed mitigation underestimates the impacts to perennial and intermittent streams by misclassifying them, thereby resulting in an insufficient baseline to begin designing adequate stream compensation. These determinations made by consultants for the project do not correspond with current scientific information concerning the de signation of these stream types.

EPA is concerned that the approved delineation of streams-types in the project area may not accurately reflect the stream-types exhibite d on-site. The delineations are now nine years old and EPA believes new field studies using more up-to-date assessment tools would provide a better repr esentation of proposed impacted water resources. EPA compared lengths of stream channel in Pigeonroost, Seng Camp, and Oldhouse from USGS estimates to estimates made by the permittee. The median drainage areas for ephemeral/intermittent (14.5 acr es) and intermittent/perennial (40.1 acres) have been documented by USGS. Further studies by US EP A Office of Research and Development, US EPA Region III and University of Kentuc ky show that these USGS drainage area

36estimates are accurate. Using this informa tion and on-the-ground field observations in the Spruce No. 1 project area, EPA believes that the proposed valley fills will likely impact a greater quantity (by thousands of feet) of intermittent and perennial stream channels than is proposed to be compensa ted by the project’s Compensatory Mitigation Plan (CMP).

In addition, the CMP utilized an assessment referred to as the Stream Habitat Unit (SHU)

method to calculate debits and credits. Th is assessment is a combination of linear footage of impact, habitat assessment scor es, and stream hydrological status. EPA

believes that such a calculation of debits and credits inadequa tely quantifies the mitigation needed for this project. The SHU as presented in the CMP only accounts for the physical aspects of stream condition and co mpletely ignores the in terrelationship of water chemistry and biological resources in stream functioning, in contravention of the multiple factor assessment approach noted above. In addition, while the current DA permit refers to biological success criteria, it is not clear that it requires replacement of lost biological function and comparable str eam chemistry in order to meet adequate compensatory mitigation success criteria.

The FWS also expressed concern regarding the proposed CMP in a letter dated May 30, 2006 from the Department of Interior, Phila delphia to the Huntington District Army Corps of Engineers. Determinations made by the FWS at that time concluded that (partially excerpted here):

“The Stream Habitat Unit (SHU) assessment methodology selected by the applicant only consid ers the physical characteristics of the stream. It does not include biological or chemical characte ristics 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.”

Since the permittee applied the SHU methodology to describe the streams, the compensatory mitigation also only addresses the physical component of the streams. Compensatory mitigation must replace the aq uatic resource function lost or adversely affected by authorized activities. Therefore, to conclude that th e functions are being replaced, the compensatory mitigation must create streams that are capable of sustaining the same biological, chemical, and physical characteristics of the streams that have been eliminated by mining activity.

The project’s compensatory mitigation plan is unlikely to sustain the biological, chemical, and physical characteristics of the affected streams for two primary reasons. First, it is difficult to replace the stream functions when they have not been adequately assessed in the first place. Second, creati ng streams using on-site drainage ditches, employing enhancement measures that include channel or habitat improvement and changing the classification of a stream from intermittent to perennial are not sufficient to replace the quality of the streams impacted.

37Although the permittee considers on-site erosion control structures equivalent to existing streams, drainage ditches are designed strictly with a physical component and lack a replacement of stream function. The res ources that are being lost are healthy, biologically functional streams. The erosion control structures are designed to convey water and, thus, cannot replace the streams’ lost ecological services. Erosion control structures lack groundwater-derived and nutri ent-rich base flow, temperature regimes, habitat diversity, gradient, floodplains, connect ivity to downstream ecosystems, and other

critical features of natural streams.

The permittee indicates that the streams w ill be enhanced by additional flow, changing them from intermittent to perennial. Howeve r, many species rely on intermittent streams as part of their life history strategy.

The permittee also proposes to improve channe l or habitat on near by streams. Streams are complex systems whose hydrogeomorphic beha vior and biotic reco very are not easily predicted. Extensive, long-term monitoring is required to demonstrate enough ecological benefit to already-functioning streams to offs et the proposed losses. Such actions would have to be taken at a ratio substantially gr eater than 1:1 to raise the mitigation areas’ functions enough to compensate fo r the loss of stream functions.

The permittee has not indicated that water qua lity and biological diversity monitoring will be conducted after completion of the proposed project. Water chemistry and biological diversity should be used as indicato rs of project success. The project will be

successful when the function of the restored st reams (chemistry and bi ological diversity), is equivalent to that of the impacted str eams. Without a thorough functional assessment prior to initiation of the project, it is im possible to determine when the mitigation is

successful.

In summary, the current propos al is problematic for severa l reasons: first, it fails to recognize the true functioning of healthy head water streams and so therefore fails to replace the streams’ lost ecological services ; and second, the planned control structures are waste treatment systems designed to cont rol poor quality waters and then convey those waters offsite. These systems have th e potential to export poor-quality water to downstream waters, in direct contrast to cu rrent headwater streams that provide fresh water to downstream reaches and to Spruce Fork.

EPA also believes that other proposed stream channels located at the project impact area also have the potential to export poor water quality to downstream waters. If water quality in these created channels and the eros ion control channels are taken into account, they not only fail to replace true stream f unction, but they could cause additional adverse impacts downstream.

Although more recent efforts have been made to more fully assess some physical and biological attributes of regi onal headwater stream system s, the instream biota and chemistry component continue to be effectivel y ignored. In effect, the baseline starting

38point for developing an adequate compensato ry mitigation plan has not been developed.

Studies have demonstrated, moreover, 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. Moreover, the mitigation does not account or compensate for many of the downstream impacts caused by the proj ect. Finally, there is no evidence in the peer-reviewed literature that the type of stream creation proposed in the CMP will successfully replace lost bi ological function and comparab le stream chemistry.

As a result of these concerns, EPA believes that the adverse impacts associated with the Spruce No. 1 project as authori zed, are not adequately offset by the CMP and as such we believe the project may have unacceptable adve rse impacts to fish and wildlife resources as described throughout this notice.

5. Consistency with th e 404(b)(1) Guidelines

The CWA requires that exercise of fina l Section 404 (c) auth ority be based on a determination of “unacceptable adverse eff ect” on municipal water supplies, shellfish beds and fishery areas (including spawning a nd breeding areas), wild life, or recreational areas at 40 CFR 231.2(e) incl uding taking into account:

...all information available to him (the Administrator), including any written determination of compliance with the S ection 404(b)(1) Guidelines made in 40

CFR Part 230.

The Guidelines prohibit the discharge of dredged or fill material into waters of the United States if there is a less environmentally da maging practicable alte rnative, if it would

cause or contribute to a violation of a state water quality standard, or if it would cause or contribute to significant degrada tion of waters of the United St ates. As described above, those portions of the Guidelines which are particularly important in evaluating the unacceptability of environmental impacts in this case are:

• Less environmentally damaging practic able alternatives (230.10(a));

• 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));

• Impacts on existing indigenous aquatic organisms or communities (230.10(e));

• Cumulative effects (230.11(g)); and

• Secondary effects (230.11(h)).

a. Alternatives

As indicated in EPA’s letter dated October 16, 2009, EPA believes that this project may be modified in a way that will address the environmental impacts described herein. EPA

39believes that additional avoidance and mini mization of anticipated impacts may be achieved by constructing the project sequentiall y and allowing monitoring data from each portion of the project to inform decisions re garding the remainder of the project. These monitoring data would then be used as a basi s for specific actions in response to adverse changes in water quality.

b. Water Quality

With respect to water quality and signifi cant degradation, neither the Corps nor WVDEP considered information demonstrating that surface mining with valley fills in Central Appalachia is strongly relate d to downstream water quality degradation. Specifically, the Corps apparently did not consider the releva nce of impairment to waters draining the nearby Dal-Tex operation. The water qual ity degradation caused by nearby mining operations is an important source of information for predicting the impacts from the Spruce No. 1 project.

The Spruce No. 1 EIS recognizes that discharg es from the Spruce N o. 1 Mine are likely

to be similar to those from the Dal-Tex mine: “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 anti cipated impacts of the Spruce No. 1 Mine, as mining is proposed to occur in the same stra ta.” While the EIS notes that the water quality draining the Dal-Tex complex is alka line, it does not consider the water quality impairments (including violations of the ir on and selenium numeric criteria and adverse biological impacts) identified by WVDEP in the streams draining the Dal-Tex operation.

The Corps and WVDEP also failed to consider adequately the potential for discharges of TDS from Spruce No. 1 to ra ise instream conductivity le vels downstream from the project, resulting in impairment to the naturally occurring aquatic community. The Spruce No. 1 EIS states: “Total dissolved so lids may increase in mine area discharges, depending on the nature and timing of groundw ater contributions to sediment pond/storm water management system. However, discha rges during the life of the mine would be anticipated to meet the requirements of the CWA Section 401 and 402 water quality standards. If discharges would exhibit conc entrations out of compliance with effluent limits, the discharges would be treated as necessary to meet WVNPDES and state water quality standards.” The EIS does not consid er that the 402 permit does not include an analysis pursuant to 40 CFR 122.4(d)(1), an anal ysis of the project’ s reasonable potential to cause or contribute to an impairment of the aquatic life use as described in West Virginia’s narrative water quality criteria and does not include controls (or even monitoring) for TDS/conductivity. The Corps also did not consider whether the Section 401 certification for Spruce No. 1 considered TDS nor did the Corps consider data showing increased levels of conductivity dow nstream of the Dal-Tex operation and other

mines.

Data from operations at the project site show that the pr oject is likely to discharge selenium at levels above West Virginia’s ch ronic exposure water quali ty criterion. That

40information was not available to and ther efore was not consider ed by the Corps or

WVDEP.

In addition, the Corps and WVDEP did not consid er the potential for discharges from the Spruce No. 1 project to contri bute to conditions that coul d potentially support golden algae blooms as described in this proposed determination.

V. PROPOSED DETERMINATION

The Regional Administrator proposes to recomme nd that the discharge of dredged 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 No. 199800436-3 (Section 10: Coal River) be pr ohibited or restricted. Base d on current information, the Regional Administrator has reason to believe that the Spruce No. 1 Surface Mine as currently authorized could result in unaccepta ble adverse impacts and that these adverse impacts can be reduced or avoided through a ppropriate modification of the project.

This proposed determination is based on unacceptable adverse impacts to wildlife pursuant to Section 404(c). EPA has reason to believe the project as currently authorized

would cause or contribute to si gnificant degradation of waters of the United States and violate the Section 404(b)(1) Guidelines. There will be discharge of excess spoil and construction of valley fills that will bury headwater streams. Wildlife that live in those streams or within the footprint of the valley fills will be buried. Other wildlife will lose important habitat on which they depend for all or part of their lif ecycles. The streams

and wildlife that will be buried cannot be vi ewed in a vacuum. When those streams and wildlife are buried, there will be effects to downstream waters and downstream wildlife caused by the removal of functions perf ormed by the buried resources and by

transformation of the buried areas into s ources that may contribute pollutants to downstream waters. In addition, the project could contribute to conditions that would support blooms of golden algae that release toxins that can kill fish and other aquatic life.

There also will be an effect fr om deforestation of the project site on terrestrial wildlife. In addition, impacts from the project coul d contribute to cumulative impacts from multiple surface mining activities in the Coal River sub-basin.

VI. Other Considerations

A. Environmental Justice

Environmental Justice is the fair treatmen t and meaningful invol vement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environm ental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation. In this case these goals are promoted through the requirement that al l agencies of the Federal government shall include an analysis of environmental justi ce issues when considering the impacts related to the Spruce No. 1 project. Although the Spruce No. 1 Draft EIS contained some

41information regarding environm ental justice, EPA remains concerned that these issues were not adequately addre ssed in the Final EIS.

Spruce No. 1 is located in a Census block group where the per capita income is roughly half that of the national average and $6,000 less than the West Virginia state average. Moreover, 24% of the residents of Logan County live below the poverty line which also exceeds state and national averages. Accordi ngly, additional analysis of the potential for disproportionately high and adverse effects on these low-income populations needs to be

conducted.

Specifically, a characterization of the economic status of residents near the site and the conditions they face including any effects relati ng to the proximity of the blasting zone, locations of discharges of fill material, truck traffic, noise, fugitive dust, and habitat loss

needs to be conducted. Additiona l consideration must also be given to these activities’ potential impacts on subsistence fishing, hunti ng, foraging and gardening in the area. Additional information is needed concerning sources of drinking water for the affected populations (including municipa l water supplies and privat e sources of drinking water including streams and/or wells).

Furthermore, the cultural implications of mountaintop mining must not be ignored. The mountains being affected by Spruce No. 1 are considered a cultural resource by many

residents. The mountains influence residents’ daily lives and in ma ny cases have helped define Appalachian society. Removing th em may have profound cultural changes on area residents, so it is important that cultural impacts be considered as well.

It is important that consideration be given as to whether these impacts will range over a broad area or will be concentrated in part icular areas. Detailed maps outlining the

residential areas in relation to these activities may help in conducting this evaluation. It is also important that the effects be consid ered both independently and cumulatively. Considering the effects cumulatively provides th e most realistic “snapshot” of what the community will be facing when the project reaches fruition. Having this information readily available will help engage the a ffected communities during public outreach and ensure that they can be meaningfully involved.

B. Cumulative Effects

The Clean Water Act Section 404(b)(1) Guidelin es require that “no discharge of dredged or fill material shall be permitted if it causes or contributes, after consideration of disposal site dilution and di spersion, to violation of any applicable State water quality standard.” In addition, the Guidelines prohibit any discharge of dredged or fill material that would cause or contribute to significant degradation of the aquatic ecosystem, with special emphasis placed on the persistence a nd permanence of effects, both individually

and cumulatively . Cumulative impacts are “the imp act on the environment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions, regardle ss of what agency or person undertakes such other actions.” (40 CFR 1508.7) Individual adverse imp acts from an action may be

42insignificant individually, but may accumulate over time from one or more origins and collectively result in significant adverse impacts that degrade important natural resources. The cumulative impacts of a particular action can be viewed as the total effects on natural resources (including wildlife), socioeconom ic resources, human health, recreation, quality of life aspects, and cu ltural and historical resources of that action and all other activities affecting those resources, com pounding the effects of all actions over time. Surface mining of coal has the potential to cumulatively impact natural resources, both aquatic and terrestrial. In the West Virginia portion of the PEIS study area, the projected loss of riparian habitat from MTM/VF is 30.72 km 2 , 3.2% of the baseline. Approximately 42% of these projected losses occur in headwater (f irst and second-order)

streams.

As currently authorized, th e Spruce No. 1 project is one of the largest mountaintop mining projects authorized in West Virginia. The project would directly impact nearly

seven and one-half miles of valuable headwa ter streams, and would indirectly impact Spruce Fork and potentially other downstream wa ters in the Coal River Sub-basin. These indirect impacts can include but are not limited to discharges of pollutants from the valley fills, such as total dissolved solids (TDS) and selenium and removal of freshwater dilution currently being provided by Pigeonr oost Branch and Oldhouse Branch.

Spruce No. 1 project lies within the Little Coal River watershed within the Coal River

sub-basin. The Little Coal wa tershed contains 98 miles of impaired streams, representing 33% of the streams in the watershed, and the Coal River sub-basin has 743 miles of impaired streams, representing 30% of the streams in the sub- basin. Stream segments are listed for selenium and biological impairment by WVDEP, indicating that the relationship between mining and watershe d quality is strong.

In addition to impacts from discharges and removal of riparian habitat and sources of freshwater dilution, there also wi ll be an adverse effect from deforestation of the project site on terrestrial wildlife. Approximate ly 2,278 acres of deciduous forest will be destroyed by the Spruce No. 1 Mine. Forest s like these in Appala chia support some of the highest biodiversity in North America and are unique in its expansiveness. In its natural condition, the Ap palachian landscape is dominated by interior forest. A decrease in forest cover by mining followed by conversion to grasslands or other less valuable land cover has the potential to sh ift the fauna of the region from that found in intact, high elevation forests to one dominated by grassland and edge dwelling species.

Numerous studies have demonstrated that the region is losing forest, especially ecologically valuable interior forest, at a significant pace due largely to surface mining operations. Studies conducted in connection w ith the PEIS concluded that surface mining had deforested 1,540 km 2 or 380,542 ac (3.4%) of the study area during the 10 years between 1992 and 2002. An estimated 5,700 km 2 or 1,408,500 ac (11.5%) of the PEIS study area was projected to be deforested by 2012, an area 1.4 times the size of the state

of Rhode Island. A 3-fold increase has b een shown in acres classified as “surface mining/quarries/gravel pits indi cating a degrading la nd-use change at the expense of the

natural condition of the area.

43Because of fragmentation of forests by mountai ntop mining activities, the area of interior forest lost was 1.75–5.0 times greater than the direct forest lost between 1992 and 2001. Such an increase in habitat fragmentation ha s the potential to isol ate natural populations, reduce population sizes, reduce gene flow, increase the risk of extirpation or extinction of rare species, and increase the rate of inva sion by exotic species, especially plants. Fragmentation of the terrestrial environmen t due to mining, projected from land cover data in the West Virginia Gap Analysis Program (GAP) and the permit rates observed during the 10 years preceding the pu blication of the PEIS, indicates:

• 40% increase in the number of isol ated forest habitat fragments

• 41% decrease in the average size of ha bitat fragments from 24.64 to 14.3 acres

• 2.7% increase in the amount of edge hab itat, caused by fragmentation of interior

forests

The Spruce No. 1 project will destroy approxi mately 2,278 acres of functional deciduous forests replacing it with gra sslands or other land cover. According to WVDEP Division of Mining and Reclamation (D MR) 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 co llectively occupy more than 33 % of the land area. From 1992 to 2009 forest coverage decreased from a pproximately 73% to 61% and can be expected to decrease to 53 % of the sub-watershed in the reasonably foreseeable future. Additionally, other sub-wa tersheds in the Coal River sub-basin have

more than 55% of the land o ccupied by surface mine permits.

Within the Coal River sub-basin there are mo re than 257 past and present surface mining permits issued which collectively occupy more than 13% of the land area. Furthermore,

EPA is aware of at least 11 additional mini ng operations either proposed or authorized

but not constructed in addition to Spruce No.1 in the Coal River sub-basin. The Spruce No. 1 proposal along with these 11 additional projects in the Coal River Sub-basin, if constructed as proposed, would impact appr oximately 29.4 miles of stream channels resulting in potential impairment to more streams in the Coal River sub-basin.

Trend analysis indicates mountaintop mining a nd valley fills as a percentage of the land

cover will continue to increase in the Coal River sub-basin and forest area will continue

to decrease as a result. These 11 additional projects, if constructed, have not been assessed and factored in the regulatory decisi on-making for Spruce No. 1 in terms of their cumulative affects on water quality, aquatic, and forest resources of the region. EPA believes that the Spruce No. 1 project, in conjunction with the nu merous other mining operations either under construction or propos ed for the Coal Ri ver sub-basin, will contribute to the cumulative loss of water qual ity, aquatic and forest resources. The Coal River sub-basin is already heavily mined and substantially impaired. Landscape and site specific assessments reveal that past and current mountaint op mining has caused substantial, irreplaceable loss of resources and an irreversible effect on these resources

within the Coal River sub-basin.

44At the sub-basin level, surface mining of coal has the potential to cumulatively impact natural resources, bot h aquatic and terrestrial, and the number of mining operations, permitted or proposed, in the Coal River waters hed have the potential to have significant cumulative effects on the aquatic ecosystem as described above. The cumulative effects of these operations in the Coal River sub- basin and its contributing watersheds have resulted in many miles of headwater str eam destruction, downstream water quality degradation, and the destruction and frag mentation of many acre s of productive and functional forests. EPA believes these impa cts have not been sufficiently acknowledged or analyzed by the permittee or the Corp s of Engineers for this project.

Additional data from the PEIS’s Landscap e-Scale Cumulative Impact Study modeled terrestrial impacts based on past surface mine permit data. These data suggest that for the entire 22-year period from 1992 to 2013, the es timated forest clearing in the study area would be 1,189 square miles (761,000 acres). Should these forests not be adequately restored, invaluable water quality and ecologi cal services will be permanently lost.

Forest losses of this magnitude, although largel y temporary (on the scale of decades), are not inconsequential. In add ition to the popularly appreciate d wildlife, recreational, and

timber resources associated with forests systems; many ecological services can be attributed to forest systems. We are ju st beginning to understand and assign value to these ecological services. Fo r example, forests are known to be natural areas of carbon sequestration. The cumulative loss of 1,189 s quare miles of forest would conservatively equate to the loss of 1.7M tons of carbon dioxi de sequestration potenti al per year or the equivalent of taking 300,000 cars off the roa d. Additionally, forests dampen flooding potential and act as natural nutrient sinks. One study estimates that forest cover of 1,189 square miles cumulatively provides appr oximately $138 million in aquatic nutrientcycling and waste treatment services.

VII. SOLICITATION OF COMMENTS

EPA today is soliciting comments on all issues di scussed in this notice. In particular, we

request:

(1) Additional information on the likely adverse impacts to fish and values of the receiving waters that will be directly (R ight Fork of Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch) or indirectly affected (Spruce Fork, Little Coal River, Coal River) by the Spruce No. 1 Surface Mine as currently authorized in DA Permit No. 199800436-3 (Section 10: Coal River).

(2) Additional information pertaining to th e water quality, flora, fauna and hydrology of

the waters identified in no. 1 above, and information on the fish and wildlife species which would be affected by changes in th e aquatic ecosystem if the project is

constructed.

45

### (3) Additional information about drinking water (including municipal water supplies and private sources of drinking water including streams and/or wells).

(4) Additional information about recreational uses of the project area and how they

would be 

### impacted if the project were constructed.

(5) Additional information on the potential for**mitig~tion** 

### to reduce the impacts of the project. "

(6) Additional information describing the**kno~** 

### or potential cumulative impacts to
human health and the environment within the Coal River sub-basin and the Spruce Fork

sub-watershed.

(7) 

### Consistent with Executive Order 12898, information about low-income and minority populations likely to be affected by the Spruce No. 1 Surface Mine and the disproportionately high adverse human health or environmental effects, if any, on these populations if EPA makes a final determination to rescind the proposed determiilation or

to prohibit or restrict the use of Seng Camp Creek, Pigeonroost Branch and Oldhouse

Branch as disposal sites for dredged or fill material in connection with the project.

(8) During the course of the past year, various techniques have been identified to or by

EPA as means by which impacts from this project or other similar projects may be

reduced to'an acceptable ievel. As 

### indicated in EPA's letter dated October 16,2009,

EPA has 

### not ruled out the possibility that this project may be modified in a way that will

address the environmental impacts described herein. Accordingly, in addition to the information sought in items 1-7 above, EPA. is seeking comment on potential techniques

to reduce or mitigate the environmental impacts described herein.

(9) Whether the discharge should be permanently prohibited, allowed as authorized by

the Corps, or restricted in time, size or other "manner.

All relevant data, 

### studies, knowledge of studies, or informal observations are appropriate.

The record will remain open for comment untii {inserted by Federal Register: date 60 days from FR publication}. 

### All comments will be fully considered in reaching a decision to either rescind the proposed determination or forward to EPA Headquarters a recommended determination to prohibit or restrict the discharge of dredged or fill

material into Pigeonroost Branch and Oldhouse 

# Mj, Branch in connection with construction

and operation of Spruce No. 1 Surface

Shawn M. Garvin

- Regional

# Admini 

# 11. (U<N'\

# JJ~ ( 

# 1 

# n1

MAR 2 6 2010

Billing Code 6560-50-P

46