[Federal Register Volume 75, Number 63 (Friday, April 2, 2010)]
[Notices]
[Pages 16788-16808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7532]


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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.

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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

[[Page 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: [email protected]. 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

[[Page 16790]]

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 [email protected]. 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)

[[Page 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 Sec.  404 Permit (DA Permit No. 
199800436-3 (Section 10: Coal River)) to Mingo Logan for its

[[Page 16792]]

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 
25\1\ outfalls pursuant to Section 402 of the Clean Water Act, 33 
U.S.C. 1342.
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    \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.
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    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[deg]52[min]39[sec] and Longitude 
81[deg]47[min]52[sec] 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 on-site, 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. 
On-site 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, non-
jurisdictional 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

[[Page 16793]]

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.
---------------------------------------------------------------------------

    \2\ A TMDL is a calculation of maximum amount of a pollutant 
that a waterbody can receive and still meet water quality standards
---------------------------------------------------------------------------

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 sub-watersheds 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

[[Page 16794]]

land cover will continue to increase in the Headwaters Spruce Fork sub-
watershed and forest area will continue to decrease as a result. From 
1992 to 2009 forest coverage has decreased from approximately 73% to 
61% and can be expected to decrease to 53% of the sub-watershed in the 
reasonably foreseeable future.
    The EPA sampled several streams within the Spruce Fork sub-
watershed for the previously referenced interagency PEIS. The 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 waters\3\ 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.
---------------------------------------------------------------------------

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

    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 bottom-
dwelling (benthic) organisms that are large enough to be seen without 
the aid of microscopes (macro), and are not equipped with backbones 
(invertebrate). Freshwater macroinvertebrates, such as mayflies and 
stoneflies, serve as indicators of ecosystem 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

[[Page 16795]]

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 Mid-Atlantic 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 pollution-tolerant 
genera such as Baetisca, Baetis, and Isonychia). This count represents 
only an estimate of mayfly richness in these streams; several other 
genera have been found by WVDEP in other Spruce Fork tributaries and 
are potentially present in the project area. As many as nine genera of 
mayflies have been collected in Oldhouse Branch in any one season-
specific sample, with an average of seven genera across multiple 
samples. These data, cited above, are significant and indicate that 
less than 5% of all other streams in this ecoregion have more mayflies 
than Oldhouse Branch. Previous government and academic research on the 
effects of Appalachian coal mining on mayfly communities indicate 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

[[Page 16796]]

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 high-gradient, first- to 
third-order, clear, perennial headwater streams flowing through closed-
canopy forest. Good water quality is a key component of the species 
breeding habitat. Headwater streams like 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 moderate- to high-gradient 
headwater streams, which compose 75-80% of stream length in a typical 
watershed
    Bird species that rely on mature forest habitats that are on the 
Audubon watch list as declining species and are listed as probable in 
the area include the Swainson warbler (Limnothlypis swainsonii), 
Kentucky warbler (Oporornis formosus), and Cerulean warbler (Dendroica 
cerulean). The 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

[[Page 16797]]

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

[[Page 16798]]

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 Dal-Tex 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 
water-dependent 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 Dal-Tex 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

[[Page 16799]]

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 
non-filled 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 Mid-Atlantic Highlands Index of Biotic 
Integrity (IBI--a multi-metric index used to assess biotic health) to 
analyze fish data from 27 streams in West Virginia. In this study 
streams were classified based on existing levels of disturbance (e.g., 
no mining in the watershed, sites downstream of valley fills, sites 
with mountaintop mining in the watershed, sites downstream of valley 
fills, and sites with residential development in the watershed) and 
compared fish health among stream classes. The study showed that 
assessment scores from the sites downstream of valley fills were 
significantly lower than scores 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

[[Page 16800]]

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 mining-valley 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

[[Page 16801]]

indentified concerns related to white-nose 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 sub-watershed have been identified by WVDEP. These confirmed 
exceedances of the numeric water quality criterion for selenium 
demonstrate that the geology in the area of the Spruce No. 1 Mine is 
likely to release 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 [mu]g/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 [mu]g/l to 22 
[mu]g/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

[[Page 16802]]

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 micro-granular (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[deg]C) and is normally 
reported in the units [mu]S/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     <327 uS/cm.
 possible stressor in WV TMDL analysis.
High probability of impairment to native       >500 uS/cm.
 biota.
Corresponds to levels of TDS identified as     >714 uS/cm.
 likely to support growth of toxic golden
 algae.
Level at which conductivity may be a           >767 uS/cm.
 ``moderate'' stressor in recent TMDL studies.
------------------------------------------------------------------------

    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

[[Page 16803]]

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

[[Page 16804]]

these USGS drainage area estimates are accurate. Using this information 
and on-the-ground field observations in the Spruce No. 1 project area, 
EPA believes that the proposed valley fills will likely impact a 
greater quantity (by thousands of feet) of intermittent and perennial 
stream channels than is proposed to be 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 on-site erosion control structures 
equivalent to existing streams, drainage ditches are designed strictly 
with a physical component and lack a replacement of stream function. 
The 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 peer-reviewed 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

[[Page 16805]]

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 Dal-Tex 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

[[Page 16806]]

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 km\2\, 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 one-half 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 km\2\ or 380,542 ac (3.4%) of the study area during 
the 10 years between 1992 and 2002. An estimated 5,700 km\2\ or 
1,408,500 ac (11.5%) of the PEIS study area was projected to be 
deforested by 2012, an area 1.4 times the size of the state of Rhode 
Island. A 3-fold increase has 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,

[[Page 16807]]

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 decision-making for Spruce No. 1 in 
terms of their cumulative affects on water quality, aquatic, and forest 
resources of the region. EPA believes that the Spruce No. 1 project, in 
conjunction with the 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 sub-basin and the Spruce Fork sub-watershed.
    (7) Consistent with Executive Order 12898, information about low-
income and minority populations likely to be affected by the Spruce No. 
1 Surface Mine and the disproportionately high adverse human health or 
environmental effects, if any, on these populations if EPA makes a 
final determination to rescind the proposed 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.

[[Page 16808]]

    (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