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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Supports Lands Unsuitable Petition 10-2  Posted: December 1, 2010

December 1, 2010

Richard J. Wahrer, Ph.D
Department for Natural resources
Office of the Commissioner
#2 Hudson Hollow
Frankfort, Kentucky 40601

By email to Richard.Wahrer@ky.gov

Re: LUM 10-2

Dear Richard:

These comments are submitted in response to you letter of September 30, 2010 soliciting information that responds to the allegations contained in LUM Petition 10-2.

The Council appreciates the invitation to comment, and provides this additional information in support of the granting of the petition to designate the petitioned area as unsuitable for mining.

1. Water withdrawals affecting flow and sensitivity of South Fork to sedimentation.

As you are no doubt aware, even where a surface coal mining operation is in full compliance with the requirements of a SMCRA-issued permit, adverse impacts occur to the hydrologic balance both on and of the mine site.

These impacts come both from point sources and from the many activities associated with surface coal mining operations, including but not limited to road construction and use, and the impacts of increased flow from runoff diverted around the disturbed area, are not controlled as point source activities for purposes of meeting effluent limitations. These activities contribute to the total loading of suspended and settleable solids and other contaminants, including sulfates and chlorides, into receiving streams.

Active surface coal mines have the potential to contribute as much as 48,000 tons of sediment annually per square mile of active mine, as compared with 24 tons of annual sediment yield from forested lands. Compliance with effluent limitations controls to some extent, but does not eliminate these additional contributions of sedimentation to receiving waters. Skelly and Loy, 1979. The U.S. Environmental Protection Agency has estimated that soil loss from a watershed can be increased by surface mining by as much as 2,000 times during active mining and up to 10-100 times over baseline after mining, depending on the quality of reclamation. Assuming, as must be assumed in a designation petition, that the mining operation will be in complete compliance with provisions intended to minimize off-site hydrologic impacts, there will yet be a significant increase in sediment yields compared to baseline, since the mining activities control sediment transport only above a certain particle size and below a certain storm event size. Surface mining controls, even within the confines of existing regulations, do not significantly reduce sediment yield and pollutant transport, especially for storm runoff events with a return frequency of greater than 10% in any given year.

An increase in sedimentation, as well as additional contributions of metals and an alteration of pH from both point and non-point activities has the potential to impact the quality of the streams that drain the petitioned area, and the habitat for significant species within those watersheds.

For the purposes of any LUM petition, it is assumed that any surface coal mining operation that would be conducted within the watershed would do so in full compliance with the Cabinet’s regulations. In a situation such as this, because of the sensitivity of the resources, the environmental consequences associated with mining even assuming full compliance with the Act are yet too great to allow within the petitioned area.

It is to be remembered that the permitting standards of the Act do not demand "no impact" concerning land, aesthetic, and hydrologic effects off-site, rather, only minimization of those impacts. Despite application of the best available technology, and the standards of the Act governing site preparation, blasting, backfilling, grading and revegetation, there are off-site consequences that are not prevented entirely. The analysis conducted by your agency in approving the Lands Unsuitable Petition 87-2 and setting aside as unsuitable for mining the entire Cannon Creek Lake watershed, provides important evidence that despite compliance with all environmental performance standards of Sections 515 and 516 of the Act, and the Cabinet’s regulations, impacts "could result from the surface disturbances associated with coal mining activities and discharges of water [which] have been demonstrated to be significant in terms of both the water supply systems and the natural systems[.]”

Among the conclusions of that analysis, equally applicable to and compelling a conclusion that designation is appropriate in this case, were these points:

"Typical water quality impacts which are commonly associated with surface coal mining and reclamation operations include but are not limited to sedimentation, acid mine drainage and release of heavy metals.

All of these impacts can be associated with both surface and underground mining methods. . . .

The differences in surface and underground mining methods must be acknowledged before drawing any conclusions. Both mining methods in terms of actual surface disturbance, start out essentially the same. Both require roads to be built for mine access, construction of ponds prior to surface disturbance, overburden removal to develop a working bench or to remove the coal and the creation of fills to either temporarily or permanently store excess spoil which is generated."

Your agency modeled the impact of increased sedimentation associated with mining disturbances, assuming that all disturbed areas including roads were controlled by sediment ponds, that all ponds would meet all effluent limitations all the time, and that no sediment would be generated from a forested area or reclaimed areas after 12 months. The analysis indicated that the average sediment yield from a 500-acre mine would be 38,200 tons per year. Sediment ponds would trap 79% of the sediment, with the remaining 8,020 tons entering the receiving waterway. Total suspended solids levels would rise to between 90 and 120 milligrams per liter (mg/l) above natural background levels. "These concentration predictions are directly proportional to the sediment load and amount of disturbance."

As part of the an analysis that you will undertake in reviewing this petition, a consideration of the carrying capacity of the receiving waters, which is the ability of the watershed to bear an additional pollutant load, a change in flow, or a change in water chemistry without impairing the capacity of the stream, to support the designated uses and without degradation of water quality and habitat, is necessary.

In this instance, KRC understands that the Manchester Water Works supplies public water for the entirety of Clay County, and has two withdrawal points; one of which is directly from Goose Creek and the other, a reservoir in a Goose Creek tributary. Goose Creek is one of the three streams that converge at Oneida to form the South Fork of the Kentucky River. It is our understanding that, as water usage has increased, the amount of water reaching the South Fork has diminished significantly. One visible result has been that flooding at Oneida has not occurred in over eight years, where historically, there was some degree of flooding almost annually. Drought conditions for the past several years have also decreased flow in the South Fork.

In determining the impacts of mining on the South Fork, the diminished flow from Goose Creek should be considered, and the most current information concerning the 7Q10 flow of that waterbody, and of the raw water chemistry at the Manchester withdrawal points, should be evaluated.

2. The other new information that KRC believes to be of significance in the review of LUM 10-2 is the publication in the Federal Register on Wednesday, November 10, 2010, 75 FR 69222 by the U.S. Fish and Wildlife Service of a Notice of Review captioned “Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions.”

The notice indicates that there are two candidate species of concern that KRC believes are extant in the petitioned area, one being the Rabbitsfoot Mussel, which is listed at 75 FR 69288 as a candidate species for which Region 4 is the lead region, and the Kentucky Arrow Darter, which is a new candidate species listing.

Of this new listing, the Federal Register notice (which is being submitted as an attachment to this letter and which is incorporated herein by reference), states in full:

"Kentucky arrow darter (Etheostoma sagitta spilotum)—The following summary is based on information in our files. The Kentucky arrow darter is a rather large (total length of 4.6 inches (116 millimeters)), brightly colored darter that is restricted to the upper Kentucky River basin in eastern Kentucky. The species’ preferred habitat consists of pools or transitional areas between riffles and pools (runs and glides) in moderate to high gradient streams with bedrock, boulder, and cobble substrates. In most recent surveys, the Kentucky arrow darter has been observed in streams ranging in size from first to third order, with most individuals occurring in second order streams in watersheds encompassing 7.7 square miles (20 square kilometers) or less. Kentucky arrow darters feed on a variety of aquatic invertebrates, but adults feed predominantly on larval mayflies (order Ephemeroptera), specifically the families Heptageniidae and Baetidae. Rangewide surveys from 2007 to 2009 revealed that the Kentucky arrow darter has disappeared from portions of its range. During these surveys, the species was observed at only 33 of 68 historical streams and 45 of 100 historical sites. The subspecies’ habitat and range have been severely degraded and limited by water pollution from surface coal mining and gas-exploration activities; removal of riparian vegetation; stream channelization; increased siltation associated with poor mining, logging, and agricultural practices; and deforestation of watersheds. The threats are high in magnitude because they are widespread across the subspecies’ range. In addition, the magnitude (severity or intensity) of these threats, especially impacts from mining and gas exploration activities, is high because these activities have the potential to alter stream water quality permanently throughout the range by contributing sediment, dissolved metals, and other solids to streams supporting Kentucky arrow darters, resulting in direct mortality or reduced reproductive capacity. The threats are imminent because the effects are manifested immediately and will continue for the foreseeable future. Consequently, we assigned an LPN of 3 to this subspecies."

75 FR 69224.

While the prohibition against jeopardizing a endangered or threatened species under the performance standards for surface and underground mining is limited to listed species, the standards for granting a petition to declare lands as unsuitable for mining based on the presence of “fragile lands” extends to protect not only those species that are listed, but also extends to protect:

"Natural, ecologic, scientific, or aesthetic resources that could be significantly damaged by surface coal mining operations. Examples of fragile lands include... valuable habitats for fish or wildlife,[and]environmental corridors containing a concentration of ecologic and aesthetic features[.]"

405 KAR 34:001 Section 1(19) (Emphasis added).

In this instance, a species that is known to exist only in the upper Kentucky River basin in eastern Kentucky has already suffered precipitous decline in populations, losing half the locations in which populations were found in a two year period, due to land disturbances associated with mining, oil and gas exploration, and logging (which is often undertaken to scalp the land prior to mining). It is precisely this type of situation, where the continued existence of this species is so “fragile” that even mining done in compliance with performance standards has contributed to the precipitous decline of the population habitat will likely further jeopardize or eliminate the existence of a species, that Congress intended that unsuitability petitions be granted.

Thank you for the opportunity to submit this additional information for your consideration in reviewing LUM 10-2.



Tom FitzGerald

Attachment: 75 FR 69222 et seq.

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