16788 Federal Register / Vol. 75, No. 63 / Friday, April 2, 2010 / Notices 

metals and sulfates. The project will 

also have significant wetland impacts 

that are not adequately mitigated. In 

addition, the EIS does not adequately 

evaluate the fate and transport of 

pollutants between groundwater, 

surface water and wetlands, nor does it 

discuss financial assurance for closure 

and post-closure care. Rating EU3. 

EIS No. 20090411, ERP No. D–BLM– 

K65383–CA, Clear Creek Management 

Area Resource Management Plan 

(RMP), Implementation, Portion of 

San Benito County and Fresno 

County, CA. 

Summary: EPA does not object to the 

proposed project because it will help 

protect human health and safety and 

significantly improve environmental 

resources in the project area. Rating LO. 

EIS No. 20090451, ERP No. D–FHW– 

F40451–FL, St. Johns River Crossing 

Project, Improved Highway Corridor 

and Bridge Crossing the St. John River 

between Clay and St. Johns Counties, 

FL. 

Summary: EPA expressed 

environmental objections about 

significant wetland and habitat resource 

impacts. EPA also had concerns about 

air quality, noise, surface water and 

floodplain impacts. Rating EO2. 

EIS No. 20100017, ERP No. D–NOA– 

L91035–00, Amendment 21 to the 

Pacific Coast Groundfish Fishery 

Management Plan, (FMP), Allocation 

of Harvest Opportunity between 

Sectors, Implementation, WA, OR and 

CA. 

Summary: EPA does not object to the 

proposed action. Rating LO. 

EIS No. 20100027, ERP No. D–AFS– 

K65384–CA, Big Grizzly Fuels 

Reduction and Forest Health Project, 

Proposes Vegetation Treatments, 

Eldorado National Forest, Georgetown 

Ranger District, Georgetown, CA. 

Summary: EPA expressed 

environmental concerns about air 

quality impacts and requested a 

commitment to implement BMPs. 

Rating EC2. 

Final EISs 

EIS No. 20100019, ERP No. F–DOE– 

C06012–NY, West Valley 

Demonstration Project and Western 

New York Nuclear Service Center 

Decommissioning and/or Long-Term 

Stewardship, (DOE/EIS–0226–D 

Revised) City of Buffalo, Eric and 

Cattaraugus Counties, NY. 

Summary: While EPA has no 

objection with the proposed action, EPA 

indicated that Phase 2 actions and 

NEPA documentation will be 

reevaluated at the end of Phase 1. 

EIS No. 20100036, ERP No. F–IBR– 

K65382–CA, New Melones Lakes Area 

Resource Management Plan, 

Implementation, Tuolumne and 

Calaveras Counties, CA. 

Summary: No comment letter was 

sent to the preparing agency. 

EIS No. 20100039, ERP No. F–WAP– 

K08017–00, ADOPTION—Southwest 

Intertie Project, Construction and 

Operation, 500kV Transmission Line 

from the existing Midpoint substation 

near Shoshone, ID to a new substation 

site in the Dry Lake Valley of Las 

Vegas, NV area to a point near Delta, 

UT, Permits Approval and C. 

Summary: No comment letter was 

sent to the preparing agency. 

EIS No. 20100041, ERP No. F–FHW– 

F40379–MI, US–31 Holland to Grand 

Haven Project, Transportation 

Improvement to Reduce Traffic 

Congestion and Delay, Ottawa 

County, MI. 

Summary: EPA’s previous issues have 

been resolved; therefore, EPA does not 

object to the proposed action. 

EIS No. 20100042, ERP No. F–COE– 

K39121–CA, Natomas Levee 

Improvement Program Phase 4a 

Landside Improvement Project, 

Issuing of 408 Permission and 404 

Permits, California Department of 

Water Resources (DWR) and the 

California Central Valley Flood 

Protection Board, Sutter and 

Sacramento Counties, CA. 

Summary: EPA continues to have 

environmental concerns about flood risk 

impacts and the need for a PM 2.5 

modeling assessment and a general 

conformity determination. 

EIS No. 20100044, ERP No. F–AFS– 

K65368–CA, Lower Trinity and Mad 

River Motorized Travel Management, 

Proposed to Prohibit Cross-County 

Motor Vehicle Travel Off Designated 

National Forest Transportation 

System (NFTS) Roads and Motorized 

Trails, Six River National Forest, CA. 

Summary: EPA continues to have 

environmental concerns about the scope 

of the travel management planning 

process and routes proposed in 

impaired watersheds. EPA 

recommended the action include 

current roads and trails with known 

impacts and a thorough evaluation of all 

impacts to water resources. 

EIS No. 20100058, ERP No. F–FHW– 

F40445–IN, I–69 Evansville to 

Indianapolis, Indiana Project, Section 

2, Revised to Update the Stream 

Impacts, Oakland City to Washington, 

(IN–64 to US 50), Gibson, Pike and 

Daviess Counties, IN. 

Summary: EPA’s previous issues have 

been resolved; therefore, EPA does not 

object to the proposed action. 

Dated: March 30, 2010. 

Robert W. Hargrove, 

Director, NEPA Compliance Division, Office 

of Federal Activities. 

[FR Doc. 2010–7504 Filed 4–1–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–R03–OW–2009–0985; FRL–9133–4] 

Proposed Determination To Prohibit, 

Restrict, 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, WV 

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, Pigeonroost 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 ensure our environment and public 

health are protected and restored for 

current and future generations. Among 

ways that EPA carries out its mission is 

by ensuring appropriate implementation 

of the Clean Water Act. Section 404(c) 

of the Clean Water Act (CWA) 

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 

specification (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 such sites 

to receive dredged and/or fill material 

would have an unacceptable adverse 

impact on various resources, including 

fisheries, wildlife, municipal water 

supplies, and recreational areas. This 

authority is often referred to as EPA’s 

authority to ‘‘veto’’ 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 

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Federal Register / Vol. 75, No. 63 / Friday, April 2, 2010 / Notices 16789 

with this project, Mingo Logan Coal 

Company (permittee) has been 

authorized by the U.S. Army Corps of 

Engineers, Huntington 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 (not 

yet constructed), Oldhouse Branch (not 

yet constructed), and certain tributaries 

to those waters by discharging excess 

overburden (or spoil) generated by 

surface coal mining operations. The 

project as authorized will directly 

impact 2,278 acres, including more than 

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 action 

because it believes, despite all the 

regulatory processes intended to protect 

the environment, that construction of 

Spruce No. 1 Mine as authorized would 

destroy streams and habitat, cause 

significant degradation of on-site and 

downstream water quality, and could 

therefore result in unacceptable adverse 

impacts to wildlife and fishery 

resources. These impacts are described 

in more detail in Section IV below. 

The goal of protecting water quality, 

plant and animal habitat, navigable 

waterways, and other downstream 

resources requires the careful protection 

of headwater streams and life they 

support. These streams are like the 

capillaries 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 degradation 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 drainage, 

recent studies and experience point to 

new environmental and health 

challenges that were largely 

unconsidered until more recently. We 

know the 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 

types of impacts as those anticipated 

from this project have had previously 

unforeseen environmental 

consequences. 

Public health issues surrounding the 

types of impacts associated with the 

Spruce No. 1 project are not well 

understood. EPA has been presented 

with household-specific and anecdotal 

information that suggests individual and 

possibly public surface water and 

ground water supplies could be 

adversely impacted by surface coal 

mining activities. In addition, recent 

published studies directly relate 

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 and decide to use its 

discretion to prohibit any discharges 

from the project, including the 

construction of valley fills; (2) EPA 

could restrict specification of the site as 

a disposal site and decide the project 

cannot go forward under the permit as 

currently issued, 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, Pigeonroost Branch, 

Oldhouse Branch, and their tributaries 

in Logan County, West Virginia, to 

receive dredged or fill material in 

connection with construction of the 

Spruce No. 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 June 1, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No EPA–R03– 

OW–2009–0985, by one of the following 

methods: 

1. Federal eRulemaking Portal 

(recommended method of comment 

submission): http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

2. E-mail: owdocket@epamail.epa.gov. Include the 

docket number, EPA–R03–OW–2009– 

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. 

Environmental Protection Agency, 

3EA30 Region III; 1650 Arch Street, 

SW.; Philadelphia, Pennsylvania 19103. 

Such deliveries are accepted 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 

Docket ID No. EPA–R03–OW–2009– 

0985. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment 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 Web site 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 comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address 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 electronic comment, EPA 

recommends 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 characters, 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 

electronic docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

mstockstill on DSKH9S0YB1PROD with NOTICES

16790 Federal Register / Vol. 75, No. 63 / Friday, April 2, 2010 / Notices 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in 

http://www.regulations.gov or in hard 

copy at the Office of Environmental 

Programs; Environmental Assessment 

and Innovation Division; U.S. 

Environmental Protection Agency, 

Region III; 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. EPA 

requests that if at all 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 regulations 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 Register 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, 

contact the Office of Environmental 

Programs; Environmental Assessment 

and Innovation Division; U.S. 

Environmental Protection Agency, 

Region III; 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. The 

telephone number is 215–814–2760. 

The Office can also 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 would be 

impacted by the project as authorized. 

The supplementary information is 

arranged as follows: 

I. Section 404(C) Procedure 

II. Project Description and Background 

A. Project History 

B. Project Description 

III. Characteristics and Functions of the 

Impacted Resources 

A. Watershed and Stream Conditions 

1. The Coal River Sub-basin 

2. The Spruce Fork Sub-watershed 

B. 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 Conditions 

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 

I. 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 Army, acting through 

the Chief of Engineers (Corps), to 

authorize the discharge of dredged or 

fill material at specified disposal sites. 

This authorization is conducted, in part, 

through application of environmental 

guidelines set forth in regulations 

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 area for specification 

(including withdrawal of specification) 

as a disposal site, whenever it 

determines, after notice and opportunity 

for public hearing, that the discharge of 

such materials into any 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 Regional 

Administrator has reason to believe that 

use of a site for discharge of dredged or 

fill material may have 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 applicant/ 

permittee (and/or project proponent and 

landowner(s)) that he intends to issue a 

proposed determination. Each of those 

parties 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 

satisfied that no unacceptable adverse 

effect will occur, the Regional 

Administrator will publish a notice in 

the Federal Register of his proposed 

determination, soliciting public 

comment, and offering 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 withdraw his proposed 

determination or prepare a 

recommended determination. A 

decision to withdraw a proposed 

determination 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 

compiled in the Regional Office to the 

Assistant Administrator for Water. The 

Assistant Administrator makes the final 

determination affirming, modifying, or 

rescinding the recommended 

determination. 

EPA Region III recognizes this action 

represents one of the few times EPA has 

initiated a Section 404(c) action to 

withdraw specification after a permit 

has been issued by the Department of 

the Army. It is EPA’s preference to 

initiate procedures pursuant to Section 

404(c) prior to permit issuance. 

Nevertheless, Section 404(c) authorizes 

EPA to withdraw use of a defined area 

for specification, and therefore, EPA has 

the ability to initiate a Section 404(c) 

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Federal Register / Vol. 75, No. 63 / Friday, April 2, 2010 / Notices 16791 

action after permit issuance. As set forth 

in the Preamble to EPA’s implementing 

regulations, EPA recognizes 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 commensurate seriousness. In 

addition, EPA recognizes that a portion 

of the project located in the Seng Camp 

Creek subwatershed already has been 

constructed pursuant to the permit 

issued by the Department 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 used 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 currently authorized by DA Permit 

No. 199800436–3 (Section 10: Coal 

River), is one of the largest mountaintop 

mining projects ever authorized in West 

Virginia and includes six 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 responsibilities to its 

Mingo Logan Coal Company (Mingo 

Logan) subsidiary. The project as 

originally proposed in 1998, would have 

directly impacted a total footprint area 

of 3,113 acres and 57,755 linear feet 

(more than ten miles) of stream (not 

including indirect impacts to remaining 

downstream waters). At that time, the 

Corps approved the project under a 

nationwide permit, which was 

subsequently enjoined by a federal 

district court. As a consequence of that 

action, the Corps retracted the 

previously proffered nationwide permit 

for the project, and the permittee, Mingo 

Logan, advised the Corps it would 

submit an individual permit 

application. Because the decision 

whether to issue the permit was a major 

federal action with potential to 

significantly affect the quality of the 

human environment, an Environmental 

Impact Statement (EIS) was prepared for 

the Spruce No. 1 project by the Army 

Corps of Engineers Huntington District 

pursuant to the National Environmental 

Policy Act, 42 U.S.C. 4332(C). The 

original project application also 

launched events that led to the 

Interagency Mountaintop Mining/Valley 

Fills in Appalachia Programmatic EIS 

which was finalized in October 2005 

(PEIS). The PEIS is available at http:// 

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 

agency, 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 analyses contained in the EIS, as 

needed to support this objective. The 

initial 2002 Spruce No. 1 Draft EIS 

evaluated a project similar in scope and 

size to the original project. EPA’s review 

of the 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 recommended 

additional evaluation to support the 

analysis of less environmentally 

damaging alternatives. EPA Region III, 

in a letter dated August 12, 2002, 

indicated the EIS contained inadequate 

information for public review and 

decision-makers. 

Partly as a result of EPA’s concerns, 

a revised 2006 Spruce No. 1 Draft EIS 

was prepared and the project was 

reconfigured to reduce 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 approximately 

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 Spruce 

No. 1 Mine, including potential adverse 

impacts to water quality (specifically, 

the potential to discharge selenium and 

the known correlation between similar 

mining operations and degradation of 

downstream aquatic communities), 

uncertainties regarding the proposed 

mitigation, need for additional analysis 

of potential environmental justice 

issues, and lack of study related to the 

cumulative impact of multiple mining 

operations within the Little Coal River 

watershed. EPA continued to stress its 

belief that corrective measures should 

be required to reduce environmental 

impacts and that other identified 

information, data, and analyses should 

be included in the final EIS. 

Concerns regarding the Spruce No. 1 

project were also raised by the U.S. Fish 

and Wildlife Service (FWS), Ecological 

Services West Virginia Field Office in a 

letter dated May 30, 2006 from the 

Department of Interior, Philadelphia to 

the Huntington District Army Corps of 

Engineers. In that letter, the 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 

evaluate 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 

streams and the proposed mitigation 

included erosion control structures 

designed to convey water that would 

not replace the streams’ lost ecological 

services. 

The Corps issued the Spruce No. 1 

Final EIS on September 22, 2006. On 

October 23, 2006, EPA commented on 

the Final EIS, noting continuing 

concerns with the proposed project’s 

contribution to cumulative impacts 

within 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 

work with Mingo Logan through EPA’s 

Conflict Prevention and Resolution 

Center to develop a cumulative impact 

assessment and watershed restoration 

plan for the Little Coal River watershed. 

Despite concerns raised by EPA and 

the FWS, on January 22, 2007, the Corps 

issued a Clean Water Act § 404 Permit 

(DA Permit No. 199800436–3 (Section 

10: Coal River)) to Mingo Logan for its 

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16792 Federal Register / Vol. 75, No. 63 / Friday, April 2, 2010 / Notices 

1 In the most recent NPDES permit (WV1017021) 

issued August 8, 2007, the outfalls number up to 

28, but there are no outfalls numbered 11, 13, or 

16. 

Spruce No. 1 Mine. On January 30, 

2007, a number of environmental groups 

filed a complaint against the Corps in 

federal district court challenging its 

decision to issue the permit. That 

litigation remains pending. 

In addition to its DA Permit No. 

199800436–3 (Section 10: Coal River), 

the project received authorizations from 

the West Virginia 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 National 

Pollutant Discharge Elimination System 

(NPDES) permit for discharges of 

pollutants from 251 outfalls pursuant to 

Section 402 of the Clean Water Act, 33 

U.S.C. 1342. 

In early 2007, Mingo Logan 

commenced limited operations on 

Spruce No. 1 pursuant to DA Permit No. 

199800436–3 (Section 10: Coal River) 

subject to an agreement with the 

environmental groups who are plaintiffs 

in the litigation. Pursuant to that 

agreement, Mingo Logan has been 

operating in a portion of the project in 

the Seng Camp Creek drainage area, 

including construction of one valley fill. 

Under the agreement, Mingo Logan 

must give plaintiffs 20 days’ notice 

before expanding operations beyond the 

area subject to the agreement, and has 

done so once without objection from the 

plaintiffs. 

B. Project Description 

The project as authorized is located in 

the East District of Logan County, West 

Virginia at Latitude 38°52′39′′ and 

Longitude 81°47′52′′ depicted on the 

United States Geological Survey 7.5- 

minute Clothier and 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 Branch, 

and several of their unnamed tributaries 

(hereafter, references to Seng Camp 

Creek, Pigeonroost Branch, and 

Oldhouse Branch also include all 

tributaries to those waters that would be 

impacted by the project as authorized). 

Streams on-site exhibit surface water 

connections to Spruce Fork of the Little 

Coal River, which ultimately flows into 

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 mined 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 million 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 valley fills. The 

proposed Spruce No. 1 Mine would 

result in the discharge of approximately 

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 

No. 1 project is a mountaintop mining 

project targeting bituminous coal seams 

overlying and including the Middle 

Coalburg coal seam in the western 

portion of the 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 

mining in conjunction with auger and/ 

or highwall/thin-seam mining utilized 

to recover the Middle Coalburg seam. 

The project would disturb a total of 

2,278 acres and recover seventy-five 

percent (75%) of the coal reserve 

targeted for extraction within the project 

area during fifteen (15) phases. The 

applicant describes its proposal as 

placing dredged and fill material into 

approximately 0.12 acre of emergent 

wetland, 10,630 linear feet (1.83 acres) 

of ephemeral stream channels (all 

permanent), and 28,698 linear feet (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, operation 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 from the 

Spruce No. 1 EIS is set forth here for 

descriptive purposes. 

Including operations being conducted 

in the Seng Camp Creek area (including 

construction of Fill 1A), the mining plan 

is described in the Spruce No. 1 EIS as 

a fifteen-phase mining and reclamation 

plan, which generally includes 

‘‘Construction’’ (Phases 1 and 2), 

‘‘Operations’’ (Phases 3–13), and 

‘‘Closure and Reclamation’’ (Phases 14– 

15). As initially proposed, the phases 

are described in the Spruce No. 1 EIS. 

DA Permit No. 199800436–3 (Section 

10: Coal River) which authorizes 

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 

Branch, 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 (CMP) 

submitted by Mingo Logan describes onsite, in-kind mitigation at a minimum 

1:1 ratio on a linear footage basis to 

compensate 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. Onsite compensation would include 

restoration of 7,132 linear feet of stream 

segments temporarily impacted by 

sedimentation ponds, and creation of 

43,565 linear feet of stream channel 

within the project area. 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 surface water flow from the 

project area in existing drainage ways to 

promote the development of more 

defined channels, thus creating 26,625 

linear feet of streams (existing, nonjurisdictional 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 Mountains Major Land Resource 

Area, which is dominated by very steep, 

rugged side slopes, 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 

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2A TMDL is a calculation of maximum amount 

of a pollutant that a waterbody can receive and still 

meet water quality standards 

tributaries. These on-site streams are 

tributaries of and exhibit surface water 

connections to Spruce Fork of the Little 

Coal River, which ultimately flows into 

the Coal River. 

The following subsections describe 

the characteristics and functions of the 

resources that could be impacted if the 

Spruce No. 1 Mine is constructed as 

currently 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 watershed and stream 

conditions and wildlife in separate 

sections, it is important to remember 

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 

potentially impacted resources and the 

predicted impacts of the project from 

several sources. The Draft (June 2003) 

and Final (October 2005) Interagency 

Mountaintop Mining/Valley Fills in 

Appalachia Programmatic EIS (PEIS) 

represent an important inter-agency 

effort designed to inform more 

environmentally sound decision-making 

for future permitting of mountaintop 

mining/valley fills. It had a geographic 

focus of 12 million acres encompassing 

most of eastern Kentucky, southern 

West Virginia, western Virginia, and 

scattered areas of eastern Tennessee, 

and included the Spruce No. 1 project 

area and the Coal River sub-basin. EPA 

also consulted information gathered by 

the WVDEP, including an assessment of 

the Coal River sub-basin conducted in 

1997, data collected to support the 2006 

Coal River sub-basin total maximum 

daily load (TMDL),2 and WVDEP and 

nationally available GIS data. EPA also 

reviewed the 2006 Spruce No.1 EIS, and 

other sources of data including studies 

conducted by EPA scientists and 

discharge monitoring reports generated 

by Mingo Logan. In addition, EPA 

consulted a wide range of peer-reviewed 

studies and literature. A Technical 

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 project area is 

located in the unglaciated portion of the 

Appalachian Plateau physiographic 

province of West Virginia. The 

Appalachian Plateau province is where 

the majority of the mineable coal in WV 

is located. The specific project area is 

located within the upper headwaters of 

the Spruce Fork of the Little Coal River 

Watershed, which is a tributary 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 populations that are 

utilized by the public. The Coal River 

Sub-basin has 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 (NLCD) change product 

for 1992–2001 and WVDEP’s GIS 

mining files, more than 257 past and 

present surface mining permits have 

been issued in the Coal River sub-basin, 

which collectively occupy more than 

13% of the land area. Some subwatersheds in the Coal River sub-basin 

have more than 55% of the land 

occupied by surface mine permits. 

Trend 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 watershed health when it 

performs an ecological assessment: 

water quality, habitat condition, and 

benthic macroinvertebrate community 

status. The subsequent report, An 

Ecological Assessment of the Coal River 

Watershed (1997), indicated that 

sediments, coal mining and inadequate 

sewage treatment were the major 

stressors on streams in this watershed. 

As a result of that assessment WVDEP 

identified as a priority the need to 

‘‘[l]ocate 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 Pond Fork) had 

a higher rate of impairment (defined as 

failure to achieve compliance with 

water quality standards, including the 

aquatic life use and narrative criteria) 

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 other 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 Spruce 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 

Branch, all of which are tributaries of 

and flow to Spruce Fork. Spruce Fork is 

a fourth 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 and drains approximately 

126.4 square miles. The dominant 

landuse in the Spruce Fork watershed is 

forest. Other important landuse types 

include urban/residential and barren/ 

mining land. The Spruce Fork 

watershed lies entirely within the 

Central Appalachian Ecoregion. This 

ecoregion is more rugged and forested 

and is cooler than the Western 

Allegheny Plateau Ecoregion to the 

north. Extraction of coal, oil, and 

natural gas is common and has degraded 

stream habitat in much of this 

ecoregion. However, some small streams 

disturbed by past logging or ongoing oil/ 

gas extraction, such as those located in 

and around the Spruce 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 impacted by past and present 

surface mining activity. According to 

WVDEP Division of Mining and 

Reclamation (DMR) permit maps, within 

the Headwaters Spruce Fork 

subwatershed there are more than 34 

past and present surface mine permits 

issued which collectively occupy more 

than 33% of the land area. Trend 

analysis indicates mountaintop mining 

and valley fills as a percentage of the 

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3According 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. 

land cover will continue to increase in 

the Headwaters Spruce Fork subwatershed 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 subwatershed in the reasonably foreseeable 

future. 

The EPA sampled several streams 

within the Spruce Fork sub-watershed 

for the previously referenced 

interagency PEIS. The results of the 

PEIS studies indicate that the streams 

within and near the project area are 

currently good quality streams based on 

the benthic macroinvertebrate and water 

quality data. 

Focusing on the Spruce No. 1 project 

area, the 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 

high quality designation. WVDEP has, 

in fact, adopted White Oak Branch as a 

reference site and 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). Using the West Virginia Stream 

Condition Index (WVSCI), an 

assessment method developed for use in 

West Virginia to help evaluate the 

health of benthic macroinvertebrate 

communities at the family level in 

wadeable streams, both Oldhouse 

Branch and White Oak Branch scored 

comparably well, meaning that both 

were of similar quality and supporting 

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) indicating a diverse and healthy 

aquatic community in Oldhouse Branch 

similar to the high quality communities 

of White Oak Branch. 

Pigeonroost Branch, which also 

would be filled 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 high 

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 functioning streams 

supporting healthy aquatic 

communities. By way of comparison, 

Oldhouse 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 No. 1 

Mine. The 2006 and 2008 WVDEP 

303(d) lists of impaired waters3 and the 

2006 TMDL report for the Coal River 

sub-basin indicate that several streams 

in the Spruce Fork watershed 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, are 

impacted by the Mingo Logan Dal-Tex 

Mining Operation. Spruce Fork itself, 

which will receive discharges flowing 

from the Spruce No. 1 project, is already 

listed as impaired 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 

represent 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, aquatic 

insects, and crayfishes. Salamanders in 

particular reach their highest North 

American diversity in the Central 

Appalachian ecoregion. The area 

includes one of the most prominent 

biodiversity hot spots identified by the 

Nature Conservancy. It has been 

documented that other specialized 

wildlife such as some neotropical 

migrant birds and forest amphibians 

rely on the natural headwater stream 

condition and adjacent forest types 

exhibited by Pigeonroost Branch and 

Oldhouse Branch for maintenance of 

their populations. 

1. Invertebrates 

In a body of water, benthic 

macroinvertebrates are the bottomdwelling (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 health, 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 (fats 

and proteins) essential for the 

maintenance of healthy fish and 

amphibian populations, and for foraging 

terrestrial vertebrates such as birds, bats, 

reptiles, and small mammals. Because of 

their productivity and secondary 

position in the aquatic food chain, 

macroinvertebrates play a critical role 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 dictates the 

community structure of the resident 

aquatic life. Headwater streams harbor 

primarily benthic macroinvertebrate 

communities. In the southern 

Appalachian Mountains, 

macroinvertebrates of several orders 

including Ephemeroptera, Plecoptera 

and Trichoptera (mayflies, 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 

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assemblage has been attributed to the 

unique geological, climatological and 

hydrological features of this region. 

Macroinvertebrates are good 

indicators of watershed health and are 

used by West Virginia, states in the MidAtlantic and nationally to determine 

compliance with water quality 

standards. They are good indicators 

because they live in the water for all or 

most of their life. Macroinvertebrates 

can be found in all streams, are 

relatively stationary and cannot escape 

pollution. They also differ in their 

tolerance to the amount and types of 

pollution. Macroinvertebrate 

communities integrate the effects of 

stressors over time and some taxa (i.e., 

taxonomic category or group such as 

phylum, class, family, genus, or species) 

are considered pollution-tolerant and 

will survive in degraded conditions. 

Some taxa are pollutant-intolerant and 

will die when exposed to certain levels 

of pollution. Thus, the composition of 

communities informs scientists 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 

expect 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 

individuals from the more sensitive 

mayfly genera indicates good water 

quality conditions. 

Mayflies (Insecta: Ephemeroptera) in 

particular have long been recognized as 

important indicators of stream 

ecosystem health. Mayflies are a very 

important part of the native organisms 

in these streams. In Appalachian 

headwater streams, they routinely make 

up between 30%–50% of the insect 

assemblages in certain seasons. 

Numerous studies demonstrate that 

mayfly community structure reflects the 

chemical and physical environment of 

watercourses. 

Not only do trout rely on mayflies and 

stoneflies, but a group of colorful 

benthic fishes known as Darters 

(Percidae) feed primarily on mayflies. A 

dietary study of small stream fishes in 

the Appalachian coalfields of Kentucky 

showed that gut contents of several 

darters contained mostly mayflies. 

Darters are an important part of the fish 

assemblage and many are hosts for 

mussel larvae. Several darter species 

inhabit Spruce Fork in the immediate 

vicinity of the project area. 

Sampling data included in the PEIS, 

the Spruce No. 1 EIS and from the 

WVDEP monitoring database indicate 

that macroinvertebrates are diverse in 

the Spruce No. 1 project area. This 

diversity 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-five (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 show that collectively, 

Pigeonroost, Seng Camp, and Oldhouse 

Branch contain a high number of 

sensitive mayfly genera and individuals. 

A total of 21 genera have been identified 

from these three headwater streams, 

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 unique to the permit 

area (those few genera shared with 

Spruce Fork are moderately pollutiontolerant 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 that the Spruce 

No. 1 Mine may eradicate most of the 

species currently occupying the project 

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 

ecosystems. 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 all of Central 

Appalachia had more stonefly genera 

than Oldhouse within a single sampling 

event. 

Based on this information, the 

headwater streams draining the 

proposed Spruce No. 1 project area 

appear to contain high richness and 

abundance of sensitive 

macroinvertebrate wildlife and indicate 

a healthy aquatic ecosystem that is vital 

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 that 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 contribute to 

unacceptable degradation of this 

sensitive aquatic life and the ecosystem 

that depends on them. 

2. Vertebrates 

Two important groups of vertebrates, 

fish and salamanders, are the major 

stream-dwelling 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 are intimately 

associated with forest ecosystems 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 their lives between forests and 

headwaters and depending upon intact 

forest-headwater connections for 

movement. Typically, salamanders 

occupy small, high-gradient headwater 

streams while 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 mesophytic 

hardwood forests like those present 

within portions of the Spruce No. 1 

project 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 larval salamanders are 

estimated to occur (∼8,000/acre) in these 

same areas. 

The southern Appalachians, where 

the Spruce No. 1 project is located, have 

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one of the richest salamander fauna in 

the world. Nearly ten percent of global 

salamander diversity is found within 

streams of the southern Appalachians. 

Most of the species found in the project 

area belong to the family 

Plethodontidae, the lungless 

salamanders, which require high 

moisture retaining leaf-litter, dense 

shade, and cool flowing streams to 

survive and reproduce. 

With respect to the Spruce No. 1 

project area, salamanders have been 

surveyed in White Oak Branch. White 

Oak Branch had good numbers of 

Northern Dusky (9 adult, 7 larvae), 

Appalachian Seal (15 adult, 12 larvae), 

and Two Lined salamanders (1 adult 

and 15 larvae). 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 Branch, 

EPA would expect abundant and 

diverse salamander populations (∼5 per 

square 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 mining, 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 headwater streams like those of the 

Spruce Fork for their survival. The 

ecotone (transition area) between 

terrestrial and aquatic habitats results in 

diverse flora and fauna. For example, 

unique avifauna assemblages can be 

found along the riparian zone of 

headwater streams. The Acadian 

flycatcher (Empidonax virescens) 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 habitat 

requirements. Neotropical migrant 

songbirds are also often attracted to 

headwater streams for breeding areas 

because of the diversity of the habitat 

and the availability of emergent aquatic 

insects. 

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 

predominantly of immature and adult 

aquatic macroinvertebrates found in and 

alongside these streams and it builds its 

nest in the stream banks. Breeding 

waterthrushes nest and forage primarily 

on the ground along medium- to highgradient, first- to third-order, clear, 

perennial headwater streams flowing 

through closed-canopy forest. Good 

water quality is a key component of the 

species breeding habitat. Headwater 

streams like 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 

Conservation Region (AMBCR), which 

extends from southeastern New York 

south to northern Alabama, is thought to 

support a substantial portion of the 

Louisiana waterthrush’s breeding 

population, perhaps as much as 45 

percent. West Virginia, the only state 

that lies entirely within the AMBCR, 

encompasses the largest contiguous area 

of high relative breeding abundance 

over the species’ entire breeding range, 

based on North American Breeding Bird 

Survey (BBS) data from 1994–2003. The 

West Virginia population may serve as 

a source for populations elsewhere in 

the breeding range. The Louisiana 

waterthrush is also an area-sensitive 

species, requiring undisturbed forest 

tracts of 865 acres to sustain a 

population. The most effective 

management protocol for the Louisiana 

waterthrush would appear to be 

protection of forest tracts and water 

systems inhabited on both breeding and 

wintering areas particularly moderateto high-gradient headwater streams, 

which compose 75–80% of stream 

length in a typical watershed 

Bird species that rely on mature forest 

habitats that are on the Audubon watch 

list as declining species and are listed 

as probable in the area include the 

Swainson warbler (Limnothlypis 

swainsonii), Kentucky warbler 

(Oporornis formosus), and Cerulean 

warbler (Dendroica cerulean). The 

woodthrush was a confirmed 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 leads to 

increased nest parasitism by the brown 

headed cowbird (Molothrus ater). 

The Cerulean warbler in particular is 

considered an area-sensitive species; it 

is thought to require large (730 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-diverse canopies 

across much of the eastern United States 

and winters in middle elevations of the 

Andes Mountains of northern South 

America. Important among a number of 

breeding season constraints are the loss 

of mature deciduous forest, particularly 

along stream valleys, and fragmentation 

and increasing isolation of remaining 

mature deciduous forest. The cerulean 

warbler appears to be more sensitive 

than most other North American birds 

to landscape-level changes in habitat. 

The 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 

Mountains Bird Conservation Region, 

which encompasses West Virginia. The 

AMBCR is thought to support about 80 

percent of the species’ entire breeding 

population, and the AMBCR breeding 

population likely functions as a source 

for populations elsewhere in the 

breeding range. 

d. Bats 

Thirteen species of bats are found in 

West Virginia. Most North American 

bats are insectivorous, which capture 

their prey by foraging on the wing, 

catching flying insects from a perch, or 

collecting insects from plants. 

Different species of bats often have 

distinct life history traits and behaviors. 

Some bats are solitary and hang in tree 

foliage, attics, barns, and other protected 

places during the day. Other bats are 

colonial and cluster in caves and mine 

tunnels. Bats have one of the slowest 

reproductive rates for animals their size. 

Most bats in northeastern North 

America have only one or two pups a 

year and many females do not breed 

until their second year. This low 

reproductive rate is somewhat offset by 

a long life span, often over 20 years. The 

little brown bat, common in North 

America and in West Virginia, is the 

world’s longest lived mammal for its 

size, with a maximum life span over 32 

years. 

During the winter, some bats migrate 

south in search of food, while others 

hibernate through the cold weather 

when insects are scarce. Bats that do 

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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 described as 

once one of the most common mammals 

in the eastern United States. Between 

1960 and 2004, biologists have 

documented a 56 percent population 

decline in Indiana bats. Indiana bats 

feed solely on emerged aquatic and 

terrestrial flying insects. They are 

habitat generalists and their selection of 

prey reflects the environment in which 

they forage. In a study in the Allegheny 

Mountains, activity in non-riparian 

upland forest and forests in which 

timber harvest had occurred was low 

relative to forested riparian areas. This 

evidence suggests that the forested 

riparian zones of the project area would 

be more suitable habitats for Indiana bat 

populations than active or restored 

mining sites. 

IV. Basis for Proposed Determination 

A. Section 404(c) Standards 

The CWA requires that exercise of the 

final Section 404(c) authority be based 

on a determination of ‘‘unacceptable 

adverse effect’’ 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 EPA to initiate the Section 

404(c) process after a permit has been 

issued. 

Section 404(c) authorizes the 

Administrator ‘‘to prohibit the 

specification (including the withdrawal 

of specification) of any defined area as 

a disposal site.’’ (emphasis added). 

Section 404(b) makes clear that disposal 

sites are specified for each permit by the 

Secretary of the Army (and such 

specification 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 ‘‘withdraw specification,’’ 

40 CFR 231.2(a). 

EPA’s regulations at 40 CFR 231.2(e) 

define ‘‘unacceptable adverse effect’’ as: 

Impact on an aquatic or wetland ecosystem 

which is likely to result in significant 

degradation of municipal water supplies or 

significant loss of or damage to fisheries, 

shellfishing, or wildlife habitat or recreation 

areas. In evaluating the unacceptability of 

such impacts, consideration should be given 

to the relevant portions of the Section 

404(b)(1) Guidelines (40 CFR Part 230). 

Among other things, the Section 

404(b)(1) Guidelines require 

consideration of whether there are less 

damaging practicable alternatives to 

meet the project purpose; whether the 

project would violate other 

environmental standards, including 

applicable water quality standards; 

whether the project would cause or 

contribute to significant degradation of 

the Nation’s waters; and whether the 

project as authorized fails to adequately 

minimize and compensate for impacts 

to aquatic resources. 

Specifically, those portions of the 

Guidelines which are particularly 

important in evaluating the 

unacceptability of environmental 

impacts in this case are described below 

and further detailed in this proposed 

determination: 

• Less environmentally damaging 

practicable 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)). 

The purpose of the Clean Water Act 

is to ‘‘restore and maintain the physical, 

chemical, and biological integrity of the 

Nation’s waters.’’ 33 U.S.C. 1251(a). Part 

of the concept of protecting the 

‘‘biological integrity’’ of the Nation’s 

waters is protection of the indigenous, 

naturally occurring community. This 

goes beyond protecting the function 

performed by various members of the 

aquatic community and extends to 

protection of the quality of the aquatic 

community itself. See Alameda Water & 

Sanitation District v. EPA, 930 F. 

Supp.486 (D. Colo. 1996). 

West Virginia has defined an aquatic 

life designated use for its waters, and 

has adopted or developed numeric and 

narrative water quality standards to 

protect resident aquatic life. While 

numeric criteria help protect a water 

body from the effects of specific 

chemicals, narrative criteria protect a 

water body from the 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. Narrative criteria have 

the same effect and importance as 

numeric criteria, and interpretation of 

narrative criteria fills an important gap 

in Clean Water Act protection. See 54 

FR 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 discharge of fill 

(excess spoil and construction of valley 

fills) into headwater streams. Loss 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 nutrients) 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 algae 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 ecology of 

the Appalachian region. They are 

sources of clean, abundant water for 

larger streams and rivers and provide 

active sites for biogeochemical 

processes that support both aquatic and 

terrestrial ecosystems. The benefits of 

healthy headwaters are cumulative as 

the critical ecological 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 organic matter from 

the surrounding landscape (such as leaf 

litter) into nutrients; storing and 

retaining nutrients, organic matter, and 

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sediments; exporting water and 

nutrients downstream; and moderating 

flow rate and temperature. 

In addition, as set forth below, the 

project 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 

degradation into the downstream 

ecosystem. 

In order to predict the impacts of the 

proposed Spruce No. 1 project, EPA has 

examined impacts caused by similar 

projects both in the Coal River sub-basin 

and elsewhere, including but not 

limited to the similar and nearby Mingo 

Logan Dal-Tex operation. The impacts 

from the Spruce No. 1 Mine as 

authorized are likely to be similar to 

those caused by the Mingo Logan DalTex operation. This was acknowledged 

in the Spruce No. 1 EIS, which stated: 

‘‘The past and present impacts to 

topography, geology, and mineral 

resources of the previous mining along 

the western side of Spruce Fork are 

similar to the anticipated impacts of the 

Spruce No. 1 Mine, as mining is 

proposed to occur in the same strata.’’ 

EPA also has considered information 

related to impacts from the portions of 

the Spruce No. 1 Mine that have been 

constructed. 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 unacceptable effects on 

wildlife and fisheries. Consistent with 

the agency’s implementing regulations, 

EPA has given 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, including ecologically 

valuable aquatic organisms, will be 

buried. Loss of these types of headwater 

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 the 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 Branch and Oldhouse 

Branch as sources of freshwater dilution 

combined with potential pollutant 

discharges from the project could 

adversely affect downstream water 

chemistry, which in turn could have an 

adverse impact on aquatic and waterdependent wildlife. Associated 

disturbances caused by the project 

(clearing, road construction, etc.) may 

impact habitat and result in discharges 

that could adversely affect water 

chemistry. 

Large-scale deforestation proposed at 

Spruce No. 1 Mine may adversely affect 

habitat and result in adverse effects on 

terrestrial wildlife. Approximately 2,278 

acres of deciduous forests will be 

destroyed by the Spruce No. 1 Mine. 

Appalachian forests support some of the 

highest biodiversity in North America. 

Additionally, these forested headwaters 

are important components of the overall 

ecosystem and provide valuable 

services, such as contributing organic 

matter from coarse wood to dissolved 

organic matter, which provides 

sustenance to stream biota 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 

ecological processes for maintenance of 

their populations. 

a. Freshwater Macroinvertebrates 

As previously described, 

macroinvertebrates are 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 

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 watershed. The 

Spruce No. 1 project may adversely 

impact most 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 within this subecoregion show a 

correlation between MTM/VF activity 

and downstream patterns of extirpation 

with many of these genera. Aquatic life 

is unlikely to survive 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 

predictive purposes to consider the 

impact from similar, nearby mining 

operations. EPA compared 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 were collected from 

Pigeonroost Branch and Oldhouse 

Branch between 1999–2000, while only 

55 generally opportunistic genera were 

collected from Beech Fork and Left Fork 

Beech Fork that drain now-idled DalTex operations. This represents a 

significant loss of macroinvertebrate 

genera. In particular, the decrease in the 

number of genera and individuals from 

more sensitive genera indicates 

degrading water quality conditions. 

These conditions can be expected to 

occur in the Spruce No. 1 Mine if the 

project proceeds as authorized. 

The EPA also sampled several streams 

within the Spruce Fork watershed for 

the PEIS. Eight monitoring stations were 

established within 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 stations 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 within and 

near the project area currently support 

high quality benthic macroinvertebrate 

communities and water quality, while 

the streams located in historically 

MTM/VF mined areas are impaired 

based on the WVSCI and presence/ 

absence of indicator macroinvertebrate 

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 

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the world. Impacts from the activities 

authorized as part of the project could 

have a significant adverse impact on 

this wildlife group located within the 

project area. The Spruce No. 1 Mine will 

have significant adverse impacts on the 

salamander community either through 

direct burial, habitat degradation, or 

discharges of toxic chemicals. 

As previously stated, thirty-one (31) 

species 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 known 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 forests. 

Twice as many larval salamanders are 

estimated to occur (∼8,000/acre) in these 

same areas. 

Applying these conservative estimates 

to the Spruce 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, recent 

data from Gingerich (2009) showed that 

coal mine erosion control ditches (like 

those proposed for mitigation in the 

Spruce No. 1 permit) between three and 

20 years old had strikingly different 

amphibian communities than 

undisturbed sites. Specialist salamander 

species present in undisturbed sites 

were replaced with more generalist frog 

species on the reclaimed sites. Frogs are 

not ecological equivalents of headwater 

salamander species. The loss of 

specialist salamanders and the specific 

functions they provide, therefore, may 

result in significant adverse impacts to 

the aquatic ecosystem. 

Additional data from a USFWS study 

conducted in MTM/VF areas of the 

Appalachian mountains found 

salamander assemblages in valley-filled 

streams had lower SPAR index scores (a 

salamander index of biological integrity) 

than non-filled streams. A 2004 study 

by FWS compared the 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 larval 

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 

decline or disappear from surface mined 

areas and that certain mining mitigation 

measures do not offset these impacts. 

Because salamanders represent the main 

vertebrate predator in these headwater 

channels and will be eradicated under 

the proposed project, EPA believes that 

a key component of the aquatic food 

web will be lost from the aquatic 

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 

currently considered healthy. While fish 

are less sensitive to water chemistry 

changes with respect to TDS/ 

conductivity, it is important to ensure 

that the currently healthy fish 

assemblage 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 

valley fills in Kentucky and West 

Virginia indicate that streams affected 

by mining had significantly fewer total 

fish species and fewer benthic fish 

species than streams without mining in 

the same areas. A similar pattern of 

fewer taxa in streams affected by mining 

was observed with respect to species 

richness. 

Fulk et al. (2003) used the MidAtlantic 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 from 

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 ecological 

processes such as nutrient cycling and 

production of organic matter for 

downstream food webs may result in 

adverse impacts to downstream fishery 

resources. 

Furthermore, due to the removal of 

freshwater 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 embryos, resulting in abnormal 

development or death for those 

organisms. WVDEP is currently 

conducting several studies on the 

sublethal effects of selenium on fish. 

Other studies suggest a link between the 

degradation of fish health and 

mountaintop mining activities. As a 

result 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 forests will be destroyed by 

the Spruce No. 1 Mine and 7.48 miles 

of headwater stream will 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 

waterthrush, that require forested 

headwater streams for foraging on 

insects and nesting by elimination of the 

headwater areas associated with 

Pigeonroost and Oldhouse Branch. The 

West Virginia Breeding Bird Atlas 

(1984–1989) lists the Louisiana 

waterthrush as a probable breeder in the 

Spruce No. 1 project area. 

As indicated previously, the 

Appalachian Mountain Bird 

Conservation Region (AMBCR) is 

thought to support a substantial portion 

of the species’ breeding population, 

perhaps as much as 45 percent. Due to 

the large proportion 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 

(including large-scale loss of habitat and 

water quality degradation associated 

with Appalachian surface mining), the 

U.S. Fish and Wildlife Service has 

designated the Louisiana waterthrush a 

Species of Management Concern and a 

Species of Conservation Concern within 

the AMBCR. 

The Louisiana waterthrush’s diet is 

comprised predominantly of immature 

and adult aquatic macroinvertebrates 

found in and alongside headwater 

streams. Studies indicate that breeding 

territory density and occupancy were 

reduced along streams where benthic 

macroinvertebrate communities had 

been degraded due to anthropogenic 

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land uses and acidification. Lower 

breeding territory densities occurred 

along streams impacted by acid mine 

drainage than along circumneutral 

streams. Similarly, some indices of 

benthic macroinvertebrate integrity 

were higher where breeding Louisiana 

waterthrushes were present than areas 

from which they were absent. Stream 

reaches where breeding birds were 

detected had a greater proportion of 

pollution-sensitive benthic 

macroinvertebrates than reaches where 

they were not detected supporting the 

concept that good water quality is a key 

component of the species breeding 

habitat. 

In addition to stream pollution from 

anthropogenic land uses, elevated 

predator numbers from landscape-scale 

forest fragmentation and the loss of 

riparian forest canopy could also 

negatively impact future population 

levels of the Louisiana waterthrush. 

Ongoing impacts associated with 

landscape disturbances, including 

defoliation, increased stream 

temperatures, and compositional shifts 

in benthic macroinvertebrate 

communities, also could reduce 

populations in the AMBCR. Therefore, 

measures of Louisiana waterthrush 

distribution and reproduction may be 

useful indicators of both stream and 

forest ecosystem integrity. 

Management for this species has 

focused on protecting core wooded 

riparian habitat, including 

establishment of undisturbed riparian 

forest cover, and preservation and 

improvement of water quality to ensure 

aquatic insect biomass and diversity. 

Data from the PEIS showed that most of 

these forest-specific 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 species in 

the central Appalachians. 

The project also could impact other 

bird species that rely on mature forest 

habitats. Bird species that rely on 

mature forest habitats that are abundant 

in the Appalachian region are Kentucky 

warblers in the understory; and wood 

thrush, Swainson’s warbler, Acadian 

flycatcher, and ovenbirds in mesic 

hardwoods. These and many other avian 

species are all impacted by forest 

fragmentation and habitat loss caused 

by surface coal mining. 

Most notable is the Cerulean warbler, 

a species that has declined rapidly over 

the last 40 years, which relies on mature 

forests, and 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 

sharply and steadily by 3–3.2% per year 

from 1966–2005, the steepest rate of 

decline of any North American warbler 

monitored by the BBS. Geostatistical 

analysis of BBS data concluded that 

declines in the species’ abundance was 

concentrated 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 the 

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 

reproductive success for this species in 

areas with low overall forest cover and 

high degrees of forest fragmentation. 

Recommended conservation strategies 

focused on minimizing habitat loss in 

more productive forested habitats. 

Others studies found 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 

concluded that mountaintop miningvalley fills altered the spatial 

configuration of forest habitats and 

created edge and area effects that 

negatively impacted the abundance and 

occurrence of cerulean warblers in the 

vicinity of reclaimed mines. 

Additional investigators found that 

the Cerulean warbler breeding 

population in forested areas of southern 

West Virginia, which constitutes a 

substantial portion of the overall 

population, may be threatened by loss 

and degradation of forested habitats 

from mountaintop mining-valley fill 

activities. These 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 suggested that 

mountaintop mining-valley fill may 

have a greater impact on breeding 

populations of cerulean warblers than 

other types of forest fragmentation 

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 

degradation of remaining forests, as 

indicated by lower territory density in 

fragmented forests and lower territory 

density closer to mine edges. 

Spatial analyses of the effect of 

Appalachian mountaintop mining on 

interior forest indicate that the loss of 

interior forest is 1.75–5.0 times greater 

than the direct loss of forest due to 

mountaintop mining. Investigators 

concluded that the loss of Southern 

Appalachian interior forest is of global 

significance due to the rarity worldwide 

of large expanses of temperate 

deciduous forest. 

The Spruce No. 1 Mine will impact 

mature forested habitat, over a long 

timeframe, replacing the impacted areas 

with reclaimed areas dominated by 

grasses and herbaceous species. Many 

reclaimed areas such as those expected 

at Spruce No. 1 show little or no 

regrowth of woody vegetation even after 

15 years. The PEIS found significant 

differences in bird populations between 

forested and reclaimed sites, namely the 

loss of the above mentioned species, 

and subsequent replacement by more 

opportunistic grassland species. Also, 

the loss of the healthy headwater areas 

of Spruce Fork will reduce the feeding 

and foraging areas available to specialist 

Central Appalachian bird species 

thereby potentially impacting their 

viability in the Spruce Fork watershed 

and the greater Central Appalachian 

ecoregion. 

Additional impacts to avian species 

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 the 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 project as authorized has 

the potential to cause or contribute to 

unacceptable adverse impacts to 

wildlife. 

e. Bats 

Large-scale mountaintop removal/ 

valley fill mining has been listed among 

the threats to bat species in the region 

according to information supplied to 

EPA by the FWS. Loss of the bat’s 

habitat, foraging areas, and food 

sources—in conjunction with recently 

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indentified concerns related to whitenose syndrome—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, including 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 complex challenge of 

conserving bat species. Previous mining 

and logging activities and forest loss 

have also been identified as having 

adverse affects on bat populations. 

Commonly used reclamation 

techniques, many of which are designed 

to minimize erosion and provide 

backfill stability, are incompatible with 

re-establishment of trees necessary for 

successful roosting by bats. Such 

reclamation techniques have the 

potential to further stress bat 

populations. 

2. Impacts to Water Quality 

In considering water quality, it is 

important to recognize that adverse 

changes in water chemistry frequently 

have a corresponding impact on wildlife 

and fisheries that live in or depend 

upon the water. Potential adverse 

impacts to water chemistry are 

considered because they may affect the 

native aquatic and water-dependent 

communities in the Spruce Fork 

watershed. Additionally, the 404(c) 

regulations require consideration of 

whether the project would violate other 

environmental 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 are 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 

selenium include birth defects in fish 

and other aquatic life and can also result 

in toxic effects 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 

toxicity is primarily manifested as 

reproductive impairment due to 

maternal transfer, resulting in 

embryotoxicity (embryonic death) and 

teratogenicity (birth defects) in 

egglaying vertebrates. The most 

sensitive toxicity endpoints in fish 

larvae are teratogenic deformities such 

as skeletal, craniofacial, and fin 

deformities, and various forms of 

edema. Embryo mortality and severe 

development abnormalities can result in 

impaired recruitment of individuals into 

populations. WVDEP has also studied 

fish larval deformity rates and selenium 

concentrations within fish eggs, 

although not in the vicinity of the 

Spruce No. 1 project area. This draft 

study indicates that elevated selenium 

concentrations in fish eggs, increased 

larval deformity rates and increased 

deformity rates in mature fish were all 

associated with elevated water column 

selenium, indicating unacceptable 

adverse effects on fisheries. The 

sedimentation ponds traditionally used 

to treat drainage from mining operations 

generally are not effective in removing 

selenium from the discharge. 

West Virginia has established a 

numeric chronic water quality criterion 

for selenium of 5 ug/l to protect 

instream aquatic life. Current 

exceedances of West Virginia’s numeric 

water quality criterion for selenium 

within the Coal River sub-basin 

generally and the Spruce Fork subwatershed 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 selenium 

during mining. In West Virginia, coals 

that contain the highest selenium 

concentrations are found in a region of 

south central West Virginia where the 

Allegheny and Upper Kanawha 

Formations of the Middle 

Pennsylvanian are mined. WVDEP 

reports that some of the highest coal 

selenium concentrations are found in 

the central portion of the Coal River 

watershed where significant active 

mining and selenium impaired streams 

are located, in the immediate vicinity of 

the Spruce No. 1 project. 

Water quality monitoring data from 

streams draining the nearby Dal-Tex 

mine and from the outfalls draining the 

currently operational portions of the 

Spruce No. 1 Mine indicate levels of Se 

that exceed the chronic numeric water 

quality criterion of 5 μg/l. The data from 

the Dal-Tex mine do not indicate any 

decrease 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 and lead to 

significant degradation of water quality. 

In addition, as noted above, portions 

of the Spruce 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 

selenium 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 

the 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 

μg/l to 22 μg/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 cause 

or contribute to discharges of selenium 

that could cause unacceptable adverse 

impacts to fish and wildlife resources. 

In some freshwater food webs, Se has 

bioaccumulated to four times the toxic 

level; this can cause teratogenic 

deformities in larval fish, 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 

concentrations greater than 7 ppm. An 

important aspect of selenium residues 

in aquatic food chains is not direct 

toxicity to the organisms themselves, 

but rather the dietary source of selenium 

they provide to fish and wildlife species 

that feed on them. 

b. Total Dissolved Solids/Conductivity 

Discharges from the Spruce No. 1 

project are 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 

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studies have documented significant 

and strong correlations between 

degraded instream resident biota and 

high specific conductivity or TDS 

concentrations downstream of mining 

operations. The scientific literature 

indicates that several ions can be toxic, 

and they have varying relative toxicity 

to aquatic life. Furthermore, mixtures of 

ions can have ameliorative, synergistic 

or additive effects, depending on the 

mix of ions. Typical Central 

Appalachian alkaline mine drainage 

includes several component ions 

(magnesium, sulfate, bicarbonate, 

potassium) that can be toxic to aquatic 

life individually or as a mixture. 

Conductivity is an excellent indicator 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 relationship 

among salinity, TDS, and specific 

conductivity. Salinity reflects 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 molecular, ionized or microgranular (colloidal) suspended form and 

is normally reported in the units mg/l. 

Specific Conductivity (hereafter referred 

to as conductivity) is the ability of a 

solution to carry an electric current at a 

specific temperature (normally 25°C) 

and is normally reported in the units 

μS/cm. Conductivity and TDS both 

increase as the concentration of ions in 

a solution increase and are very strongly 

correlated. Normally, conductivity is 

reported by state and federal monitoring 

agencies because it is an instantaneous 

measurement that can be collected in 

situ with a meter, does not require a 

laboratory analysis, and is precise and 

accurate. 

Natural waters in the Spruce No. 1 

project area have very low conductivity 

(50–100 uS/cm) and TDS and are 

considered fresh water. However, water 

impacted by alkaline mine drainage 

such as those exhibited at Dal-Tex and 

anticipated for Spruce No. 1 has been 

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 the 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 quality criteria designed to protect 

aquatic life from elevated TDS (which 

can be measured by conductivity). 

However, there is strong scientific 

evidence that indicates what levels of 

conductivity would likely protect 

aquatic life. These data and science 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 quality in the proposed 

project area is in excellent/good 

condition, and conductivity levels are 

less than the most protective level 

suggested by the data. In contrast, 

conductivity 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 degradation of 

water quality and a high likelihood of 

harm to aquatic life. The table below, 

summarized from WVDEP data and 

scientific 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 ....................................................................... <327 uS/cm. 

High probability of impairment to native biota .................................................................................................................................. >500 uS/cm. 

Corresponds to levels of TDS identified 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 conductivity 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 draining the project area 

(Pigeonroost Branch and Seng Camp 

Creek) contain small amounts of 

historical mining in their watersheds. 

WVDEP data indicate the average 

conductivity for Piegeonroost 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 average 

conductivity and sulfate values reflect 

the relatively small amount of historical 

mining landuse in these watersheds. 

By contrast, the average conductivity 

and sulfate levels are elevated in other 

tributaries to Spruce Fork where 

historical mining is similar to what 

would occur if Spruce No. 1 Mine was 

constructed as authorized. For example, 

the streams draining mined areas to the 

west of Spruce Fork have the following 

average conductivity and sulfate values: 

Rockhouse Creek, 1012 uS/cm 

conductivity, 407 mg/l sulfate; Left Fork 

of Beech Creek, 2426 uS/cm 

conductivity, 1019 mg/l sulfate; Beech 

Creek, 1432 uS/cm conductivity, 557 

mg/l sulfate; and Trace Branch, 971 uS/ 

cm conductivity, 569 mg/l sulfate. 

The average conductivity and sulfate 

concentrations 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 draining the Spruce No. 1 

project currently indicate excellent 

water quality. These waters with lower 

conductivity, such as Pigeonroost 

Branch and Oldhouse Branch, may be 

providing freshwater dilution to Spruce 

Fork thereby preventing conductivity 

levels in Spruce Fork from becoming 

even more elevated. Discharges from 

valley fills into Pigeonroost Branch and 

Oldhouse Branch would both remove 

sources of freshwater 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 

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main stem of Spruce Fork has already 

been used by other mining discharges in 

the watershed. In light of the known 

relationship between elevated levels of 

TDS/conductivity and extirpation of 

portions of the native assemblages, any 

additional TDS or conductivity added to 

the mainstem of Spruce Fork by the 

project could cause unacceptable 

adverse impacts to the receiving streams 

and to Spruce Fork. 

Increases in conductivity associated 

with the Spruce No.1 project could also 

increase the likelihood of an outbreak of 

toxic golden algae. 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 coalfields 

of WV, which caused a devastating 

aquatic life kill (fishes, mussels, 

salamanders). 

3. Potential to Contribute to Conditions 

That Support Growth of Toxic Golden 

Algae 

The Spruce No. 1 project is likely to 

contribute to instream conditions 

(including increased instream total 

dissolved solids/conductivity and 

construction of sedimentation ponds) in 

or near Spruce Fork that may support 

golden algae Prymnesium parvum that 

releases toxins that kill fish and other 

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 time of the 

Dunkard Creek aquatic life kill, 

biologists reported observations of not 

only dead organisms, but also fish and 

other aquatic life behaving aberrantly in 

an effort to escape the toxin. Biologists 

reported mud puppies (an aquatic 

salamander that lives its entire life 

underwater) 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 biologists 

observed numerous individuals as 

dried-up carcasses on rocks and along 

the shoreline. Fish were observed 

avoiding the mainstem of Dunkard 

Creek by practically ‘‘stacking up’’ in the 

mouths of tributaries, subjecting 

themselves to feeding by blue heron 

rather than 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 the first 

identification of this invasive aquatic 

species in the Mid-Atlantic States. The 

factors that are most 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 1,000 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 project include 

the Little Coal River and West Fork/ 

Pond Fork. 

Golden algae was identified (in very 

high 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 likely to 

increase levels of TDS/conductivity in 

Spruce Fork, thus creating conditions 

more favorable to golden algae. In 

addition, numerous sedimentation 

ponds will be constructed, which could 

create areas of pooled habitat more 

favorable to golden algae. 

Because of the likelihood that the 

Spruce No. 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 Branch 

and Spruce Fork, the project could 

contribute to conditions, especially in 

Spruce Fork, that could support P. 

parvum with the resultant possibility of 

aquatic life kills including fish. Based 

on this information EPA believes that 

Spruce No. 1 as authorized could result 

in unacceptable adverse impacts to fish 

and wildlife resources. 

4. Proposed Mitigation May Not Offset 

Anticipated Impacts to an Acceptable 

Level 

Compensatory mitigation involves 

actions taken 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 (including stream 

creation and enhancement of existing 

streams) to compensate 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 plan. 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 physical, 

chemical and biological features that 

contribute to the pre-project level of 

function of targeted ecological systems. 

This would include areas both directly 

affected (e.g., filled streams and valleys), 

and indirectly affected (e.g., 

downstream receiving waters, stream 

reaches targeted for enhancement). 

• Develop a range of mitigation 

practices that fully compensate for all 

lost or modified features (physical, 

chemical, biological) and the 

concomitant loss of both function and 

areal extent. 

• Develop a protocol for monitoring 

the extent (over space) and rate (over 

time) of compensatory practices. This 

should include 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 designation 

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 exhibited 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 representation 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 acres) and 

intermittent/perennial (40.1 acres) have 

been documented by USGS. Further 

studies by US EPA Office of Research 

and Development, US EPA Region III 

and University of Kentucky show that 

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these USGS drainage area estimates are 

accurate. Using this information and onthe-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 

compensated 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. This assessment is a 

combination of linear footage of impact, 

habitat assessment scores, and stream 

hydrological status. EPA believes that 

such a calculation of debits and credits 

inadequately quantifies the mitigation 

needed for this project. The SHU as 

presented in the CMP only accounts for 

the physical aspects of stream condition 

and completely ignores the 

interrelationship 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 stream 

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, Philadelphia 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 

considers the physical characteristics of the 

stream. It does not include biological or 

chemical characteristics of the stream. 

Without those attributes, the assessment does 

not meet the requirements of a ‘‘functional’’ 

assessment. The Service recommends that 

the applicant use an assessment method that 

incorporates biological and chemical, as well 

as habitat, characteristics to determine the 

true function of the stream. 

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 aquatic resource function 

lost or adversely affected by authorized 

activities. Therefore, to conclude that 

the 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, 

creating 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. 

Although the permittee considers onsite erosion control structures 

equivalent to existing streams, drainage 

ditches are designed strictly with a 

physical component and lack a 

replacement of stream function. The 

resources 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 nutrient-rich 

base flow, temperature regimes, habitat 

diversity, gradient, floodplains, 

connectivity to downstream ecosystems, 

and other critical features of natural 

streams. 

The permittee indicates that the 

streams will be enhanced by additional 

flow, changing them from intermittent 

to perennial. However, many species 

rely on intermittent streams as part of 

their life history strategy. 

The permittee also proposes to 

improve channel or habitat on nearby 

streams. Streams are complex systems 

whose hydrogeomorphic behavior and 

biotic recovery are not easily predicted. 

Extensive, long-term monitoring is 

required to demonstrate enough 

ecological benefit to already-functioning 

streams to offset the proposed losses. 

Such actions would have to be taken at 

a ratio substantially greater than 1:1 to 

raise the mitigation areas’ functions 

enough to compensate for the loss of 

stream functions. 

The permittee has not indicated that 

water quality and biological diversity 

monitoring will be conducted after 

completion of the proposed project. 

Water chemistry and biological diversity 

should be used as indicators of project 

success. The project will be successful 

when the function of the restored 

streams (chemistry and biological 

diversity), is equivalent to that of the 

impacted streams. Without a thorough 

functional assessment prior to initiation 

of the project, it is impossible to 

determine when the mitigation is 

successful. 

In summary, the current proposal is 

problematic for several reasons: First, it 

fails to recognize the true functioning of 

healthy headwater streams and so 

therefore fails to replace the streams’ 

lost ecological services; and second, the 

planned control structures are waste 

treatment systems designed to control 

poor quality waters and then convey 

those waters offsite. These systems have 

the potential to export poor-quality 

water to downstream waters, in direct 

contrast to current 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 erosion 

control channels are taken into account, 

they not only fail to replace true stream 

function, 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 

regional headwater stream systems, the 

instream biota and chemistry 

component continue to be effectively 

ignored. In effect, the baseline starting 

point for developing an adequate 

compensatory 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 project. Finally, 

there is no evidence in the peerreviewed literature that the type of 

stream creation proposed in the CMP 

will successfully replace lost biological 

function and comparable stream 

chemistry. 

As a result of these concerns, EPA 

believes that the adverse impacts 

associated with the Spruce No. 1 project 

as authorized, are not adequately offset 

by the CMP and as such we believe the 

project may have unacceptable adverse 

impacts to fish and wildlife resources as 

described throughout this notice. 

5. Consistency With the 404(b)(1) 

Guidelines 

The CWA requires that exercise of 

final Section 404 (c) authority be based 

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on a determination of ‘‘unacceptable 

adverse effect’’ on municipal water 

supplies, shellfish beds and fishery 

areas (including spawning and breeding 

areas), wildlife, or recreational areas at 

40 CFR 231.2(e) including taking into 

account: 

* * * all information available to him (the 

Administrator), including any written 

determination of compliance with the 

Section 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 damaging practicable 

alternative, if it would cause or 

contribute to a violation of a state water 

quality standard, or if it would cause or 

contribute to significant degradation of 

waters of the United States. 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 

practicable 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 believes that 

additional avoidance and minimization 

of anticipated impacts may be achieved 

by constructing the project sequentially 

and allowing monitoring data from each 

portion of the project to inform 

decisions regarding the remainder of the 

project. These monitoring data would 

then be used as a basis for specific 

actions in response to adverse changes 

in water quality. 

b. Water Quality 

With respect to water quality and 

significant degradation, neither the 

Corps nor WVDEP considered 

information demonstrating that surface 

mining with valley fills in Central 

Appalachia is strongly related to 

downstream water quality degradation. 

Specifically, the Corps apparently did 

not consider the relevance of 

impairment to waters draining the 

nearby Dal-Tex operation. The water 

quality 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 

discharges from the Spruce No. 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 anticipated 

impacts of the Spruce No. 1 Mine, as 

mining is proposed to occur in the same 

strata.’’ While the EIS notes that the 

water quality draining the Dal-Tex 

complex is alkaline, it does not consider 

the water quality impairments 

(including violations of the iron and 

selenium numeric criteria and adverse 

biological impacts) identified by 

WVDEP in the streams draining the DalTex operation. 

The Corps and WVDEP also failed to 

consider adequately the potential for 

discharges of TDS from Spruce No. 1 to 

raise instream conductivity levels 

downstream from the project, resulting 

in impairment to the naturally occurring 

aquatic community. The Spruce No. 1 

EIS states: ‘‘Total dissolved solids may 

increase in mine area discharges, 

depending on the nature and timing of 

groundwater contributions to sediment 

pond/storm water management system. 

However, discharges 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 concentrations 

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 consider that the 402 permit does 

not include an analysis pursuant to 40 

CFR 122.4(d)(1), an analysis 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 downstream of the Dal-Tex 

operation and other mines. 

Data from operations at the project 

site show that the project is likely to 

discharge selenium at levels above West 

Virginia’s chronic exposure water 

quality criterion. That information was 

not available to and therefore was not 

considered by the Corps or WVDEP. 

In addition, the Corps and WVDEP 

did not consider the potential for 

discharges from the Spruce No. 1 project 

to contribute to conditions that could 

potentially support golden algae blooms 

as described in this proposed 

determination. 

V. Proposed Determination 

The Regional Administrator proposes 

to recommend 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 prohibited or 

restricted. Based on current information, 

the Regional Administrator has reason 

to believe that the Spruce No. 1 Surface 

Mine as currently authorized could 

result in unacceptable adverse impacts 

and that these adverse impacts can be 

reduced or avoided through appropriate 

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 significant 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 lifecycles. The streams and 

wildlife that will be buried cannot be 

viewed 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 performed by the 

buried resources and by transformation 

of the buried areas into sources 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 from deforestation of the project 

site on terrestrial wildlife. In addition, 

impacts from the project could 

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 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies. EPA has this 

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goal for all communities and persons 

across this Nation. In this case these 

goals are promoted through the 

requirement that all agencies of the 

Federal government shall include an 

analysis of environmental justice issues 

when considering the impacts related to 

the Spruce No. 1 project. Although the 

Spruce No. 1 Draft EIS contained some 

information regarding environmental 

justice, EPA remains concerned that 

these issues were not adequately 

addressed 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. Accordingly, 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 relating 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. Additional 

consideration must also be given to 

these activities’ potential impacts on 

subsistence fishing, hunting, foraging 

and gardening in the area. Additional 

information is needed concerning 

sources of drinking water for the 

affected populations (including 

municipal water supplies and private 

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 many cases 

have helped define Appalachian 

society. Removing them 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 particular 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 

considered both independently and 

cumulatively. Considering the effects 

cumulatively provides the most realistic 

‘‘snapshot’’ of what the community will 

be facing when the project reaches 

fruition. Having this information readily 

available will help engage the affected 

communities during public outreach 

and ensure that they can be 

meaningfully involved. 

B. Cumulative Effects 

The Clean Water Act Section 404(b)(1) 

Guidelines require that ‘‘no discharge of 

dredged or fill material shall be 

permitted if it causes or contributes, 

after consideration of disposal site 

dilution and dispersion, 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 and 

permanence of effects, both individually 

and cumulatively. Cumulative impacts 

are ‘‘the impact on the environment 

which results from the incremental 

impact of the action when added to 

other past, present and reasonably 

foreseeable future actions, regardless of 

what agency or person undertakes such 

other actions.’’ (40 CFR 1508.7) 

Individual adverse impacts from an 

action may be insignificant 

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), socioeconomic 

resources, human health, recreation, 

quality of life aspects, and cultural and 

historical resources of that action and 

all other activities affecting those 

resources, compounding 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 km2, 3.2% of the 

baseline. Approximately 42% of these 

projected losses occur in headwater 

(first and second-order) streams. 

As currently authorized, the Spruce 

No. 1 project is one of the largest 

mountaintop mining projects authorized 

in West Virginia. The project would 

directly impact nearly seven and onehalf miles of valuable headwater 

streams, and would indirectly impact 

Spruce Fork and potentially other 

downstream waters 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 

Pigeonroost Branch and Oldhouse 

Branch. 

Spruce No. 1 project lies within the 

Little Coal River watershed within the 

Coal River sub-basin. The Little Coal 

watershed 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 watershed quality is strong. 

In addition to impacts from 

discharges and removal of riparian 

habitat and sources of freshwater 

dilution, there also will be an adverse 

effect from deforestation of the project 

site on terrestrial wildlife. 

Approximately 2,278 acres of deciduous 

forest will be destroyed by the Spruce 

No. 1 Mine. Forests like these in 

Appalachia support some of the highest 

biodiversity in North America and are 

unique in its expansiveness. In its 

natural condition, the Appalachian 

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 shift 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 with the PEIS 

concluded that surface mining had 

deforested 1,540 km2 or 380,542 ac 

(3.4%) of the study area during the 10 

years between 1992 and 2002. An 

estimated 5,700 km2 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 

been shown in acres classified as 

‘‘surface mining/quarries/gravel pits 

indicating a degrading land-use change 

at the expense of the natural condition 

of the area. 

Because of fragmentation of forests by 

mountaintop 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 has the 

potential to isolate natural populations, 

reduce population sizes, reduce gene 

flow, increase the risk of extirpation or 

extinction of rare species, and increase 

the rate of invasion by exotic species, 

especially plants. Fragmentation of the 

terrestrial environment due to mining, 

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projected from land cover data in the 

West Virginia Gap Analysis Program 

(GAP) and the permit rates observed 

during the 10 years preceding the 

publication of the PEIS, indicates: 

• 40% increase in the number of 

isolated forest habitat fragments 

• 41% decrease in the average size of 

habitat fragments from 24.64 to 14.3 

acres 

• 2.7% increase in the amount of 

edge habitat, caused by fragmentation of 

interior forests 

The Spruce No. 1 project will destroy 

approximately 2,278 acres of functional 

deciduous forests replacing it with 

grasslands or other land cover. 

According to WVDEP Division of 

Mining and Reclamation (DMR) permit 

maps, within the Headwaters Spruce 

Fork sub-watershed, where Spruce No. 

1 is to be located, there are more than 

34 past and present surface mine 

permits issued which collectively 

occupy more than 33% of the land area. 

From 1992 to 2009 forest coverage 

decreased from approximately 73% to 

61% and can be expected to decrease to 

53% of the sub-watershed in the 

reasonably foreseeable future. 

Additionally, other sub-watersheds in 

the Coal River sub-basin have more than 

55% of the land occupied by surface 

mine permits. 

Within the Coal River sub-basin there 

are more 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 mining 

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 

approximately 29.4 miles of stream 

channels resulting in potential 

impairment to more streams in the Coal 

River sub-basin. 

Trend analysis indicates mountaintop 

mining and 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 decisionmaking 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 

numerous other mining operations 

either under construction or proposed 

for the Coal River sub-basin, will 

contribute to the cumulative loss of 

water quality, 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 

mountaintop mining has caused 

substantial, irreplaceable loss of 

resources and an irreversible effect on 

these resources within the Coal River 

sub-basin. 

At the sub-basin level, surface mining 

of coal has the potential to cumulatively 

impact natural resources, both aquatic 

and terrestrial, and the number of 

mining operations, permitted or 

proposed, in the Coal River watershed 

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 stream 

destruction, downstream water quality 

degradation, and the destruction and 

fragmentation of many acres of 

productive and functional forests. EPA 

believes these impacts have not been 

sufficiently acknowledged or analyzed 

by the permittee or the Corps of 

Engineers for this project. 

Additional data from the PEIS’s 

Landscape-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 estimated 

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 

ecological services will be permanently 

lost. 

Forest losses of this magnitude, 

although largely temporary (on the scale 

of decades), are not inconsequential. In 

addition to the popularly appreciated 

wildlife, recreational, and timber 

resources associated with forest 

systems, many ecological services can 

be attributed to forest systems. We are 

just beginning to understand and assign 

value to these ecological services. For 

example, forests are known to be natural 

areas of carbon sequestration. The 

cumulative loss of 1,189 square miles of 

forest would conservatively equate to 

the loss of 1.7M tons of carbon dioxide 

sequestration potential per year or the 

equivalent of taking 300,000 cars off the 

road. Additionally, forests dampen 

flooding potential and act as natural 

nutrient sinks. One study estimates that 

forest cover of 1,189 square miles 

cumulatively provides approximately 

$138 million in aquatic nutrient-cycling 

and waste treatment services. 

VII. Solicitation of Comments 

EPA today is soliciting comments on 

all issues discussed 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 (Right 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 the 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 the aquatic 

ecosystem if the project is constructed. 

(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 mitigation to reduce the 

impacts of the project. 

(6) Additional information describing 

the known or potential cumulative 

impacts to human health and the 

environment within the Coal River subbasin and the Spruce Fork subwatershed. 

(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 determination 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 level. 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. 

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(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 until June 1, 2010. 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 

Branch in connection with construction 

and operation of Spruce No. 1 Surface 

Mine. 

Dated: March 26, 2010. 

Shawn M. Garvin, 

Regional Administrator, Region III. 

[FR Doc. 2010–7532 Filed 4–1–10; 8:45 am] 

BILLING CODE 6560–50–P 

EXPORT-IMPORT BANK OF THE 

UNITED STATES 

Notice of Open Special Meeting of the 

Sub-Saharan Africa Advisory 

Committee (SAAC) of the ExportImport Bank of the United States 

(Export-Import Bank) 

SUMMARY: The Sub-Saharan Africa 

Advisory Committee was established by 

Public Law 105–121, November 26, 

1997, to advise the Board of Directors on 

the development and implementation of 

policies and programs designed to 

support the expansion of the Bank’s 

financial commitments in Sub-Saharan 

Africa under the loan, guarantee, and 

insurance programs of the Bank. 

Further, the committee shall make 

recommendations on how the Bank can 

facilitate greater support by U.S. 

commercial banks for trade with SubSaharan Africa. 

Time and Place: April 21, 2010, at 

9:30 a.m. to 12:30 p.m. The meeting will 

be held at the Export-Import Bank in 

Room 1143, 811 Vermont Avenue, NW., 

Washington, DC 20571. 

Agenda: Presentation on recent 

developments in Sub-Saharan Africa 

markets by Export-Import Bank staff; an 

update on the Bank’s on-going business 

development initiatives in the region; 

and Committee discussion of current 

challenges and opportunities for U.S. 

exporters. 

Public Participation: The meeting will 

be open to public participation, and the 

last 10 minutes will be set aside for oral 

questions or comments. Members of the 

public may also file written statement(s) 

before or after the meeting. If any person 

wishes auxiliary aids (such as a sign 

language interpreter) or other special 

accommodations, please contact, prior 

to April 21, 2010, Richard Thelen, 811 

Vermont Avenue, NW., Washington, DC 

20571, Voice: (202) 565–3515 or TDD 

(202) 565–3377. 

FOR FURTHER INFORMATION CONTACT: For 

further information, contact Richard 

Thelen, 811 Vermont Avenue, NW., 

Washington, DC 20571, (202) 565–3515. 

Jonathan Cordone, 

Senior Vice President and General Counsel. 

[FR Doc. 2010–7434 Filed 4–1–10; 8:45 am] 

BILLING CODE 6690–01–M 

FEDERAL RESERVE SYSTEM 

Formations of, Acquisitions by, and 

Mergers of Bank Holding Companies 

The companies listed in this notice 

have applied to the Board for approval, 

pursuant to the Bank Holding Company 

Act of 1956 (12 U.S.C. 1841 et seq.) 

(BHC Act), Regulation Y (12 CFR Part 

225), and all other applicable statutes 

and regulations to become a bank 

holding company and/or to acquire the 

assets or the ownership of, control of, or 

the power to vote shares of a bank or 

bank holding company and all of the 

banks and nonbanking companies 

owned by the bank holding company, 

including the companies listed below. 

The applications listed below, as well 

as other related filings required by the 

Board, are available for immediate 

inspection at the Federal Reserve Bank 

indicated. The applications also will be 

available for inspection at the offices of 

the Board of Governors. Interested 

persons may express their views in 

writing on the standards enumerated in 

the BHC Act (12 U.S.C. 1842(c)). If the 

proposal also involves the acquisition of 

a nonbanking company, the review also 

includes whether the acquisition of the 

nonbanking company complies with the 

standards in section 4 of the BHC Act 

(12 U.S.C. 1843). Unless otherwise 

noted, nonbanking activities will be 

conducted throughout the United States. 

Additional information on all bank 

holding companies may be obtained 

from the National Information Center 

website at www.ffiec.gov/nic/. 

Unless otherwise noted, comments 

regarding each of these applications 

must be received at the Reserve Bank 

indicated or the offices of the Board of 

Governors not later than April 27, 2010. 

A. Federal Reserve Bank of Dallas (E. 

Ann Worthy, Vice President) 2200 

North Pearl Street, Dallas, Texas 75201- 

2272: 

1. Veritex Holdings, Inc., Dallas, 

Texas; to become a bank holding 

company by acquiring 100 percent of 

Professional Capital, Inc., Dallas, Texas, 

and indirectly acquire Professional 

Bank, N.A., Dallas, Texas. 

B. Federal Reserve Bank of San 

Francisco (Kenneth Binning, Vice 

President, Applications and 

Enforcement) 101 Market Street, San 

Francisco, California 94105-1579: 

1. SKBHC Holdings, LLC, Corona del 

Mar, California; to become a bank 

holding company by acquiring 100 

percent of Starbuck Bancshares, Inc. and 

thereby indirectly acquire The First 

National Bank of Starbuck, both of 

Starbuck, Minnesota. 

Board of Governors of the Federal Reserve 

System, March 30, 2010. 

Robert deV. Frierson, 

Deputy Secretary of the Board. 

[FR Doc. 2010–7443 Filed 4–1–10; 8:45 am] 

BILLING CODE 6210–01–S 

FEDERAL MARITIME COMMISSION 

[Docket No. 10–02] 

BDP International, Inc. v. United 

Transport Tankcontainers, Inc.; Notice 

of Filing of Complaint and Assignment 

Notice is given that a complaint has 

been filed with the Federal Maritime 

Commission (‘‘Commission’’) by BPD 

International, Inc. (‘‘BPD’’), hereinafter 

‘‘Complainant,’’ against United 

Transport Tankcontainers, Inc. 

(‘‘United’’), hereinafter ‘‘Respondent.’’ 

Complainant asserts that it is a 

corporation organized and existing 

pursuant to the laws of Pennsylvania 

and an FMC licensed freight forwarder. 

Complainant asserts that Respondent is 

a corporation organized and existing 

pursuant to the laws of Delaware and is 

a licensed and bonded non-vesseloperating common carrier. 

Complainant asserts that by failing to 

pay freight forwarder compensation to 

Complainant pursuant to Respondent’s 

published tariff, Respondent violated 

Section 10(b)(2)(a) of the Shipping Act 

of 1984, 46 U.S.C. 41104(2), which 

prohibits provision of service that is not 

in accordance with the rates, charges, 

classifications, rules, and practices 

contained in a tariff. Complainant 

asserts that as a direct consequence of 

Respondent’s unlawful conduct, 

Complainant has suffered damages in 

the amount of $143,765.63. 

Complainant requests that the 

Commission compel Respondent to 

answer the charges made by 

Complainant; that the Commission hold 

that Respondent’s actions were in 

mstockstill on DSKH9S0YB1PROD with NOTICES