[Federal Register: April 2, 2010 (Volume 75, Number 63)]
[Notices]
[Page 16788-16808]
[DOCID:fr02ap10-71]

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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

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_ADDRESS>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

restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in http://www.regulations.gov or in
hard copy at the Office of Environmental Programs; Environmental
Assessment and Innovation Division; U.S. Environmental Protection
Agency, Region III; 1650 Arch Street, Philadelphia, Pennsylvania 19103.
EPA requests that if at all possible, you contact the office listed in
the FOR FURTHER INFORMATION CONTACT section to schedule your
inspection. The EPA Region III Office's official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal
holidays.
    Public Hearing: In accordance with EPA regulations at 40 CFR 231.4,
the Regional Administrator may decide that a public hearing on a
proposed Section 404(c) determination would be in the public interest.
A separate public notice will be published in advance of any hearing in
the Federal Register and local newspapers to announce the date, time
and location of the hearing and describe hearing procedures. Written
comments may be presented at the hearing.

FOR FURTHER INFORMATION CONTACT: For information regarding this notice
of proposed Section 404(c) determination, contact the Office of
Environmental Programs; Environmental Assessment and Innovation
Division; U.S. Environmental Protection Agency, Region III; 1650 Arch
Street, Philadelphia, Pennsylvania 19103. The telephone number is 215-
814-2760. The Office can also be reached via electronic mail at R3_
<EMAIL_ADDRESS>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)

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

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

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.
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    \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

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

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

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

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

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

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

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

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

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

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

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

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