This is a text-only version of the document "Spruce No 1 Mine - Recommended Determination - Appendix 3 - 2010". To see the original version of the document click here.

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APPENDIX 3
Mitigation Issues SEP 274 ZME




Abstract


Five issues have been identified that demonstrate fundamental flaws with the proposed
attempts to mitigate for unavoidable environmental impacts of the Spruce No. 1 mine.
Although they were identified and briefly discussed in the Recommended Determination,
additional explanation and clarification is provided herein. (1) Severe misclassification of
the proposed impacted resource-nearly 27,000 feet of perennial stream is likely to be
directly affected compared to the mere 825 feet of perermial stream _reported by Mingo
Logan. The classification of streams determines the types of expected aquatic
communities, the degree in which structure and function are provided, and amount of
organic matter, nutrients, and pollutants ultimately retained or loaded to receiving
streams. These properties determine the amount of mitigation, restoration, and
compensation that would be required. (2) EPA believes that compensation for the
impacts to high quality headwater streams Within the Spruce mine area using enhanced
on-bench sediment ditches is inappropriate because the resulting aquatic physical,
chemical, and biological quality of “replacements” would likely be highly degraded.
These ditches represent a completely different aquatic systems, and thus will not
compensate forthe loss of high quality Appalachian headwater streams. (3) 0n-site
“restoration” of 11,000 feet and off-site “enhancement” of 7,000 feet of streams will not


provide compensation for buried streams. (4) The proposed riparian vegetation
restoration includes planting several tree species non-native to WV or atypical of the
riparian ecosystems found along Appalachian headwater streams. (5) Additional
compensation for buried streams usingmore than 26,000 feet of “connectivity channels
created by NPDES overflows will result in the export of degraded Water to forested
hillsides resulting in impaired downstream aquatic communities.


Misclassification of Stream Resources


As noted in the Recommended Determination, EPA believes that an adequate
compensatory mitigation plan should be based upon an accurate delineation of on-site
impacts to ephemeral, intermittent, and perennial stream-types in the Spruce Fork
Watershed. As the stream delineations originally completed forthe EIS are now nine
years old, EPA believes that new tield studies, using more up-to-date assessment tools,
would provide a more accurate representation ofthe proposed impacts to Water resources




Headwater streams are the small ephemeral, intermittent and perennial tributaries at the
head of watersheds. Definitions of ephemeral, intermittent and perermial streams vary
widely among regulatory agencies. Some of these definitions are based on arbitrary
watershed areas or flow cutoffs. The presence or absence of continuous surface Water
alone is not a good predictor of aquatic life potential.


Most scientists agree that classifying streams by single
for assessing aquatic life potential is unsatisfactory for








abiotie or hydrological parameters
several reasons. First,












hydrological parameters vary temporally and seasonally and can be difficult to measure
accurately. Second, severalabiotic parameters determine whether a stream can support
aquatic life (e.g. length of dry period, connectivity through subsurface or interstitial flow
presence and quantity of refugia) (Boulton 1989, Williams and Hynes 1977, Williams
1986, Williams 1987). Third, many aquatic invertebrates have generalized adaptations
for surviving periods of low or no surface flow (Williams 1996). Biological assemblage
data can indicate the long term hydrological characteristics of streams because many of
the species are long lived and require flowing Water for their life cycles. Consequently
biological data can be used in conjtmction with hydrologic data to more accurately
describe or confirm the long term hydrologic characteristics of streams.


Accurate estimation of the extent of headwater intermittent and perennial streams is often
problematic. For example, national or regional spatial coverage is generally known to
underestimate the _extent of headwaters. Within USEPA Region III, l:24,000 scale maps
generally indicate approximately 50% or more stream miles than larger scale, coarser
grained l:l00,000 scale maps. Moreover, complementary field verification can add
many more miles to the stream network. A


The USGS has documented the flow origin, drainage areas and hydrologic characteristics
of perennial and intermittent streams in this region in 2000 and 2001 (Paybins 2003).
Results indicated that the median drainage area upstream of the origin of intermittent
flow was 14.5 acres. USGS defined the intermittent point (i.e., the boundary between
ephemeral and intermittent flow), as the point where base flow begins in the late winter
or early spring. The median drainage area upstream of the origin of peremiial tlow was
found to be 40.8 acres. The boundary between intermittent and perennial flow (i.e., the
perennial point), was defined by the lowest water table elevation, where base flow begins
in the late summer and early August. These median drainage areas were used to
delineate the watersheds. Additionally, a flow accumulation model and the National
Elevation Dataset (NED) were used to estimate the stream lengths associated with
intermittent flow and peremiial flow in this region (Note: no attempt was made to model
the extent of ephemeral streams). The results of the computer modeling were compared to
the National Hydrology Dataset (N HD), which is basically a stream network based on
1:100,000 scale maps.


The GIS model results have also been compared to independent field data which were
collected to verify perennial and intermittent stream lengths for a proposed mining permit
(Green and Passmore, 1999). The USEPA field survey defined two types of perennial
streams using the WV Water quality standards methodology for determining perennial
streams and was conducted during a relatively dry, late summer period. The study found
multiple segments of WVDEP Type 1 (flow and indicator biota requiring 6 mo. life
cycle) and Type 2 (intermittent flow but indicator biota requiring 6 mo. life cycle)
(WVDEP 1999).


Concerning the Spruce No. 1 proj ect, EPA first compared lengths of stream channel in
Pigeonroost, Seng Camp, and Oldhouse from USGS estimates using drainage area to
estimates made in the EIS for these stream reaches. Median drainage areas for








ephemeral/intermittent (14.5 acres) and intermittent/peremiial (40.1 acres) have been
documented by USGS (Paybins, 2003). Moreover further studies by the US EPA Office
of Research and Development (Fritz et al., 2007, 2008), US EPA Region III (EPA-
Wheeling 2007), and Svec et al. 2005 that these USGS drainage area estimates are quite
reliable for the Cumberland Plateau sub-ecoregion.


EPA compared lengths of stream channel in Pigeonroost, Seng Camp, and Oldhouse from
USGS estimates to estimates made by the permittee. For example, median drainage areas
for ephemeral/intermittent (14.5 acres) and intermittent/perennial (40.1 acres) have been
documented by USGS (Paybins, 2003). Using this information, EPA believes that the
proposed valley fills Will likely impact an greater quantity (by thousands of feet) of
intermittent and perennial stream channels than is currently proposed to be compensated


for by the project’s Compensatory Mitigation Plan (CMP)




On~the-ground field observations in the Spruce No. 1 project area also support the
conclusion that stream resources have been underestimated. A field reconnaissance by


EPA (accompanied by Sturm Environmental, Inc.) during dry conditions in September
1998 (reported in Green and Passmore, 1999) found distinct perennial benthic
commtmities (i.e., long-lived taxa representative of perennial conditions in the upper
reaches of Seng Camp, Pigeonroost, and Oldhouse that were largely not acknowledged
by the USACE during the permit process.This 1999 EPA report was sent to Huntington
District USACE Regulatory Branch Chief (l\/LD. Gheen) on July 29, 1999 and was
subsequently published in the Corps’ September 2006 FEIS, but was not incorporated


into the analysis


Based on these new scientific studies and previously collected field data, EPA believes
that all proposed valley fills will impact previously undelineated segments of intermittent
and perennial stream channels. 'An example of mischaracterization is in Oldhouse
Branch. The uppermost ephemeral/intennittent delineation point (T1; CMP Final Exhibit
2-Stream Delineation Map) occurs at approximately the 255 acre _Watershed size (this
corresponds the Green and Passmore, 1999 site O1 in Figure 1). At this watershed size,
EPA contends that a strong perennial stream channel is present for thousands of feet
upstream of this point. Figure 1 shows an excerpt from a 7.5 min USGS topographic map
depicting Green and Passmore (1999) study sites, overlain with Paybins (2003) drainage-
area derived intermittent and perermial delineations.


















/


Figure l. Excerpt from USGS 24K topographic map showing EPA sample sites overlain
by Paybins (2003) drainage area-derived intermittent and perennial designations. Blue
lines are NHD (l :24,00()) streams, yellow lines are perennial streams, and red lines are
intermittent streams. The magenta areas are mined lands.


EPA compared lengths of stream channel in Pigeonroost, Seng Camp, and Gldhouse from
USGS estimates, to field delineations made by the applicant. As an example, it is EPA’s
determination that at point Tl (mentioned above) in Oldhouse Branch (the applicant’s
demarcation for ephemeral/intermittent found in CMP Final Exhibit 2-Stream
Delineation Map) that there are approximately 3100 feet of unaccounted for perennial
stream above that point. Moreover, in Oldhouse, an additional l 100 feet in “Second
Unnamed Right Tributary” (T2 in CMP Exhibit) probably run perennially. By adding the
additional distance from Tl down to the toe of the proposed fill, it is probable that there
are over 7000 cumulative feet of perennial stream channel that will be mined-through or
filled in Oldhouse Branch alone. This is in contrast to the <200 feet determined by the


applicant


In Pigeonroost, EPA believes that additional stream lengths, which have been classified
as ephemeral or intermittent by the applicants, are likely perennial Waters. Again, the
EPA study (Green and Passmore, 1999) usedthe WV Water quality standards
methodology for determining perennial streams and was conducted during a relatively
dry, late summer period. The study found WVDEP Type l (flow and indicator biota
requiring 6 mo. life cycle) and Type 2 (intermittent flow but indicator biota requiring 6
mo. life cycle) perennial conditions near the very headwaters of Pigeonroost.
Additionally, one site in upper Middle Fork of Pigeonroost (Pl in Figure l) with a
catchment area of only 15 acres was also deemed to be a Type l perennial stream.


Overall, through onsite visits and biological data collection, EPA conservatively
determined that, within the mine footprints of Rt. Fork Seng Camp, Pigeonroost, and
Oldhouse Branch, over 5 miles of stream (~27,000 feet) are Type l perennial. This is in
contrast to the marked underestimation in the Spruce No. l permit. USACE’s permit
accounted for less than 200 feet of perennial waters Within the entire project area. Thus,
the applicant appears to have significantly misclassified tens of thousands feet of
peremjial Waters Within the project area. Therefore any calculations of debits and credits,
and subsequent offsets using the Stream Habitat Unit method (SHU), or any other known
methdd or compensation ratio, would be misleading and not fully compensatory for the
destroyed natural resources. Further concerns on the SHU are discussed below.


Acknowledging that the stream class determinations made by Decota Consulting (on
behalfof Mingo Logan) were based on WVDEP’s guidance doctunent (dated Oct. 25,
1999), the actual results do not correspond with independent data (see Green and °
Passmore, 1999), and new scientific information concerning the designation of these
stream types (Paybins 2003; Svec et al.2005: Fritz et al., 2007, 2008; EPA, 2007). The
delineations were conducted in June, July, August, and October of 2000. The time period
of June through August was a period of above average precipitation while October was a
period of below average rainfalll Although the area was not in drought status at the
time of assessment,2 we question the actual delineation of streams types in the project
area.




The classification of resource type is extremely consequential. With regard to Spruce
No. l, the classification determines the expectations concerning stream structure and
function including the biota and the amount of organic matter, nutrients and pollutants
I (http://lwf.ncdc.noaa.gov/oa/climate/research/cag3/wv.htm1). i
2(http://www.cpc.ncep.noaa.gov/products/analysis monitoringfregional monitoringfpalmer/2000/),












retained or loaded to receiving streams. EPA believes that Mingo Logan and USACE
grossly underestimated the stream resources Within the project area; Therefore, the need
for mitigation was underestimated.


Inappropriate Use of Erosion Control Ditches as Mitigation




The CMP’s use of on-bench ditches as mitigation continues to be problematic. `On-bench
sediment ditches are a consequence of Sl\/ICRA-required best management practices
(BMPs) to control Water and erosion runoff and should not be considered adequate
compensation for loss of high quality stream resources such as those in Pigeonroost and
Old House Branch. Data show that water quality in sediment ditches in previously mined
areas is highly degraded, because ditch water has percolated through mine spoil. Because
of the degraded water quality, these channels should be considered sources of pollution
rather than a mitigation feature. These created water bodies would be considered non-
attaining in terms of aquatic lite uses based on the assessment of benthic communities
and could subsequently be listed as impaired on the state 303(d) list. Data from Kirk
(1999), Green et al. (2000), and Gingerich (2009) strongly suggests that indigenous
benthic assemblages in these ditches do not resemble those found in natural, high-
gradient Appalachian headwater streams like those in Spruce mine area and would be
assessed as severely impaired. Moreover, the water quality (e. g., salinity) is so degraded
that it could potentially foster the establishment of toxic Golden Algae. Although the
CMP considers on-site erosion control structures equivalent to existing streams, these
drainage ditches are designed to control physical forces and do not replace the range of
stream functions that existed prior to mining. The natural resources that are being lost are
healthy, biologically ftmctioning streams. The erosion control structures are designed to
control and convey Water and are not likely to replace the lost ecological services
provided by the streams.


The permit’s Special Conditions require that biological scores (i.e., WVSCI) and habitat
scores (i.e., RBP) be similar to or better than pre-mine conditions in the erosion control
ditches. As already noted these conditions may be extremely difficult to achieve. Given
the current knowledge of the physical, chemical and biological conditions in several
representative on-bench ditches, it is clear that compensation for buried headwater
streams will not be attained by these mitigation measures. Evidence reported below
(Figs. 2, 3, 4) reveals that the created channels will fail to meet the conditions of the
permit for most sites. Even when the sediment ditches are enhanced for benthic substrata
and riparian vegetation (e. g., boulder clusters every 500-1,000 ft), the water quality will
likely be so degraded that the ditches Will not meet or exceed pre-mining WVSCI scores
required by the permit’s Special Conditions. `


The following Figures 2 through 3 show aerial views of examples of on-bench sediment
ditches with the accompanying biological and physicochemical data. EPA has observed
the following conditions in these sediment ditches, in comparison to natural high-gradient
S'[I`€&1'1’1SI


1) Altered flow regime (e.g., Lmnaturally low velocities)










2) Altered temperature regime (e. g., extreme high temperatures)
3) Severely contaminated Water (e. g., ions, metals)
4) Depauperate and tolerant biota (e.g., typical of roadside ditches/urban swales)




The CMP indicates that the streams will be “enhanced” by the additional flow from these
ditches, changing them from intermittent to perennial. This is problematic, however, if
the goal is to replace some of the natural intermittent streams found Within the project
area. Intermittent streams provide their own ecological functions and many species
(including some EPT taxa) rely on intermittent streams as part of their life history
strategy. Conversion of naturally intermittent flows to unnatural perennial flows will
place naturally occurring fauna at a competitive disadvantage, further contributing to the
elimination of this unique Wildlife from the watershed. These ditches therefore represent
completely different aquatic systems, and thus Will not compensate for the loss of high
quality Appalachian headwater streams.




Thus, Without data showing that this form of stream creation has replaced lost functions
(i.e., equivalent to a fully functional Appalachian mountain stream); there is no basis in
the record to allow the use of such on-bench mitigation to compensate for the permanent
destruction of high quality streams such as Pigeonroost Branch and Oldhouse Branch.
Any conditions for corrective remedial measures imposed by the permit are deficient
because the high quality resource will be lost in perpetuity.


































functioning streams. The diagrams of enhancement techniques (i.e., vortex weirs, j-
hooks, boulder clusters) pictured in Exhibits 7-l5 of the CMP, and to be deployed in
Spruce Fork and Rockhouse, give EPA no assurances whatsoever that lost headwater
stream structure and function will be offset by enhancements in the mitigated stream
segments.




The on-site “restored” sections of stream in connection with sedimentation ponds and
mine-through areas will also not function like pre-mining streams because of chronic
chemical pollution leaching from mine spoils and valley fills (e. g., Pond et al. 2008; Fritz
et al. 2010). The term “restoration” means to return an ecosystem to its historic pre-
disturbance ecological trajectory. Because water quality drives the structure of aquatic
communities within affected streams, simply applying a “natural channel design”
component and riparian plantings will not re-establish the naturally occurring indigenous
wildlife or ecosystem functions that currently exist in Seng Camp, Pigeonroost, and
Gldhouse. Furthermore, these “restored” segments will continue to export degraded Water
to Spruce Fork and the Little Coal River.


Riparian Plantings


Mingo Logan proposes to restore or create 71 acres of riparian forest. The EPA agrees
that trees should be planted along any newly created stream chamiels, but has not seen
evidence that they will replace lost natural riparian ecosystems. Indeed, these newly
created riparian ecosystems will be of degraded, poor quality for many, many years.
Simply planting trees does not create a riparian forest. Some of the tree species listed in
the CMP for riparian revegetation are not even native to West Virginia (Cherrybark Oak,
Sawtooth Oak, and Swamp Chestnut Oak). Out of the 11 tree species listed in the CMP,
only 2 (red maple and sycamore) are potentially valid choices for riparian planting. The
others are not found within or near the project area. From an ecosystem compensation
standpoint, most of the proposed tree (and shrub) species are“non-native” to the
ecoregion, and thus not representative of Appalachian headwater areas. Pines (Pinus
spp.) such as White Pine and Virginia Pine should not be planted in riparian zones since
they are not naturally occurring in headwater riparian zones in the ecoregion and
contribute little to benthic organic matter and have low organic matter breakdown rates
(Webster and Benfield 1986). Overall, this re~vegetation plan is inadequate, in terms of
creating a healthy riparian forest designed to replace the existing streamside forests
within the Spruce project area. The current riparian zone consists largely of basswood,
beech, tulip poplar, buckeye, sugar maple, white oak and red oak. EPA contends that
these resident native species would, at a minimum, be better choices to help replace some
structure and function of the headwater stream ecosystem.




Connectivity Channels
An additional 26,625 feet of high gradient stream credit is sought for areas where surface
Water flows from the on-bench ditches, through NPDES outfalls, and down hill to
eventually “form a hydrological connection to a surface tributary of a navigable water”
(USACE ROD Special Conditions). These connectivity channels are simply overflow
channels through Wooded hill slopes. The premise is that, if properly placed, the mine