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, 16788-16808 [2010-7532]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

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


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R03-OW-2009-0985; FRL-9133-4]


Proposed Determination To Prohibit, Restrict, or Deny the 
Specification, or the Use for Specification (Including Withdrawal of 
Specification), of an Area as a Disposal Site; Spruce No. 1 Surface 
Mine, Logan County, WV

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Pursuant to Section 404(c), the United States Environmental 
Protection Agency Region III (EPA) is requesting public comments on its 
proposal to withdraw or restrict use of Seng Camp Creek, Pigeonroost 
Branch, Oldhouse Branch, and certain tributaries to those waters in 
Logan County, West Virginia to receive dredged and/or fill material in 
connection with construction of the Spruce No. 1 Surface Mine (Spruce 
No. 1 Mine or the project).
    An important part of EPA's mission is to ensure our environment and 
public health are protected and restored for current and future 
generations. Among ways that EPA carries out its mission is by ensuring 
appropriate implementation of the Clean Water Act. Section 404(c) of 
the Clean Water Act (CWA) authorizes the U.S. Environmental Protection 
Agency (EPA) to prohibit, restrict, or deny use of any defined area in 
waters of the United States for specification (including the withdrawal 
of specification) for the discharge of dredged and/or fill material 
whenever it determines, after notice and opportunity for public 
hearing, that use of such sites to receive dredged and/or fill material 
would have an unacceptable adverse impact on various resources, 
including fisheries, wildlife, municipal water supplies, and 
recreational areas. This authority is often referred to as EPA's 
authority to ``veto'' a CWA Section 404 permit to discharge dredged 
and/or fill material to waters of the United States.
    The Spruce No. 1 Mine is one of the largest surface mining 
operations ever authorized in Appalachia. In connection

[[Page 16789]]

with this project, Mingo Logan Coal Company (permittee) has been 
authorized by the U.S. Army Corps of Engineers, Huntington District 
(Corps) (Department of the Army Permit No. 199800436-3 (Section 10: 
Coal River)) to construct six ``valley fills'' and numerous 
sedimentation ponds in Seng Camp Branch (already partially 
constructed), Pigeonroost Branch (not yet constructed), Oldhouse Branch 
(not yet constructed), and certain tributaries to those waters by 
discharging excess overburden (or spoil) generated by surface coal 
mining operations. The project as authorized will directly impact 2,278 
acres, including more than seven miles of stream, and indirectly impact 
other waters. EPA Region III acknowledges the project has undergone 
extensive regulatory review and has been modified from the original 
proposal in order to reduce impacts. EPA Region III is taking this 
action because it believes, despite all the regulatory processes 
intended to protect the environment, that construction of Spruce No. 1 
Mine as authorized would destroy streams and habitat, cause significant 
degradation of on-site and downstream water quality, and could 
therefore result in unacceptable adverse impacts to wildlife and 
fishery resources. These impacts are described in more detail in 
Section IV below.
    The goal of protecting water quality, plant and animal habitat, 
navigable waterways, and other downstream resources requires the 
careful protection of headwater streams and life they support. These 
streams are like the capillaries within our circulatory system. They 
are the largest network of waterbodies within our ecosystem and provide 
the most basic and fundamental building blocks to the remainder of the 
aquatic and human environment.
    Applying the lessons of the past, we now know that failure to 
control mining practices has resulted in persistent environmental 
degradation in the form of acid mine drainage and other impacts that 
cost billions to remedy. While the Surface Mining Control and 
Reclamation Act (SMCRA), the CWA, and other laws have put in place 
controls addressing some environmental impacts, including acid mine 
drainage, recent studies and experience point to new environmental and 
health challenges that were largely unconsidered until more recently. 
We know the regulatory controls currently in place have not prevented 
adverse water quality and aquatic habitat impacts from other surface 
mining operations. We also know the same types of impacts as those 
anticipated from this project have had previously unforeseen 
environmental consequences.
    Public health issues surrounding the types of impacts associated 
with the Spruce No. 1 project are not well understood. EPA has been 
presented with household-specific and anecdotal information that 
suggests individual and possibly public surface water and ground water 
supplies could be adversely impacted by surface coal mining activities. 
In addition, recent published studies directly relate intensity of 
surface mining activities within Appalachia to degraded public health 
and mortality. EPA has been presented with a petition from a variety of 
local stakeholders that outlines many of these concerns and further 
relates them to issues of environmental justice.
    Ultimately, EPA's process will result in one of three outcomes: (1) 
EPA could withdraw specification of the site as a disposal site and 
decide to use its discretion to prohibit any discharges from the 
project, including the construction of valley fills; (2) EPA could 
restrict specification of the site as a disposal site and decide the 
project cannot go forward under the permit as currently issued, but 
could go forward under a modified permit with more environmentally 
protective conditions; or (3) EPA could decide the permit as currently 
issued is sufficiently protective.
    EPA seeks comment on this proposed Section 404(c) determination to 
withdraw, prohibit or restrict use of Seng Camp Creek, Pigeonroost 
Branch, Oldhouse Branch, and their tributaries in Logan County, West 
Virginia, to receive dredged or fill material in connection with 
construction of the Spruce No. 1 Surface Mine as currently authorized 
by the January 22, 2007 Department of the Army (DA) Permit No. 
199800436-3 (Section 10: Coal River). See Solicitation of Comments, at 
the end of the public notice, for further details.

DATES: Comments must be received in writing by June 1, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R03-OW-
2009-0985, by one of the following methods:
    1. Federal eRulemaking Portal (recommended method of comment 
submission): https://www.regulations.gov. Follow the online instructions 
for submitting comments.
    2. E-mail: ow-docket@epamail.epa.gov. Include the docket number, 
EPA-R03-OW-2009-0985, in the subject line of the message.
    3. Mail: ``EPA-R03-OW-2009-0985, Spruce No. 1 Surface Mine,'' U.S. 
Environmental Protection Agency, EPA Docket Center Water Docket, Mail 
Code 28221T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
    4. Hand Delivery or Courier: Director, Office of Environmental 
Programs; Environmental Assessment and Innovation Division; U.S. 
Environmental Protection Agency, 3EA30 Region III; 1650 Arch Street, 
SW.; Philadelphia, Pennsylvania 19103. Such deliveries are accepted 
only during the Regional Office's normal hours of operation, which are 
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal 
holidays.
    5. Submit at Public Hearing: See Public Hearing section below. 
Instructions: Direct your comments to Docket ID No. EPA-R03-OW-2009-
0985.
    EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at https://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 https://www.regulations.gov 
or e-mail, information that you consider to be CBI or otherwise 
protected. The https://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 https://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 https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is

[[Page 16790]]

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

FOR FURTHER INFORMATION CONTACT: For information regarding this notice 
of proposed Section 404(c) determination, contact the Office of 
Environmental Programs; Environmental Assessment and Innovation 
Division; U.S. Environmental Protection Agency, Region III; 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. The telephone number is 215-
814-2760. The Office can also be reached via electronic mail at R3_Spruce_Surface_Mine@epa.gov. This is for information on the notice 
only and is not the official comment submission forum. Please see the 
previous section for directions on submitting comments on the Proposed 
Determination.

SUPPLEMENTARY INFORMATION:  Throughout this document, references to 
``EPA,'' ``we,'' ``us'' or ``our'' are references to the Environmental 
Protection Agency. References to the ``Corps'' refer to the U.S. Army 
Corps of Engineers. References to ``WVDEP'' refer to the West Virginia 
Department of Environmental Protection. References to Seng Camp Creek, 
Pigeonroost Branch and Oldhouse Branch also refer to tributaries to 
those waters that would be impacted by the project as authorized. The 
supplementary information is arranged as follows:

I. Section 404(C) Procedure
II. Project Description and Background
    A. Project History
    B. Project Description
III. Characteristics and Functions of the Impacted Resources
    A. Watershed and Stream Conditions
    1. The Coal River Sub-basin
    2. The Spruce Fork Sub-watershed
    B. Wildlife
    1. Invertebrates
    2. Vertebrates
    a. Salamanders
    b. Fish
    c. Birds
    d. Bats
IV. Basis for Proposed Determination
    A. Section 404(c) Standards
    B. Adverse Impacts of the Proposed Project
    1. Impacts to Wildlife
    a. Freshwater Macroinvertebrates
    b. Salamanders
    c. Fish
    d. Birds
    e. Bats
    2. Impacts to Water Quality
    a. Selenium
    b. Total Dissolved Solids/Conductivity
    3. Potential To Contribute to Conditions That Support Growth of 
Toxic Golden Algae
    4. Proposed Mitigation May Not Offset Anticipated Impacts to an 
Acceptable Level
    5. Consistency With the 404(b)(1) Guidelines
    a. Alternatives
    b. Water Quality
V. Proposed Determination
VI. Other Considerations
    A. Environmental Justice
    B. Cumulative Effects
VII. Solicitation of Comments

I. Section 404(C) Procedure

    The Clean Water Act (CWA) 33 U.S.C. 1251, et seq., prohibits the 
discharge of pollutants, including dredged or fill material, into 
waters of the United States (including wetlands) except in compliance 
with, among other provisions, Section 404 of the CWA, 33 U.S.C. 1344. 
Section 404 authorizes the Secretary of the Army, acting through the 
Chief of Engineers (Corps), to authorize the discharge of dredged or 
fill material at specified disposal sites. This authorization is 
conducted, in part, through application of environmental guidelines set 
forth in regulations developed by EPA in conjunction with the Corps 
under Section 404(b) of the CWA, 33 U.S.C. 1344(b) (Section 404(b)(1) 
Guidelines).
    Section 404(c) of the CWA authorizes EPA to prohibit specification 
(including the withdrawal of specification) of any defined area as a 
disposal site, and EPA is authorized to restrict or deny use of any 
defined area for specification (including withdrawal of specification) 
as a disposal site, whenever it determines, after notice and 
opportunity for public hearing, that the discharge of such materials 
into any defined area will have an unacceptable adverse effect on 
municipal water supplies, shellfish beds and fishery areas (including 
spawning and breeding areas), wildlife, or recreational areas.
    Procedures for implementing Section 404(c) are set forth in 40 CFR 
Part 231. Under those procedures, if the Regional Administrator has 
reason to believe that use of a site for discharge of dredged or fill 
material may have an unacceptable adverse effect on one or more of the 
aforementioned resources, he may initiate the Section 404(c) process by 
notifying the Corps and applicant/permittee (and/or project proponent 
and landowner(s)) that he intends to issue a proposed determination. 
Each of those parties then has 15 days to demonstrate to the 
satisfaction of the Regional Administrator that no unacceptable adverse 
effects will occur, or that corrective action to prevent an 
unacceptable adverse effect will be taken. If no such information is 
provided to the Regional Administrator, or if the Regional 
Administrator is not satisfied that no unacceptable adverse effect will 
occur, the Regional Administrator will publish a notice in the Federal 
Register of his proposed determination, soliciting public comment, and 
offering opportunity for a public hearing. Today's notice represents 
this step in the process.
    Following the public hearing and close of the comment period, the 
Regional Administrator will decide whether to withdraw his proposed 
determination or prepare a recommended determination. A decision to 
withdraw a proposed determination may be reviewed at the discretion of 
the Assistant Administrator for Water at EPA Headquarters. If the 
Regional Administrator prepares a recommended determination, he then 
forwards it and the complete administrative record compiled in the 
Regional Office to the Assistant Administrator for Water. The Assistant 
Administrator makes the final determination affirming, modifying, or 
rescinding the recommended determination.
    EPA Region III recognizes this action represents one of the few 
times EPA has initiated a Section 404(c) action to withdraw 
specification after a permit has been issued by the Department of the 
Army. It is EPA's preference to initiate procedures pursuant to Section 
404(c) prior to permit issuance. Nevertheless, Section 404(c) 
authorizes EPA to withdraw use of a defined area for specification, and 
therefore, EPA has the ability to initiate a Section 404(c)

[[Page 16791]]

action after permit issuance. As set forth in the Preamble to EPA's 
implementing regulations, EPA recognizes the seriousness of initiating 
a Section 404(c) action after the Corps has issued a permit and does so 
only when unacceptable impacts from the project are of commensurate 
seriousness. In addition, EPA recognizes that a portion of the project 
located in the Seng Camp Creek subwatershed already has been 
constructed pursuant to the permit issued by the Department of the 
Army. This action is not intended to withdraw or restrict specification 
to the extent that dredged or fill material already has been discharged 
as of the date of this notice pursuant to a Department of the Army (DA) 
Permit No. 199800436-3 (Section 10: Coal River).

II. Project Description and Background

A. Project History

    The Spruce No. 1 mining project is a proposed mountaintop mining 
operation with valley fills (MTM/VF). In this type of mining operation, 
forests on the mined site are cleared and stripped of topsoil, and 
explosives are used to break up tops of mountains to expose the coal 
seams. Excess overburden is pushed into adjacent valleys, where it 
buries streams. The Spruce No. 1 Mine as currently authorized by DA 
Permit No. 199800436-3 (Section 10: Coal River), is one of the largest 
mountaintop mining projects ever authorized in West Virginia and 
includes six valley fills. The proposed Spruce No. 1 Mine was 
originally advertised as a Hobet Mining Inc. project, a subsidiary of 
Arch Coal, Inc. Effective December 31, 2005, Arch Coal, Inc. 
transferred Spruce No. 1 Mine holdings and responsibilities to its 
Mingo Logan Coal Company (Mingo Logan) subsidiary. The project as 
originally proposed in 1998, would have directly impacted a total 
footprint area of 3,113 acres and 57,755 linear feet (more than ten 
miles) of stream (not including indirect impacts to remaining 
downstream waters). At that time, the Corps approved the project under 
a nationwide permit, which was subsequently enjoined by a federal 
district court. As a consequence of that action, the Corps retracted 
the previously proffered nationwide permit for the project, and the 
permittee, Mingo Logan, advised the Corps it would submit an individual 
permit application. Because the decision whether to issue the permit 
was a major federal action with potential to significantly affect the 
quality of the human environment, an Environmental Impact Statement 
(EIS) was prepared for the Spruce No. 1 project by the Army Corps of 
Engineers Huntington District pursuant to the National Environmental 
Policy Act, 42 U.S.C. 4332(C). The original project application also 
launched events that led to the Interagency Mountaintop Mining/Valley 
Fills in Appalachia Programmatic EIS which was finalized in October 
2005 (PEIS). The PEIS is available at https://www.epa.gov/Region3/mtntop/eis2005.htm.
    In accordance with Section 309 of the Clean Air Act (CAA), EPA 
reviews all EISs and provides comments to the lead agency, in this 
case, the Corps' Huntington District, that identify and recommend 
corrective actions for significant environmental impacts associated 
with the proposal. EPA also reviews the adequacy of information and 
analyses contained in the EIS, as needed to support this objective. The 
initial 2002 Spruce No. 1 Draft EIS evaluated a project similar in 
scope and size to the original project. EPA's review of the Draft EIS 
found gaps in the analyses of the proposed mine and related adverse 
environmental impacts. EPA was particularly concerned by the lack of 
information regarding the nature and extent of impacts to the high 
quality streams that would be buried under valley fills, and 
recommended additional evaluation to support the analysis of less 
environmentally damaging alternatives. EPA Region III, in a letter 
dated August 12, 2002, indicated the EIS contained inadequate 
information for public review and decision-makers.
    Partly as a result of EPA's concerns, a revised 2006 Spruce No. 1 
Draft EIS was prepared and the project was reconfigured to reduce 
impacts. The permittee, Mingo Logan, revised the plan to avoid impacts 
to White Oak Branch, a very good quality stream and the project area 
was reduced from 3,113 to 2,278 acres with direct stream impacts 
reduced to 7.48 miles. According to the 2006 EIS, the proposed project 
would include mining an average of 2.73 million tons of bituminous coal 
annually via mountaintop mining methods. The Spruce No. 1 Mine would 
result in a total surface disturbance of 2,278 acres of land and 
discharge of approximately 110 million cubic yards of dredged and fill 
material into waters of the United States over a period of 15 years.
    In its June 16, 2006, letter of comment on the 2006 Draft EIS, EPA 
recognized that impacts from the proposed mine had been reduced and the 
quality of EIS information had improved. However, the letter also noted 
that EPA had remaining environmental concerns associated with the 
proposed Spruce No. 1 Mine, including potential adverse impacts to 
water quality (specifically, the potential to discharge selenium and 
the known correlation between similar mining operations and degradation 
of downstream aquatic communities), uncertainties regarding the 
proposed mitigation, need for additional analysis of potential 
environmental justice issues, and lack of study related to the 
cumulative impact of multiple mining operations within the Little Coal 
River watershed. EPA continued to stress its belief that corrective 
measures should be required to reduce environmental impacts and that 
other identified information, data, and analyses should be included in 
the final EIS.
    Concerns regarding the Spruce No. 1 project were also raised by the 
U.S. Fish and Wildlife Service (FWS), Ecological Services West Virginia 
Field Office in a letter dated May 30, 2006 from the Department of 
Interior, Philadelphia to the Huntington District Army Corps of 
Engineers. In that letter, the FWS expressed concerns over the 
permittee's compensatory mitigation plan. The FWS claimed there was 
inadequate compensatory mitigation proposed for the project because the 
assessment methodology used by the permittee to evaluate stream impacts 
considered only the physical characteristics of the impacted streams, 
without considering the equally important biological or chemical 
characteristics. The FWS expressed concern the project would impact 
healthy, biologically functional streams and the proposed mitigation 
included erosion control structures designed to convey water that would 
not replace the streams' lost ecological services.
    The Corps issued the Spruce No. 1 Final EIS on September 22, 2006. 
On October 23, 2006, EPA commented on the Final EIS, noting continuing 
concerns with the proposed project's contribution to cumulative impacts 
within the Little Coal River watershed, and highlighting concerns over 
adequacy of mitigation proposals and limited analyses of potential 
impacts to low-income and minority communities. In a letter dated 
November 30, 2006, EPA offered its assistance to the Corps in 
developing a stream functional assessment protocol and willingness to 
work with Mingo Logan through EPA's Conflict Prevention and Resolution 
Center to develop a cumulative impact assessment and watershed 
restoration plan for the Little Coal River watershed.
    Despite concerns raised by EPA and the FWS, on January 22, 2007, 
the Corps issued a Clean Water Act Sec.  404 Permit (DA Permit No. 
199800436-3 (Section 10: Coal River)) to Mingo Logan for its

[[Page 16792]]

Spruce No. 1 Mine. On January 30, 2007, a number of environmental 
groups filed a complaint against the Corps in federal district court 
challenging its decision to issue the permit. That litigation remains 
pending.
    In addition to its DA Permit No. 199800436-3 (Section 10: Coal 
River), the project received authorizations from the West Virginia 
Department of Environmental Protection (WVDEP), including authorization 
pursuant to the State's surface mining program approved under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 
1201-1328 (SMCRA permit), and a National Pollutant Discharge 
Elimination System (NPDES) permit for discharges of pollutants from 
25\1\ outfalls pursuant to Section 402 of the Clean Water Act, 33 
U.S.C. 1342.
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    \1\ In the most recent NPDES permit (WV1017021) issued August 8, 
2007, the outfalls number up to 28, but there are no outfalls 
numbered 11, 13, or 16.
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    In early 2007, Mingo Logan commenced limited operations on Spruce 
No. 1 pursuant to DA Permit No. 199800436-3 (Section 10: Coal River) 
subject to an agreement with the environmental groups who are 
plaintiffs in the litigation. Pursuant to that agreement, Mingo Logan 
has been operating in a portion of the project in the Seng Camp Creek 
drainage area, including construction of one valley fill. Under the 
agreement, Mingo Logan must give plaintiffs 20 days' notice before 
expanding operations beyond the area subject to the agreement, and has 
done so once without objection from the plaintiffs.

B. Project Description

    The project as authorized is located in the East District of Logan 
County, West Virginia at Latitude 38[deg]52[min]39[sec] and Longitude 
81[deg]47[min]52[sec] depicted on the United States Geological Survey 
7.5-minute Clothier and Amberstdale Quadrangles. The mine site is 
located approximately two miles northeast of Blair, in Logan County, 
West Virginia. The project as authorized would result in discharge of 
dredged or fill material into Right Fork of Seng Camp Creek, 
Pigeonroost Branch, Oldhouse Branch, and several of their unnamed 
tributaries (hereafter, references to Seng Camp Creek, Pigeonroost 
Branch, and Oldhouse Branch also include all tributaries to those 
waters that would be impacted by the project as authorized). Streams 
on-site exhibit surface water connections to Spruce Fork of the Little 
Coal River, which ultimately flows into the Coal River, a navigable 
(Section 10) water of the United States.
    The Spruce No. 1 project would result in a total surface 
disturbance of 2,278 acres of land with approximately 500 acres 
actively mined at any one time, based on sequential backfilling and 
concurrent reclamation of mined areas. The mining process would remove 
400 to 450 vertical feet or 501 million cubic yards of overburden 
material. Nearly 391 million cubic yards would be placed within the 
mined area and the remaining 110 million cubic yards placed in 6 
proposed valley fills. The proposed Spruce No. 1 Mine would result in 
the discharge of approximately 110 million cubic yards of dredged and 
fill material into waters of the United States over a period of 15 
years. A detailed discussion of Spruce No. 1 project can be found in 
the 2006 Spruce No. 1 Draft EIS on pages 2-35 through 2-61.
    According to its Draft EIS, the Spruce No. 1 project is a 
mountaintop mining project targeting bituminous coal seams overlying 
and including the Middle Coalburg coal seam in the western portion of 
the proposed project area. In the eastern portion of the project area, 
mountaintop mining would be limited to those seams including and 
overlying the Upper Stockton seam, with contour mining in conjunction 
with auger and/or highwall/thin-seam mining utilized to recover the 
Middle Coalburg seam. The project would disturb a total of 2,278 acres 
and recover seventy-five percent (75%) of the coal reserve targeted for 
extraction within the project area during fifteen (15) phases. The 
applicant describes its proposal as placing dredged and fill material 
into approximately 0.12 acre of emergent wetland, 10,630 linear feet 
(1.83 acres) of ephemeral stream channels (all permanent), and 28,698 
linear feet (6.12 acres) of intermittent stream channels (26,184 linear 
feet [5.77 acres] permanent and 2,514 linear feet [0.35 acre] 
temporary), and 165 linear feet (0.034 acre) of perennial stream 
channel (all temporary), in conjunction with the construction, 
operation and reclamation of the Spruce No.1 Mine [Surface Mining 
Control and Reclamation Act (SMCRA) Permit S-5013-97, Incidental 
Boundary Revision (IBR) 2]. As set forth more fully below, EPA does not 
agree that the Spruce No. 1 EIS accurately describes and quantifies 
stream resources that will be impacted. The foregoing summary of 
impacts from the Spruce No. 1 EIS is set forth here for descriptive 
purposes.
    Including operations being conducted in the Seng Camp Creek area 
(including construction of Fill 1A), the mining plan is described in 
the Spruce No. 1 EIS as a fifteen-phase mining and reclamation plan, 
which generally includes ``Construction'' (Phases 1 and 2), 
``Operations'' (Phases 3-13), and ``Closure and Reclamation'' (Phases 
14-15). As initially proposed, the phases are described in the Spruce 
No. 1 EIS. DA Permit No. 199800436-3 (Section 10: Coal River) which 
authorizes construction of six valley fills: Valley Fills 1A and 1B in 
Seng Camp Creek; Valley Fills 2A, 2B, and 3 in Pigeonroost Branch; and 
Valley Fill 4 in Oldhouse Branch, and numerous sedimentation ponds, 
minethroughs and other fills.
    Additional components of the project include requirements for 
compensatory mitigation to offset adverse project impacts. The November 
2006 Compensatory Mitigation Plan (CMP) submitted by Mingo Logan 
describes on-site, in-kind mitigation at a minimum 1:1 ratio on a 
linear footage basis to compensate for permanent and temporary impacts 
to waters of the United States through stream channel reclamation and 
off-site mitigation. This mitigation is intended to restore, 
reconstruct, or enhance segments of Spruce Fork and Rockhouse Creek. 
On-site compensation would include restoration of 7,132 linear feet of 
stream segments temporarily impacted by sedimentation ponds, and 
creation of 43,565 linear feet of stream channel within the project 
area. Off-site compensation includes stream enhancements (11,272 linear 
feet) to Spruce Fork and Rockhouse Creek through a combination of 
physical, aquatic habitat, and stream stabilization improvements. The 
CMP proposes to direct surface water flow from the project area in 
existing drainage ways to promote the development of more defined 
channels, thus creating 26,625 linear feet of streams (existing, non-
jurisdictional drainageways).

III. Characteristics and Functions of the Impacted Resources

    The project will be located in Logan County, West Virginia. Logan 
County is located in the Cumberland Plateau and the Mountains Major 
Land Resource Area, which is dominated by very steep, rugged side 
slopes, which are broken by strongly sloping to steep ridgetops and 
very narrow bottoms along streams. The project site is predominantly 
forested. The nearest town is Blair, located 2 miles away. The project 
would be located in the Coal River sub-basin. The project as authorized 
would directly impact (by discharge of fill material) the Right Fork of 
Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch and several of 
their unnamed

[[Page 16793]]

tributaries. These on-site streams are tributaries of and exhibit 
surface water connections to Spruce Fork of the Little Coal River, 
which ultimately flows into the Coal River.
    The following subsections describe the characteristics and 
functions of the resources that could be impacted if the Spruce No. 1 
Mine is constructed as currently authorized. Section IV then will 
describe the impacts that could be caused if the Spruce No. 1 Mine is 
constructed as currently authorized.
    While the following subsections discuss watershed and stream 
conditions and wildlife in separate sections, it is important to 
remember that the two are closely interrelated. Wildlife living in or 
depending upon streams will be adversely impacted by adverse changes in 
water quality.
    EPA derives its understanding of the potentially impacted resources 
and the predicted impacts of the project from several sources. The 
Draft (June 2003) and Final (October 2005) Interagency Mountaintop 
Mining/Valley Fills in Appalachia Programmatic EIS (PEIS) represent an 
important inter-agency effort designed to inform more environmentally 
sound decision-making for future permitting of mountaintop mining/
valley fills. It had a geographic focus of 12 million acres 
encompassing most of eastern Kentucky, southern West Virginia, western 
Virginia, and scattered areas of eastern Tennessee, and included the 
Spruce No. 1 project area and the Coal River sub-basin. EPA also 
consulted information gathered by the WVDEP, including an assessment of 
the Coal River sub-basin conducted in 1997, data collected to support 
the 2006 Coal River sub-basin total maximum daily load (TMDL),\2\ and 
WVDEP and nationally available GIS data. EPA also reviewed the 2006 
Spruce No.1 EIS, and other sources of data including studies conducted 
by EPA scientists and discharge monitoring reports generated by Mingo 
Logan. In addition, EPA consulted a wide range of peer-reviewed studies 
and literature. A Technical Support Document containing more specific 
data, maps of the watershed, and an index of references is included in 
the docket as supporting material.
---------------------------------------------------------------------------

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

A. Watershed and Stream Conditions

1. The Coal River Sub-Basin
    The Spruce No. 1 Mine project area is located in the unglaciated 
portion of the Appalachian Plateau physiographic province of West 
Virginia. The Appalachian Plateau province is where the majority of the 
mineable coal in WV is located. The specific project area is located 
within the upper headwaters of the Spruce Fork of the Little Coal River 
Watershed, which is a tributary of the Coal River.
    The Coal River sub-basin is a component of the larger Kanawha River 
Basin and encompasses nearly 891 square miles within West Virginia. 
Major tributaries include Marsh Fork, Clear Fork, Pond Fork, Spruce 
Fork, Little Coal River, and the Coal River.
    The Coal River sub-basin has approximately 283 miles of designated 
``high quality'' streams, which are designated as such because they 
have five or more miles of desirable warm water fish populations or 
have native or stocked trout populations that are utilized by the 
public. The Coal River Sub-basin has approximately 51 species listed as 
endangered, threatened or state rare species. Many of these species 
rely on the aquatic ecosystems for all or part of their life cycle.
    The Coal River sub-basin has been impacted by present and past 
surface mining. Based upon the National Land Cover Database (NLCD) 
change product for 1992-2001 and WVDEP's GIS mining files, more than 
257 past and present surface mining permits have been issued in the 
Coal River sub-basin, which collectively occupy more than 13% of the 
land area. Some sub-watersheds in the Coal River sub-basin have more 
than 55% of the land occupied by surface mine permits. Trend analysis 
indicates mountaintop mining and valley fills as a percentage of the 
land cover will continue to increase in the Coal River sub-basin.
    In 1997, the West Virginia Department of Environmental Protection 
(WVDEP) performed its first comprehensive ecological assessment of the 
Coal River sub-basin. WVDEP assessed three major aspects of watershed 
health when it performs an ecological assessment: water quality, 
habitat condition, and benthic macroinvertebrate community status. The 
subsequent report, An Ecological Assessment of the Coal River Watershed 
(1997), indicated that sediments, coal mining and inadequate sewage 
treatment were the major stressors on streams in this watershed. As a 
result of that assessment WVDEP identified as a priority the need to 
``[l]ocate and protect the few remaining high quality streams in the 
Coal River watershed. * * *'' The assessment indicates that because the 
watershed is becoming increasingly impaired due to stressors such as 
mining there is a great need to protect the remaining quality 
resources.
    The 1997 WVDEP assessment reported that the Little Coal River 
watershed (including the Little Coal River, Spruce Fork, and Pond Fork) 
had a higher rate of impairment (defined as failure to achieve 
compliance with water quality standards, including the aquatic life use 
and narrative criteria) than areas elsewhere in the Coal River sub-
basin.
    WVDEP collected additional biological and chemical data throughout 
the Coal River sub-basin in 2002-2003 in order to investigate causes 
and sources of impairments and to develop Total Maximum Daily Loads 
(TMDLs). These assessments indicated numerous impairments caused by 
mining related and other pollutants throughout the Coal River watershed 
and the Spruce Fork sub watershed.
2. The Spruce Fork Sub-Watershed
    The Spruce No. 1 Mine is located in the Spruce Fork sub-watershed. 
As authorized, the Spruce No. 1 Mine would impact substantially all of 
the Right Fork of Seng Camp Branch, Pigeonroost Branch and Oldhouse 
Branch, all of which are tributaries of and flow to Spruce Fork. Spruce 
Fork is a fourth order tributary that combines with Pond Fork to form 
the Little Coal River. Spruce Fork is located in the southwestern 
portion of the Coal River watershed and drains approximately 126.4 
square miles. The dominant landuse in the Spruce Fork watershed is 
forest. Other important landuse types include urban/residential and 
barren/mining land. The Spruce Fork watershed lies entirely within the 
Central Appalachian Ecoregion. This ecoregion is more rugged and 
forested and is cooler than the Western Allegheny Plateau Ecoregion to 
the north. Extraction of coal, oil, and natural gas is common and has 
degraded stream habitat in much of this ecoregion. However, some small 
streams disturbed by past logging or ongoing oil/gas extraction, such 
as those located in and around the Spruce No. 1 impact area (including 
Oldhouse Branch), still function at a high level and are currently of 
reference quality based on WVDEP reference criteria.
    The Spruce Fork sub-watershed has been impacted by past and present 
surface mining activity. According to WVDEP Division of Mining and 
Reclamation (DMR) permit maps, within the Headwaters Spruce Fork 
subwatershed there are more than 34 past and present surface mine 
permits issued which collectively occupy more than 33% of the land 
area. Trend analysis indicates mountaintop mining and valley fills as a 
percentage of the

[[Page 16794]]

land cover will continue to increase in the Headwaters Spruce Fork sub-
watershed and forest area will continue to decrease as a result. From 
1992 to 2009 forest coverage has decreased from approximately 73% to 
61% and can be expected to decrease to 53% of the sub-watershed in the 
reasonably foreseeable future.
    The EPA sampled several streams within the Spruce Fork sub-
watershed for the previously referenced interagency PEIS. The results 
of the PEIS studies indicate that the streams within and near the 
project area are currently good quality streams based on the benthic 
macroinvertebrate and water quality data.
    Focusing on the Spruce No. 1 project area, the streams that will be 
filled, particularly Oldhouse Branch and Pigeonroost Branch, are 
generally healthy, functioning streams with good water quality. A 
useful comparison is to the nearby White Oak Branch. White Oak Branch, 
which flows into Spruce Fork upstream of the Spruce No. 1 Mine site, 
was identified from the WVDEP 1997 surveys as a high quality stream. 
White Oak Branch was part of the original Spruce No. 1 impact area but 
was subsequently avoided when the project was reconfigured because of 
it high quality designation. WVDEP has, in fact, adopted White Oak 
Branch as a reference site and has stated that ``It is also important 
that the agency make a concerted effort to find the apparently few 
remaining streams within the watershed that have not been significantly 
impacted by human disturbances.''
    Oldhouse Branch, which would be filled if the Spruce No. 1 Mine is 
constructed as currently authorized, lies adjacent to White Oak Branch 
and exhibits similar healthy biological diversity and water quality 
(U.S. EPA data). Using the West Virginia Stream Condition Index 
(WVSCI), an assessment method developed for use in West Virginia to 
help evaluate the health of benthic macroinvertebrate communities at 
the family level in wadeable streams, both Oldhouse Branch and White 
Oak Branch scored comparably well, meaning that both were of similar 
quality and supporting similar aquatic communities. The two streams 
also score comparably well when the benthic macroinvertebrate community 
is considered at the genus (as opposed to family) level. For instance, 
Oldhouse Branch shared 55 total genera (many of them pollution 
intolerant) with White Oak Branch (EPA data) indicating a diverse and 
healthy aquatic community in Oldhouse Branch similar to the high 
quality communities of White Oak Branch.
    Pigeonroost Branch, which also would be filled if the Spruce No. 1 
Mine is constructed as currently authorized, also shares many 
macroinvertebrate genera (many of them pollution intolerant) in common 
with the high quality community in White Oak Branch, again indicating 
the comparable health of the aquatic community in Pigeonroost Branch. 
The WVSCI assessment of Pigeonroost indicates water quality is 
relatively good despite some minor historic mining in the watershed.
    The DA Permit also authorizes placement of fill into Right Fork 
Seng Camp Creek. While the WVSCI assessment of the lower Seng Camp 
Creek does not indicate a high quality designation, benthic data 
available to EPA show that many sensitive aquatic insects occur in the 
forested headwater reaches of the tributaries of Seng Camp Creek 
(Valley Fill 1B).
    In summary, the streams that would be filled if the Spruce No. 1 
Mine were constructed as authorized by the DA permit are high 
functioning streams supporting healthy aquatic communities. By way of 
comparison, Oldhouse Branch and Pigeonroost Branch are healthier than 
other streams in the Spruce Fork sub-watershed that have been impacted 
by mining operations similar to the Spruce No. 1 Mine. The 2006 and 
2008 WVDEP 303(d) lists of impaired waters\3\ and the 2006 TMDL report 
for the Coal River sub-basin indicate that several streams in the 
Spruce Fork watershed are impaired and already have TMDLs developed for 
mining related pollutants which include selenium, iron and aluminum. 
Four of these impaired streams are directly northwest of the Spruce No. 
1 project, on the west side of Spruce Fork, and in part, are impacted 
by the Mingo Logan Dal-Tex Mining Operation. Spruce Fork itself, which 
will receive discharges flowing from the Spruce No. 1 project, is 
already listed as impaired by mining related pollutants. Seng Camp 
Creek, a tributary to Spruce Fork, which will be directly impacted by 
and will drain the Spruce No. 1 project, also has documented water 
quality impairments.
---------------------------------------------------------------------------

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

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

B. Wildlife

    The Central Appalachians ecoregion where the Spruce No. 1 project 
will be located has some of the greatest aquatic animal diversity of 
any area in North America, especially for species of amphibians, 
fishes, mollusks, aquatic insects, and crayfishes. Salamanders in 
particular reach their highest North American diversity in the Central 
Appalachian ecoregion. The area includes one of the most prominent 
biodiversity hot spots identified by the Nature Conservancy. It has 
been documented that other specialized wildlife such as some 
neotropical migrant birds and forest amphibians rely on the natural 
headwater stream condition and adjacent forest types exhibited by 
Pigeonroost Branch and Oldhouse Branch for maintenance of their 
populations.
1. Invertebrates
    In a body of water, benthic macroinvertebrates are the bottom-
dwelling (benthic) organisms that are large enough to be seen without 
the aid of microscopes (macro), and are not equipped with backbones 
(invertebrate). Freshwater macroinvertebrates, such as mayflies and 
stoneflies, serve as indicators of ecosystem health, and play a vital 
role in food webs and in the transfer of energy in river systems. These 
organisms essentially convert plant material into food sources (fats 
and proteins) essential for the maintenance of healthy fish and 
amphibian populations, and for foraging terrestrial vertebrates such as 
birds, bats, reptiles, and small mammals. Because of their productivity 
and secondary position in the aquatic food chain, macroinvertebrates 
play a critical role in the delivery of energy and nutrients along a 
stream continuum. They also are instrumental in cleaning excess living 
and nonliving organic material from freshwater systems, a service that 
contributes to the overall quality of the resource.
    Stream order typically dictates the community structure of the 
resident aquatic life. Headwater streams harbor primarily benthic 
macroinvertebrate communities. In the southern Appalachian Mountains, 
macroinvertebrates of several orders including Ephemeroptera, 
Plecoptera and Trichoptera (mayflies, stoneflies and caddiflies, all 
pollution sensitive groups), have been found to be rich in species, 
including many endemic species and species considered to be rare. This 
diversity and unique

[[Page 16795]]

assemblage has been attributed to the unique geological, climatological 
and hydrological features of this region.
    Macroinvertebrates are good indicators of watershed health and are 
used by West Virginia, states in the Mid-Atlantic and nationally to 
determine compliance with water quality standards. They are good 
indicators because they live in the water for all or most of their 
life. Macroinvertebrates can be found in all streams, are relatively 
stationary and cannot escape pollution. They also differ in their 
tolerance to the amount and types of pollution. Macroinvertebrate 
communities integrate the effects of stressors over time and some taxa 
(i.e., taxonomic category or group such as phylum, class, family, 
genus, or species) are considered pollution-tolerant and will survive 
in degraded conditions. Some taxa are pollutant-intolerant and will die 
when exposed to certain levels of pollution. Thus, the composition of 
communities informs scientists about the quality of the water.
    Different taxa are more sensitive to pollution and other stressors 
than other taxa. In a healthy stream, one would expect to find a high 
diversity of taxa and a large number of different taxa including 
species that are more sensitive to (i.e., less tolerant of) stressors. 
Using the mayfly as an example, some genera of mayfly are more 
sensitive than others. The presence of a large number of individuals 
from the more sensitive mayfly genera indicates good water quality 
conditions.
    Mayflies (Insecta: Ephemeroptera) in particular have long been 
recognized as important indicators of stream ecosystem health. Mayflies 
are a very important part of the native organisms in these streams. In 
Appalachian headwater streams, they routinely make up between 30%-50% 
of the insect assemblages in certain seasons. Numerous studies 
demonstrate that mayfly community structure reflects the chemical and 
physical environment of watercourses.
    Not only do trout rely on mayflies and stoneflies, but a group of 
colorful benthic fishes known as Darters (Percidae) feed primarily on 
mayflies. A dietary study of small stream fishes in the Appalachian 
coalfields of Kentucky showed that gut contents of several darters 
contained mostly mayflies. Darters are an important part of the fish 
assemblage and many are hosts for mussel larvae. Several darter species 
inhabit Spruce Fork in the immediate vicinity of the project area.
    Sampling data included in the PEIS, the Spruce No. 1 EIS and from 
the WVDEP monitoring database indicate that macroinvertebrates are 
diverse in the Spruce No. 1 project area. This diversity suggests that 
the streams in the project area are healthy. Data collected in Oldhouse 
Branch indicates that the quality of the macroinvertebrate community in 
Oldhouse Branch is in the top 5% of all streams in the Central 
Appalachia ecoregion. In 1999-2000, EPA collected eighty-five (85) 
macroinvertebrate genera in riffle complexes of Pigeonroost Branch and 
Oldhouse Branch. Data from EPA and the permittee's consultants (Sturm 
Env. Services, BMI, Inc.) from the Spruce No. 1 EIS show that 
collectively, Pigeonroost, Seng Camp, and Oldhouse Branch contain a 
high number of sensitive mayfly genera and individuals. A total of 21 
genera have been identified from these three headwater streams, 
indicating that these systems offer high water quality and habitat. 
Many of these mayfly genera are not shared with the receiving Spruce 
Fork, making these headwater streams unique to the permit area (those 
few genera shared with Spruce Fork are moderately pollution-tolerant 
genera such as Baetisca, Baetis, and Isonychia). This count represents 
only an estimate of mayfly richness in these streams; several other 
genera have been found by WVDEP in other Spruce Fork tributaries and 
are potentially present in the project area. As many as nine genera of 
mayflies have been collected in Oldhouse Branch in any one season-
specific sample, with an average of seven genera across multiple 
samples. These data, cited above, are significant and indicate that 
less than 5% of all other streams in this ecoregion have more mayflies 
than Oldhouse Branch. Previous government and academic research on the 
effects of Appalachian coal mining on mayfly communities indicate that 
the Spruce No. 1 Mine may eradicate most of the species currently 
occupying the project area and in the immediate downstream receiving 
waters.
    Stoneflies (Plecoptera) also represent an important group of 
aquatic insects in the structure and functioning of stream ecosystems. 
Stoneflies fill important trophic roles in stream ecosystems, as 
displayed by their detritivory (decomposers) and predatory nature. 
Stoneflies are primarily stenothermic, meaning they require cool to 
cold water and high oxygen concentration to survive. Data compiled from 
EPA, WVDEP, and the permittee's consulting firms show that Oldhouse, 
Pigeonroost, and Seng Camp collectively yielded 16 genera of 
stoneflies. Oldhouse and Pigeonroost both had 11 genera. Only 2% of 
stream samples in all of Central Appalachia had more stonefly genera 
than Oldhouse within a single sampling event.
    Based on this information, the headwater streams draining the 
proposed Spruce No. 1 project area appear to contain high richness and 
abundance of sensitive macroinvertebrate wildlife and indicate a 
healthy aquatic ecosystem that is vital to downstream waters and the 
fish and wildlife that depend on them. Moreover, because of the high 
degree of taxonomic similarity between these streams and White Oak 
Creek (a DEP-designated high quality water), and the strong evidence 
that many of the sensitive taxa have been eliminated from the adjacent 
Dal-Tex mine discharges, EPA believes that as proposed, the Spruce No. 
1 Mine could cause or contribute to unacceptable degradation of this 
sensitive aquatic life and the ecosystem that depends on them.
2. Vertebrates
    Two important groups of vertebrates, fish and salamanders, are the 
major stream-dwelling vertebrates in the project area.
a. Salamanders
    Salamanders are a diverse and unique form of Appalachian wildlife 
and are an important ecological component in the mesic forests of the 
ecoregion. Ecologically, salamanders are intimately associated with 
forest ecosystems acting as predators of small invertebrates and 
serving as prey to larger predators. They are often the most abundant 
group of vertebrates in both biomass and number. Some species of 
salamanders are aquatic; others are semi-aquatic, splitting their lives 
between forests and headwaters and depending upon intact forest-
headwater connections for movement. Typically, salamanders occupy 
small, high-gradient headwater streams while fish occur farther 
downstream.
    The PEIS identified thirty-one (31) species of salamanders in the 
West Virginia portion of the study area. Of these, 21 species are known 
to occupy cove hardwood forests while 25 species are known to inhabit 
mixed mesophytic hardwood forests like those present within portions of 
the Spruce No. 1 project area. Petranka (1993) presented a conservative 
estimate that there are about 4,050 salamanders per acre of mature 
forest floor in Eastern forests. Twice as many larval salamanders are 
estimated to occur (~8,000/acre) in these same areas.
    The southern Appalachians, where the Spruce No. 1 project is 
located, have

[[Page 16796]]

one of the richest salamander fauna in the world. Nearly ten percent of 
global salamander diversity is found within streams of the southern 
Appalachians. Most of the species found in the project area belong to 
the family Plethodontidae, the lungless salamanders, which require high 
moisture retaining leaf-litter, dense shade, and cool flowing streams 
to survive and reproduce.
    With respect to the Spruce No. 1 project area, salamanders have 
been surveyed in White Oak Branch. White Oak Branch had good numbers of 
Northern Dusky (9 adult, 7 larvae), Appalachian Seal (15 adult, 12 
larvae), and Two Lined salamanders (1 adult and 15 larvae). Although 
not specifically sampled, the salamander populations in Pigeonroost and 
Oldhouse Branch are likely very similar to those in White Oak Branch. 
Applying these numbers from White Oak Branch, EPA would expect abundant 
and diverse salamander populations (~5 per square meter) in the project 
area.
b. Fish
    WVDNR fish assemblage data in the mainstem of Spruce Fork indicate 
that the fishery is in relatively good condition, and that it is an 
important ecological and recreational resource that should be 
protected. Spruce Fork is a locally important rock bass and smallmouth 
bass fishery. Rock bass and smallmouth bass are moderately sensitive 
gamefish species. Although impacted by mining, fish assemblage data 
collected in 2007 in the mainstem of Spruce Fork indicate that the 
assemblage is still in relatively good condition.
c. Birds
    Many terrestrial species depend on the headwater streams like those 
of the Spruce Fork for their survival. The ecotone (transition area) 
between terrestrial and aquatic habitats results in diverse flora and 
fauna. For example, unique avifauna assemblages can be found along the 
riparian zone of headwater streams. The Acadian flycatcher (Empidonax 
virescens) is commonly encountered throughout the region, but despite 
the large expanse of existing forest habitat, it is primarily 
restricted to forested tracts with understory vegetation along small 
headwater streams, where it can feed on emergent aquatic insects. 
Spruce Fork [appears to] meet[s] these habitat requirements. 
Neotropical migrant songbirds are also often attracted to headwater 
streams for breeding areas because of the diversity of the habitat and 
the availability of emergent aquatic insects.
    The Louisiana waterthrush (Seirus motacilla), another neotropical 
migrant song bird, is considered an obligate headwater riparian 
songbird (an example of water-dependent wildlife) because its diet is 
comprised predominantly of immature and adult aquatic 
macroinvertebrates found in and alongside these streams and it builds 
its nest in the stream banks. Breeding waterthrushes nest and forage 
primarily on the ground along medium- to high-gradient, first- to 
third-order, clear, perennial headwater streams flowing through closed-
canopy forest. Good water quality is a key component of the species 
breeding habitat. Headwater streams like those of Spruce Fork that 
support healthy macroinvertebrate communities would be important food 
sources for species such as the Louisiana waterthrush.
    The Appalachian Mountain Bird Conservation Region (AMBCR), which 
extends from southeastern New York south to northern Alabama, is 
thought to support a substantial portion of the Louisiana waterthrush's 
breeding population, perhaps as much as 45 percent. West Virginia, the 
only state that lies entirely within the AMBCR, encompasses the largest 
contiguous area of high relative breeding abundance over the species' 
entire breeding range, based on North American Breeding Bird Survey 
(BBS) data from 1994-2003. The West Virginia population may serve as a 
source for populations elsewhere in the breeding range. The Louisiana 
waterthrush is also an area-sensitive species, requiring undisturbed 
forest tracts of 865 acres to sustain a population. The most effective 
management protocol for the Louisiana waterthrush would appear to be 
protection of forest tracts and water systems inhabited on both 
breeding and wintering areas particularly moderate- to high-gradient 
headwater streams, which compose 75-80% of stream length in a typical 
watershed
    Bird species that rely on mature forest habitats that are on the 
Audubon watch list as declining species and are listed as probable in 
the area include the Swainson warbler (Limnothlypis swainsonii), 
Kentucky warbler (Oporornis formosus), and Cerulean warbler (Dendroica 
cerulean). The woodthrush was a confirmed breeder in this area and is 
declining at 1.7% per year, according to the Audubon Watch List. A 
primary cause of the decline is forest fragmentation, which leads to 
increased nest parasitism by the brown headed cowbird (Molothrus ater).
    The Cerulean warbler in particular is considered an area-sensitive 
species; it is thought to require large (730 sq miles) tracts of mature 
interior forest habitat to support stable breeding populations. It is a 
canopy-foraging insectivorous neotropical migrant songbird that breeds 
in mature deciduous forests with broken, structurally-diverse canopies 
across much of the eastern United States and winters in middle 
elevations of the Andes Mountains of northern South America. Important 
among a number of breeding season constraints are the loss of mature 
deciduous forest, particularly along stream valleys, and fragmentation 
and increasing isolation of remaining mature deciduous forest. The 
cerulean warbler appears to be more sensitive than most other North 
American birds to landscape-level changes in habitat. The U.S. Fish and 
Wildlife Service has designated the cerulean warbler a Species of 
Management Concern and a Species of Conservation Concern throughout its 
range. It has also been preliminarily designated by the Appalachian 
Mountains Joint Venture as a Species of Highest Conservation Priority 
within the Appalachian Mountains Bird Conservation Region, which 
encompasses West Virginia. The AMBCR is thought to support about 80 
percent of the species' entire breeding population, and the AMBCR 
breeding population likely functions as a source for populations 
elsewhere in the breeding range.
d. Bats
    Thirteen species of bats are found in West Virginia. Most North 
American bats are insectivorous, which capture their prey by foraging 
on the wing, catching flying insects from a perch, or collecting 
insects from plants.
    Different species of bats often have distinct life history traits 
and behaviors. Some bats are solitary and hang in tree foliage, attics, 
barns, and other protected places during the day. Other bats are 
colonial and cluster in caves and mine tunnels. Bats have one of the 
slowest reproductive rates for animals their size. Most bats in 
northeastern North America have only one or two pups a year and many 
females do not breed until their second year. This low reproductive 
rate is somewhat offset by a long life span, often over 20 years. The 
little brown bat, common in North America and in West Virginia, is the 
world's longest lived mammal for its size, with a maximum life span 
over 32 years.
    During the winter, some bats migrate south in search of food, while 
others hibernate through the cold weather when insects are scarce. Bats 
that do

[[Page 16797]]

migrate usually travel less than 200 miles, often following the same 
routes as migratory birds.
    Species that have potential to be found in the area of south-
central West Virginia include the northern bat (Myotis 
septentrionalis), big brown bat (Eptesicus fuscus), red bat (Lasiurus 
borealis), eastern small-footed bat (Myotis leibii), Virginia big-eared 
bat (Corynorhinus townsendii virginianus) and the Indiana bat (Myotis 
sodalis). Both the Indiana and Virginia big-eared bats are listed as 
endangered under the Endangered Species Act.
    Indiana bats have been described as once one of the most common 
mammals in the eastern United States. Between 1960 and 2004, biologists 
have documented a 56 percent population decline in Indiana bats. 
Indiana bats feed solely on emerged aquatic and terrestrial flying 
insects. They are habitat generalists and their selection of prey 
reflects the environment in which they forage. In a study in the 
Allegheny Mountains, activity in non-riparian upland forest and forests 
in which timber harvest had occurred was low relative to forested 
riparian areas. This evidence suggests that the forested riparian zones 
of the project area would be more suitable habitats for Indiana bat 
populations than active or restored mining sites.

IV. Basis for Proposed Determination

A. Section 404(c) Standards

    The CWA requires that exercise of the final Section 404(c) 
authority be based on a determination of ``unacceptable adverse 
effect'' to municipal water supplies, shellfish beds, fisheries, 
wildlife, or recreational areas. While EPA strongly prefers to initiate 
the Section 404(c) process prior to issuance of a permit, Section 
404(c) and EPA's implementing regulations clearly authorize EPA to 
initiate the Section 404(c) process after a permit has been issued.
    Section 404(c) authorizes the Administrator ``to prohibit the 
specification (including the withdrawal of specification) of any 
defined area as a disposal site.'' (emphasis added). Section 404(b) 
makes clear that disposal sites are specified for each permit by the 
Secretary of the Army (and such specification must be consistent with 
the 404(b)(1) Guidelines). Thus, EPA's implementing regulations make 
clear that under Section 404(c) ``the Administrator may exercise a veto 
over the specification by the U.S. Army Corps of Engineers or by a 
state of a site for the discharge of dredged or fill material.'' 40 CFR 
231.1(a); see also definition of ``withdraw specification,'' 40 CFR 
231.2(a).
    EPA's regulations at 40 CFR 231.2(e) define ``unacceptable adverse 
effect'' as:

    Impact on an aquatic or wetland ecosys