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No. 17-1430 In the United States Court of Appeals for the Fourth Circuit
Scott Pruitt, Administrator, United States Environmental Protection Agency, and Cecil Rodrigues, Acting Regional Administrator, United States Environmental Protection Agency, Region III, Defendants-Appellants, v.
Ohio Valley Environmental Coalition, Inc.; Sierra Club; West Virginia Highlands Conservancy, Inc.; and West Virginia Rivers Coalition, Plaintiffs- Appellees.
On appeal from the United States District Court for the Southern District of West Virginia, Case No. 3:15-cv-00271 (Chambers, J.)
Federal Defendants-Appellants’ Motion for Stay Pending Appeal
JEFFREY H. WOOD Acting Assistant Attorney General
DAVID J. KAPLAN JAMES A. MAYSONETT Attorneys, U.S. Dep’t of Justice Environment & Nat. Res. Division Of Counsel: P.O. Box 7415 JIM CURTIN Washington, D.C. 20044 STEFANIA SHAMET 202-305-0216 U.S. Environmental Protection Agency [email protected]
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Table of Contents Introduction ...... 1 Background ...... 2 A. The Clean Water Act and “constructive submission.” ...... 2
B. West Virginia’s TMDL program and biological impairment...... 4
C. The district court’s decision...... 5 D. Motion to stay ...... 6
Standard of Review ...... 6
Argument ...... 7 I. The United States is likely to succeed on the merits of this appeal...... 7
A. The district court misapplied the “constructive submission” doctrine...... 8
1. The district court erred because West Virginia has a robust TMDL program and a plan to complete the subject TMDLs...... 8
2. The district court erred because West Virginia is working on ionic toxicity TMDLs...... 11
3. The district court also erred because West Virginia is working on other TMDLs that address biological impairment...... 14
B. The district court wrongly held that OVEC had standing to sue regarding waters throughout West Virginia...... 16
II. EPA is likely to suffer irreparable harm unless this order is stayed...... 18
III. A stay will serve the public interest...... 22
Conclusion ...... 22
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Table of Authorities
Cases
Alaska Ctr. for the Environment, 762 F. Supp. 1422 (W.D. Wa. 1991) ...... 13
Alaska Ctr., 20 F.3d 981 (9th Cir. 1994) ...... 10, 17
American Canoe Ass’n v. EPA, 30 F. Supp. 2d 908 (E.D. Va. 1998) ...... 13
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ...... 17
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) ...... 17
Hayes v. Whitman, 264 F.3d 1017 (10th Cir. 2001) ...... 4, 8, 10
Kingman Park Civic Ass’n v. EPA, 84 F. Supp. 2d 1 (D.D.C. 1999) ...... 13
Lewis v. Casey, 518 U.S. 343 (1996) ...... 16, 17
Long v. Robinson, 432 F.2d 977 (4th Cir. 1970) ...... 22
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...... 16
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ...... 16
NRDC v. FDA, 884 F. Supp. 2d 108 (S.D.N.Y. 2012) ...... 21
Philip Morris USA Inc. v. Scott, 131 S. Ct. 1 (2010) ...... 21
San Francisco Baykeeper v. Whitman, 297 F.3d 877 (9th Cir. 2002) ...... 4, 8, 10, 11
Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) ...... 3, 4, 9
Sierra Club v. Browner, 843 F. Supp. 1304 (D. Minn. 1993) ...... 17
Sierra Club v. Morton, 405 U.S. 727 (1972) ...... 16
Summers v. Earth Island Inst., 555 U.S. 488 (2009) ...... 17
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ...... 6
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Wis. Gas Co. v. FERC, 758 F.2d 669 (1985) ...... 20
Statutes
33 U.S.C. § 1251(b) ...... 2
33 U.S.C. § 1313(d)(1)(C) ...... 2
33 U.S.C. § 1313(d)(2) ...... 3
33 U.S.C. §§ 1313(d)(1)(A), (C) ...... 10
Id. § 1313(a), (b) & (c)(1) ...... 2
Id. § 1313(d)(1)(A) & (B) ...... 2
Id. §§ 1313(d)(1)(c), (d)(2) ...... 3, 8
Regulations
40 C.F.R. §§ 130.2(j) & 130.7(b)(1) ...... 2
40 C.F.R. §§ 130.7, 130.7(c)(1), 130.2(g)–(i)...... 3
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Introduction
The United States moves this Court to stay the district court’s February
14, 2017 order pending appeal. Opinion and Order (Feb. 14, 2017)
(Attachment 1). Without a stay, that order, and further obligations that it will
trigger under the Clean Water Act (“CWA,” the “Act”), could require EPA to
establish “total maximum daily loads” (“TMDLs”) for up to 573 different
bodies of water in West Virginia. That is a job that EPA was never meant to do
because the Act entrusts this responsibility to the State of West Virginia, not
EPA.
None of this is necessary or justified. The district court misapplied the
judge-made theory of “constructive submission” to put this burden on EPA.
The other courts that have adopted this theory have applied it cautiously,
recognizing that it is not found in the Act. The theory has never before been
applied to anything less than a complete and total failure of a State to
implement the TMDL provisions of the Act. And it has never before been
applied to a TMDL program like West Virginia’s, which has developed and
submitted over 4,000 TMDLs to EPA since 2004. We respectfully submit that
this case was wrongly decided.
The district court’s order will cause irreparable harm. If EPA is forced to
take over this aspect of West Virginia’s TMDL program, it could cost EPA
millions of dollars, which it will never be able to recover, and divert EPA from
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its responsibilities under the Act. The district court’s order will force EPA to
head down the wrong path, wasting federal funds and the agency’s limited
resources. This Court should stay that order pending appeal to maintain the
status quo and avoid irreparable harm.
Counsel for the plaintiffs-appellees have been informed of the intended
filing of this motion. They oppose it and intend to file a response in opposition
within one week.
Background
A. The Clean Water Act and “constructive submission.”
The Clean Water Act requires the States to take a series of regulatory
steps to “prevent, reduce, and eliminate pollution.” 33 U.S.C. § 1251(b). The
States must first set water quality standards (“standards,” “WQS”). Id. §
1313(a), (b) & (c)(1). The Act and its regulations then require the States to
submit a list to EPA—commonly known as a “303(d) list”—that identifies all
of the waters that fail to meet those standards. Id. § 1313(d)(1)(A) & (B); 40
C.F.R. §§ 130.2(j) & 130.7(b)(1). Waters on the list are commonly called
“impaired waters.”
The Act directs the States to establish a “total maximum daily load”
(“TMDL”) for each impaired water; that TMDL sets the maximum amount of
a pollutant that the water can receive from all sources and still meet the
relevant water quality standards. 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. §§ 130.7,
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130.7(c)(1), 130.2(g)–(i). Once a State submits a TMDL to EPA, EPA has 30
days to approve or disapprove it. 33 U.S.C. § 1313(d)(2). If EPA disapproves
the TMDL, it then has 30 days from that disapproval to establish its own
TMDL. Id.
The Act does not require the States to submit TMDLs to EPA on any
particular schedule, and it does not expressly require EPA to act if the States
fail to submit TMDLs. Instead, it only requires the States to submit TMDLs
“from time to time” “in accordance with the priority ranking” set by the State.
Id. §§ 1313(d)(1)(c), (d)(2).
During the early years of the Act, some States neglected their TMDL
programs, and some courts reacted by embracing a theory known as
“constructive submission.” See, e.g., Scott v. City of Hammond, 741 F.2d 992 (7th
Cir. 1984). The doctrine holds that, “if a state fails over a long period of time
to submit proposed TMDLs, this prolonged failure may amount to the
‘constructive submission’ by that state of no TMDLs.” Id. at 996. This
“constructive submission” of “no TMDLs” would then trigger EPA’s statutory
obligation to review the “no TMDLs” within 30 days. 33 U.S.C. § 1313(d)(2).
If EPA disapproved the constructive submission of “no TMDLs,” EPA would
be required to establish its own TMDLs within 30 days. Id.
The Seventh Circuit invented “constructive submission,” and the Ninth
and Tenth Circuits have analyzed cases using that doctrine, although no court
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of appeals has actually made a finding of constructive submission. Scott, 741
F.2d at 996; San Francisco Baykeeper v. Whitman, 297 F.3d 877 (9th Cir. 2002);
Hayes v. Whitman, 264 F.3d 1017 (10th Cir. 2001). This Court has not addressed
the doctrine.
B. West Virginia’s TMDL program and biological impairment.
West Virginia has a vigorous TMDL program. Since 2004, EPA has
approved over 4,000 TMDLs submitted by West Virginia. Since February
2016, West Virginia has submitted nearly 500 more TMDLs, and it expects to
submit over 180 more by the end of 2019.
Starting in 1998, West Virginia began to identify waters, including the
573 waters at issue in this case, as “biologically impaired” when they failed to
meet a water quality standard that prohibits “[m]aterials in concentrations
which are harmful . . . to man, animal, or aquatic life.” West Virginia made
those determinations primarily using a tool called the West Virginia Stream
Condition Index (“WVSCI,” pronounced “whiskey”). WVSCI measures the
health of the community of benthic macroinvertebrates.
At the time this litigation began, the State had concluded that the
stressor or pollutant causing biological impairment in about 179 of these
waters was “ionic toxicity.” (The State had not identified the stressor or
pollutants for the remaining 396 waters at that time.) Ionic toxicity is not itself
a specific pollutant, but instead refers to a cumulative concentration of various
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ionic pollutants, largely dissolved salts, at levels that are high enough to harm
aquatic life (by interfering with osmoregulation).
West Virginia’s efforts to develop TMDLs for these waters were
complicated when the West Virginia state legislature passed Senate Bill 562
(“SB 562”) in 2012, which requires the State to develop a new tool (to replace
WVSCI) to assess the health of biological communities. West Virginia is
working to develop that new assessment tool. The State believes that this tool
must be developed first, before it can establish TMDLs for ionic toxicity,
because the tool will define what waters are impaired and what endpoints that
TMDLs are trying to achieve.
When this litigation began in 2015, West Virginia had not yet established
TMDLs for these waters, although it has now issued TMDLs for pollutants
other than ionic toxicity for many of them. West Virginia reports that it will
complete the TMDLs challenged in this case between 2017 and 2027 (with the
exception of seven waters, not originally included on its 303(d) list, that it
expects to complete by 2031). See West Virginia’s 2014 Section 303(d) List
(Attachment 5) at 50–103.
C. The district court’s decision.
In 2015, plaintiffs Ohio Valley Environmental Coalition et al. (“OVEC”)
sued EPA, arguing that EPA had violated the Clean Water Act by failing to
approve or disapprove West Virginia’s “constructive submission” of “no”
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biological impairment TMDLs for these 573 waters. The case was resolved by
the district court in two decisions. In its first decision, the district court held
that OVEC had demonstrated standing. Opinion and Order (Sept. 9, 2016)
(Attachment 2). In its second decision, the district court concluded that West
Virginia’s actions here constituted a “constructive submission” of “no
TMDLs” for biologically-impaired waters. Att. 1. The district court initially
ordered EPA to approve or disapprove these “no TMDLs” for all 573 waters by
March 17, 2017. The court later extended that deadline until 14 days after this
Court rules on this motion for stay pending appeal. Opinion and Order (May
2, 2017) (Attachment 3) at 22.
D. Motion to stay
The United States moved the district court for a stay pending appeal on
April 4, 2017. The district court denied that motion on May 2, 2017. Att. 3.
Standard of Review
A party seeking injunctive relief must establish (1) that it is likely to
succeed on the merits; (2) that it is likely to suffer irreparable harm in the
absence of injunctive relief; (3) that the balance of equities tips in its favor; and
(4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008).
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Argument
I. The United States is likely to succeed on the merits of this appeal.
The United States is likely to succeed on the merits of its appeal for two
reasons.
First, the district court misapplied the “constructive submission”
doctrine. Constructive submission cannot apply here because West Virginia has
a robust TMDL program and a plan to complete the challenged TMDLs. No
other court has ever made a finding of constructive submission on facts like
these.
The district court’s finding of constructive submission is also based on
two important factual errors. The court found that West Virginia has “clearly
and unambiguously” decided not to establish TMDLs for ionic toxicity when
the record shows to the contrary that West Virginia has a plan to complete
those TMDLs. And although the court found that West Virginia has not
developed any TMDLs for biological impairment since 2012, the State has
actually developed hundreds of such TMDLs and continues to do so.
Second, the United States is likely to succeed on its appeal because the
district court erred in finding that OVEC has standing. The district court
allowed OVEC to bring claims regarding more than 500 waters, but OVEC
claimed an interest in only about 50. The district court’s decision is not
consistent with the principles of standing articulated by the Supreme Court.
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A. The district court misapplied the “constructive submission” doctrine. 1. The district court erred because West Virginia has a robust TMDL program and a plan to complete the subject TMDLs.
The Clean Water Act does not require West Virginia to submit TMDLs
to EPA on any particular schedule. It does not expressly require EPA to act if
West Virginia fails to submit TMDLs. Rather, the Act merely requires West
Virginia to submit TMDLs “from time to time,” in accordance with the State’s
priorities, and it makes no provision for “constructive submission.” Id. §§
1313(d)(1)(c), (d)(2).
Constructive submission is instead a judge-made doctrine, and it is
“necessarily a narrow one.”1 Hayes v. Whitman, 264 F.3d at 1024. It applies
“only when the state’s actions clearly and unambiguously express a decision to
submit no TMDL.” Id. It is “not viable” where a State has “submitted a
number of TMDLs and is making progress toward completing [other]
TMDLs.” Id. Where a State has submitted TMDLs and “established a
schedule for completing its remaining TMDLs,” those actions “preclude any
finding that the state has ‘clearly and unambiguously’ decided not to submit
any TMDLs.” Baykeeper, 297 F.3d at 883. In other words, where a State is
1 The Fourth Circuit has not adopted the constructive submission doctrine. The Court does not need to decide whether this doctrine is a valid interpretation of the Clean Water Act, however, because, even if it is, the district court erred as a matter of law by applying it here.
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doing the work required by the Clean Water Act, there is no justification for
constructive submission because there is no threat to “the federal scheme of
water pollution control.” Scott, 741 F.2d at 997.
The district court erred because it applied the constructive submission
doctrine where it has no justification. West Virginia has both a robust TMDL
program and a plan to complete the challenged TMDLs. In fact, West Virginia
has established thousands of TMDLs since 2004, it has submitted nearly 500
more since February 2016, and expects to submit over 180 more by the end of
2019. That includes TMDLs for the waters at issue in this case (as well as other
waters throughout the State) and for various pollutants.
West Virginia also has a plan to develop the TMDLs challenged here—
that is, TMDLs that address the biological impairment of the 573 waters at
issue in this case. In fact, it has already established such TMDLs for some of
these waters and plans to complete the rest between 2017 and 2027 (with the
exception of seven waters that it expects to complete by 2031). See Att. 5 at 50–
103.
These facts preclude a finding of constructive submission. No other
court has ever made a finding of constructive submission on facts like these.
Instead, the courts have held that the establishment of even a handful of
TMDLs is enough to preclude constructive submission. Baykeeper, 297 F.3d at
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883 (holding 18 TMDLs preclude constructive submission); Hayes, 264 F.3d at
1022 (holding 29 TMDLs preclude constructive submission).
The district court’s application of constructive submission to this case
expands the doctrine well beyond the bounds established by the courts that
devised it. By doing so, the district court has undone the careful balance that
Congress struck between the State and Federal governments. The Clean Water
Act gives the States, not the federal courts, the authority to set their own
priorities for their impaired waters. 33 U.S.C. §§ 1313(d)(1)(A), (C). West
Virginia has set its priorities, and other TMDLs are ahead of the TMDLs for
ionic toxicity. OVEC may not prefer the State’s priorities, but nothing in the
Clean Water Act allows OVEC or the district court to dictate how quickly West
Virginia must develop these TMDLs or the order in which they must be
developed. The other courts that have applied the constructive-submission
theory have warned that it cannot be used to challenge a State’s priorities or
“the timeliness . . . of the state’s TMDL submissions.” Hayes, 264 F.3d at 1024;
see also Alaska Ctr., 20 F.3d 981, 985 (9th Cir. 1994) (“It would be contrary to
congressional directive to permit individual plaintiffs or a federal court to . . .
impose their own prioritization.”).
The district court’s decision contravenes West Virginia’s priorities by
forcing EPA to determine now, before the State can complete its work, whether
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“no TMDLs” for these waters are sufficient and, if not, to establish EPA’s own
TMDLs. That decision was erroneous.
2. The district court erred because West Virginia is working on ionic toxicity TMDLs.
The district court applied constructive submission in part because it
found that West Virginia does not have a plan to submit TMDLs for ionic
toxicity. Att. 1 at 36. But that finding is directly contradicted by the record.
West Virginia has repeatedly reaffirmed its commitment to establish TMDLs
for ionic toxicity, and it has stated that it has plans to complete those TMDLs
within the next eight years. See Att. 6 at 50–103. In every other reported case,
the State’s plan to complete the challenged TMDLs was sufficient to preclude a
finding of constructive submission. See, e.g., Baykeeper, 297 F.3d at 883.
The district court drew a sharp distinction between the development of
these TMDLs and the new assessment tool required by SB 562. West Virginia,
according to the court, “is not working on the missing TMDLs at all. It is
working on an assessment tool with no end in sight and no plan to develop the
missing TMDLs anytime soon.” Att. 1 at 32. But this distinction is not
convincing. The assessment tool and the TMDLs are fundamentally
connected. West Virginia needs an assessment tool to measure how ionic
toxicity affects the biological communities in these waters and to set pollution
targets for these TMDLs. West Virginia understands SB 562 to require it to
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develop a new assessment tool. Letter from West Virginia Department of
Environmental Protection to EPA Region III (Apr. 6, 2012) (Attachment 6).
West Virginia’s work on its new assessment tool is a necessary component of
its work on these TMDLs, therefore, because that tool will lay the foundation
for these TMDLs.
Moreover, West Virginia has not “clearly and unambiguously”
abandoned its obligations here—to the contrary, it has clearly and
unambiguously stated that it will develop TMDLs for ionic toxicity. See, e.g.,
Att. 5 at 50–103 (reporting projected completion dates for TMDLs). In every
other case, such statements have precluded a finding of constructive
submission. But in this case, the district court chose not to believe West
Virginia. The court did not mince words: it repeatedly suggested that West
Virginia and EPA are engaged in a sham. See, e.g., Att. 1 at 23 (claiming that
EPA is trying to “disguise” West Virginia’s decision not to set TMDLs), id. at
32 (finding that West Virginia is working “on something else entirely under the
guise of a reprioritization”).
But there is no evidence in the record to suggest that either West Virginia
or EPA is acting in bad faith. Certainly, the district court did not cite any such
evidence—instead, it relied on unsupported inferences and speculation. That
was clear error.
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Nor has West Virginia’s delay here been so long that it demonstrates a
“clear and unambiguous” decision by the State not to submit TMDLs for ionic
toxicity. The district court concluded that West Virginia had delayed the
submission of these TMDLs for at least four years (since the state legislature
passed SB 562 in 2012), Att. 1 at 22, and, arguably, West Virginia was
obligated to begin developing TMDLs for some of these waters as early as
2006. But this time frame is consistent with EPA’s guidance, which generally
suggests that States submit TMDLs within eight to 13 years after a waterbody
is identified as impaired. And while the courts have never defined exactly how
long agency inaction must be to support a finding of constructive submission,
they have applied that theory only to correct extreme delay, generally on the
order of decades. Alaska Ctr. for the Env’t, 762 F. Supp. 1422, 1429 (W.D. Wa.
1991); Kingman Park Civic Ass’n v. EPA, 84 F. Supp. 2d 1, 2 (D.D.C. 1999) (18
years); Am. Canoe Ass’n v. EPA, 30 F. Supp. 2d 908, 921 (E.D. Va. 1998) (20
years).
Finally, even if the record had provided some support for the district
court’s findings, that would not be nearly enough to meet the standards that
apply here. The theory of constructive submission was developed to address
situations where a State has “clearly and unambiguously” decided not to
submit TMDLs. But the district court’s analysis showed, at most, that West
Virginia’s actions are unclear and ambiguous, and that their meaning is
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disputed. That is not sufficient to justify a finding of constructive submission.
The United States is likely to succeed on the merits of its appeal because the
record does not support the district court’s factual findings.
3. The district court also erred because West Virginia is working on other TMDLs that address biological impairment.
The district court made another fundamental factual error. The lynchpin
of its decision was its finding that West Virginia “has decided not to submit
TMDLs for biologically-impaired bodies of water.” Att. 1 at 36. It reached that
conclusion because it found that West Virginia has not completed any TMDLs
for biologically-impaired waters since 2012. Att. 1 at 15. The State, according
to the district court, has “stopped issuing TMDLs for all biological
impairments, not just ionic toxicity.” Att. 1 at 31 n.15.
But those findings are belied by the record, which shows that West
Virginia submitted 161 TMDLs to resolve biological impairments in 2014, and
that it submitted at least another 48 in 2016. Attachment 7 at 3–4, 8–10, 14.
It is true that none of these TMDLs address ionic toxicity. Instead, they
address other stressors and pollutants that cause biological impairment, like
aluminum, pH toxicity, and fecal coliform. Those pollutants, unlike ionic
toxicity, already have numeric water quality criteria. And it is true that West
Virginia has paused its development of its TMDLs for ionic toxicity to fulfill
the requirement in SB 562 that it develop a new assessment tool. Att. 6.
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But the district court’s finding of constructive submission here was based
on its conclusion that it is “clear and unambiguous that [West Virginia] has
decided not to submit TMDLs for biologically impaired bodies of water,”
Att. 1 at 36 (emphasis added), and that is simply not true. West Virginia has
developed hundreds of TMDLs “for biologically impaired bodies of water” in
the last three years, and it continues to work to develop even more. The district
court erred because its conclusions are based on fundamental factual error, and
that error is material because West Virginia’s work on these TMDLs precludes
a finding of constructive submission.
In resolving the motion to stay, the district court tried to sidestep this
issue by noting that it limited the relief in this case to those biologically-
impaired waters “for which no TMDL has been developed to address that
impairment.” Att. 3 at 13. But that does not change the fact that the court’s
entire decision is based on the false premise that West Virginia has “stopped
issuing TMDLs for all biological impairments, not just ionic toxicity.” Att. 1 at
31 n.15. No other court has ever made a finding of constructive submission
against a state, like West Virginia, that not only has a robust TMDL program
and a plan to develop the challenged TMDLs, but which is also making
significant progress on the very issues raised by the plaintiffs (that is, biological
impairment). These facts preclude the application of constructive submission.
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B. The district court wrongly held that OVEC had standing to sue regarding waters throughout West Virginia.
OVEC submitted declarations that alleged an interest in about 50
different waters in West Virginia. The district court, however, did not limit
OVEC’s claims—or its injunction—to those waters. Instead, it held that OVEC
had standing to sue over all 573 biologically-impaired waters throughout the
State, even the hundreds of waters in which OVEC had alleged no
particularized interest.
The district court erred in reaching these conclusions. Under Article III
of the Constitution, standing is “not dispensed in gross.” Lewis v. Casey, 518
U.S. 343, 358 n.6 (1996). The “injury in fact” necessary to demonstrate
standing requires “more than an injury to a cognizable interest. It requires that
the party seeking review be himself among the injured.” Sierra Club v. Morton,
405 U.S. 727, 734–35 (1972). The Supreme Court has flatly rejected the kind of
theories that would allow OVEC to sue over waters in which it has not alleged
an interest, like the “ecosystem nexus.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 565 (1992). Instead, the courts have held that a plaintiff claiming
environmental damage “must use the area affected by the challenged activity
and not an area roughly ‘in the vicinity’ of it.” Id. (quotations omitted); see also
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990).
OVEC was required to demonstrate standing separately with respect to
each of these waters. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
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(2006); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185
(2000). By allowing OVEC to sue over injuries to waters in which its members
have not alleged an interest, the district court circumvented the requirements of
Article III standing and exceeded its constitutionally assigned role. See, e.g.,
Lewis, 518 U.S. at 357.
The Ninth Circuit did hold in Alaska Center that the plaintiffs had
standing to sue over the lack of TMDLs for all three million bodies of water in
Alaska, even though they had alleged an interest in only a small fraction of
those waters. 20 F.3d at 985; see also Sierra Club v. Browner, 843 F. Supp. 1304,
1309 (D. Minn. 1993). In that case, the State had never established any
TMDLs for any body of water, and the plaintiffs sought state-wide relief to
correct that wholesale and programmatic failure.
Even assuming that the Ninth Circuit’s decision is correct and consistent
with Article III, the district court should not have applied it here because
OVEC’s challenge is different. Rather than challenging the complete failure of
a State program, OVEC identified a specific set of waters, each of them
distinct, and it must demonstrate standing for each of those waters. It cannot
rely on a State’s complete failure to submit TMDLs as the plaintiffs did in
Alaska Center; instead, it must show that it members have interests in the
particular waters that are the subject of their suit. See Summers v. Earth Island
Inst., 555 U.S. 488, 495–96 (2009). If OVEC had challenged the State’s failure
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to establish a TMDL for a single body of water, for example, then plainly it
would have been required to demonstrate an interest in that body of water to
show standing. The fact that OVEC brought claims for 573 separate bodies of
water in one complaint does not change that requirement because standing is
not “dispensed in gross.”
The district court also erred by entering injunctive relief against EPA for
the hundreds of waters in which OVEC has not alleged a particularized
interest. The district court was obligated to narrowly tailor this injunctive relief
to protect OVEC’s alleged interests, and it did not do that.
II. EPA is likely to suffer irreparable harm unless this order is stayed.
The district court’s order requires EPA to approve or disapprove each of
the “no TMDLs” for the 573 waters at issue in this case. For each “no TMDL”
that EPA disapproves, the Clean Water Act will require EPA to establish its
own TMDL within 30 days. If this Court denies this motion, EPA could be
required to establish as many as 573 TMDLs within 44 days of this Court’s
decision.
That requirement imposes a huge burden on EPA. The development of
even a single TMDL is complex, expensive, and resource intensive.
Declaration of Helene Drago (Attachment 4) ¶ 4. EPA will first have to collect
the available data about these waters. Id. ¶ 4(b)(i). That collection will include
all kinds of data—not just monitoring data about pollution concentrations, but
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also data about land use, topography, precipitation, sources of pollution, and
hydrology. Id. Here, the existing data is not likely to be sufficient, so EPA will
likely have to develop more data at its own expense. Id. ¶ 4(b)(iii). In fact, we
already know that some data is not available because, for many of these waters,
the cause of the biological impairment has not yet been identified. Id. ¶ 7. That
means that, if EPA is required to develop its own TMDLs, it will probably
have to conduct its own in-stream monitoring, which is time-consuming and
expensive. Id. ¶ 4(b)(iii). And once EPA has the necessary data, it will still need
to work through the long series of steps necessary to establish a TMDL,
including developing its own numerical targets for ionic toxicity, modeling all
sources of pollution for each of these waters, and publishing the TMDLs for
public notice and comment. Id. ¶ 4(b)(vi)–(xvi).
In short, if EPA disapproves the “no TMDLs” for all of the waters
included in the district court’s order, it will have to establish 573 TMDLs. That
will take an enormous amount of time, effort, and money. EPA estimates that
the total cost to the agency could be between $3 million and $6 million. Id. ¶ 5.
In contrast, EPA Region III’s entire TMDL budget for 2016 was just $250,000.
Id.
As those numbers suggest, complying with the district court’s order
could easily consume EPA Region III’s entire TMDL budget for years to come.
EPA Region III already has important responsibilities under the Clean Water
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Act. It must review TMDLs submitted by all of the states in the Region,
including not only West Virginia, but also Pennsylvania, Maryland, Virginia,
Delaware, and the District of Columbia. Id. ¶ 8. It must review the 303(d) lists
of impaired waters submitted by the States, provide support and oversight of
their NPDES permitting program, and help with programs that address non-
point-source pollution. Id. EPA Region III also plays an important role in
efforts to clean up the Chesapeake Bay. Id. ¶ 9.
The district court’s order could force EPA to divert its limited resources
away from those responsibilities to establish hundreds of TMDLs in West
Virginia—TMDLs that the State is already planning to develop. This is not a
job that EPA would undertake now except for the district court’s order.
If EPA is required to establish these TMDLs, the harm to the agency will
be irreparable as well as significant. EPA will never be able to recover the
money, staff time, and resources consumed by the district court’s order. That
order forces EPA down the wrong path, and it should be stayed pending
appeal.
When the district court denied EPA’s motion to stay, it suggested that a
loss of agency resources and money cannot constitute irreparable harm. Att. 3
at 18–19. It is black-letter law that “recoverable” monetary losses are not
usually irreparable harm. See, e.g., Wis. Gas Co. v. FERC, 758 F.2d 669, 674
(1985). But here, these losses are not “recoverable”—if EPA is forced to spend
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millions of taxpayer dollars on the tasks necessary to establish these TMDLs, it
will never be able to recover that money even if it prevails on this appeal. See
Philip Morris USA Inc. v. Scott, 131 S. Ct. 1, 4 (2010) (“If expenditures cannot be
recouped, the resulting loss may be irreparable.”).
Moreover, the costs at issue here dwarf the agency resources that were at
issue in the cases cited by the district court, and these costs do threaten the
mission of the agency. EPA Region III’s TMDL program may be required to
spend up to $6 million, even though its annual budget is only $250,000.
Compare Att. 4 ¶ 5 with NRDC v. FDA, 884 F. Supp. 2d 108, 124 (S.D.N.Y. 2012)
(agency staff time on “literature review” did not constitute irreparable harm).
Finally, this harm is not speculative: for every “no TMDL” that EPA
disapproves, the Act will require it to establish a TMDL.
In contrast, OVEC will not suffer any significant harm to its interests if
the district court’s order is stayed pending appeal. OVEC will no doubt claim
that its members’ interests will be irreparably harmed by any delay in cleaning
up these impaired waters. But TMDLs do not, by themselves, restrict pollution.
Instead, once TMDLs are established, it will still take some time for those
TMDLs to result in any further limitations to discharges, either through
changes in NPDES permits or measures designed to reduce non-point-source
pollution. A brief stay of the district court’s injunction pending appeal will not
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significantly delay any reductions in pollution that might ultimately result from
these TMDLs.
III. A stay will serve the public interest.
The district court’s order contravenes the process created by the Clean
Water Act. It undoes West Virginia’s priorities for its TMDL program. It
dramatically alters the balance between the State and Federal governments
carefully set by the Clean Water Act. In short, this order confounds the
purposes of the Clean Water Act, and the public interest will be served by
granting this stay pending appeal. See Long v. Robinson, 432 F.2d 977, 979 (4th
Cir. 1970).
Conclusion
For all of the reasons set out above, the district court’s order should be
stayed pending appeal.
/s/ James A. Maysonett ______James A. Maysonett Attorney, U.S. Department of Justice Environment & Nat. Res. Division P.O. Box 7415 Washington, D.C. 20044 202-305-0216 [email protected]
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Certificate of Compliance
This brief complies with the length limit set out in Fed. R. App. P. 27(d)(2)(A) because it contains 5,190 words (excluding cover, tables, and
certificates).
/s/ James A. Maysonett ______James A. Maysonett Attorney, U.S. Department of Justice Environment & Nat. Res. Division P.O. Box 7415 Washington, D.C. 20044 202-305-0216 [email protected]
23 Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 28 of 235
Certificate of Service
I hereby certify that on May 8, 2017, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the
Fourth Circuit by using the appellate CM/ECF system.
The participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.
/s/ James A. Maysonett ______James A. Maysonett Attorney, U.S. Department of Justice Environment & Nat. Res. Division P.O. Box 7415 Washington, D.C. 20044 202-305-0216 [email protected]
24 Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 29 of 235
Attachment 1
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
OHIO VALLEY ENVIRONMENTAL COALITION, INC., SIERRA CLUB, WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and VIRGINIA RIVERS COALITION,
Plaintiffs,
v. CIVIL ACTION NO. 3:15-0271
GINA MCCARTHY, Administrator, United States Environmental Protection Agency and SHAWN M. GARVIN, Regional Administrator, United States Environmental Protection Agency, Region III,
Defendants.
MEMORANDUM OPINION AND ORDER
I. Introduction
Pending in this administrative review action are cross-motions for summary judgment
brought by Plaintiffs Ohio Valley Environmental Coalition, Inc., Sierra Club, West Virginia
Highlands Conservancy, and Virginia Rivers Coalition (collectively the “Environmental Groups”),
ECF No. 30, and by Defendants Gina McCarthy, Administrator of the United States Environmental
Protection Agency, and Shawn Garvin, a regional administrator for the same agency (collectively
“EPA”), ECF No. 38. In this citizen suit pursuant to the Federal Water Pollution Control Act
(Clean Water Act or “CWA”), 33 U.S.C §§ 1251–1388., and under the Administrative Procedure
Act (“APA”), 5 U.S.C. §§ 701–706, the Environmental Groups challenge EPA’s failure to Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 87 Filed 02/14/17 Pg: 31 of Page235 2 of 39 PageID #: 6936
disapprove actual or constructive submissions by the West Virginia Department of Environmental
Protection (“WVDEP”) that lacked total maximum daily loads (“TMDLs”) for certain West
Virginia waterbodies previously identified by WVDEP and EPA as “biologically impaired.” The
Environmental Groups seek an order declaring EPA’s alleged failure in violation of the CWA’s
process for reviewing state TMDL submissions, 33 U.S.C § 1313, and in violation of the APA’s
prohibition on agency action that is arbitrary, capricious, abusive of discretion, and otherwise not
in accordance with law, 5 U.S.C. § 706(2). 2d Am. Compl. 35–37, ECF No. 78. The Environmental
Groups also request an order declaring EPA’s decision to approve sets of TMDLs for a particular
watershed arbitrary and capricious because not all TMDLs for that watershed were submitted to
EPA. Id.
The Court, in an Order dated September 9, 2016, determined that the Environmental
Groups have standing to bring this case. ECF No. 81. On October 20, 2016, the Court heard oral
argument on the remaining issues raised in the cross motions for summary judgment.
The remaining issues raised by the cross motions for summary judgment require the Court
to determine: (1) EPA’s liability on Claims 1 and 2, which allege EPA violated a nondiscretionary
duty under the CWA to, first, disapprove WVDEP’s actual or constructive submissions of no
biological impairment TMDLs for biologically impaired waterbodies, some of which are impaired
specifically by ionic toxicity, and second, to establish those undeveloped TMDLs; and (2) EPA’s
liability on Claims 3 through 8, which allege EPA violated the APA by arbitrarily or capriciously
approving WVDEP’s TMDL Lists for certain waterbodies, which included no ionic toxicity
TMDLs despite those waterbodies’ state of ionic impairment.
Having considered the briefing, the administrative record, and the arguments raised at oral
argument, the Court GRANTS in part and DENIES in part the Environmental Groups’ Motion
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for Summary Judgment, ECF No. 30, and GRANTS in part and DENIES in part EPA’s Cross
Motion for Summary Judgment. ECF No. 38.
II. Background
A. The structure of the Clean Water Act
In 1972 Congress passed amendments to the Federal Water Pollution Control Act, which
are commonly known as the Clean Water Act (“CWA”). The goal of the CWA is to “restore and
maintain the chemical, physical, and biological integrity of the Nation’s waters” and to attain
“water quality which provides for the protection and propagation of fish, shellfish, and wildlife.”
33 U.S.C. § 1251(a). Congress expected the CWA to solve the Nation’s water quality crisis by
1985. Id. The CWA provides for two primary mechanisms to achieve this ambitious goal: point
source pollution controls embodied in the National Pollution Discharge Elimination System
(“NPDES”) and ambient water quality standards implemented through the Total Maximum Daily
Load (“TMDL”) program. See §§ 1311, 1313.
NPDES permits address point source pollution outfalls through technology-based controls.
§ 1311. Any discharge from a point source into waters within the jurisdiction of the CWA is
unlawful unless the discharge complies with an NPDES permit. Id. NPDES permits, however, do
not address ambient water quality of the waters into which permitted discharges are emitted.
TMDLs, the subject of this litigation, were designed to address ambient water quality in
bodies of water that do not meet water quality standards even after NPDES permits have been
issued to point source discharges. Id.; see also San Francisco BayKeeper v. Whitman, 297 F.3d
877, 880 (9th Cir. 2002). In other words, TMDLs place daily limits on the total load from all
sources of a pollutant or pollutants discharged into a body of water. The CWA gave states a key
role in developing water quality standards (“WQS”), identifying bodies of water that do not meet
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those standards, and developing TMDLs to bring those bodies of water into compliance. See §
1313; 40 C.F.R. § 130.7. EPA then reviews state action to ensure compliance with the CWA. Id.
Before a state can begin development of TMDLs, the CWA requires each state to develop
a WQS consistent with the CWA’s requirements. §§ 1313(a)(3)(A), (b), (c); see also 40 C.F.R. §§
130.2(d), 131.4(a). A WQS identifies the “designated uses” for a particular waterbody (e.g., public
water supply, support of aquatic life, or recreational uses) and a “water quality criteria” expressed
as a numeric limit or narrative condition that must be met for the waterbody to support the
identified uses (e.g., iron concentrations necessary for aquatic life). § 1313(c)(2); 40 C.F.R. §
131.3(i).
When existing pollution controls in a waterbody are not stringent enough to meet
applicable water quality standards and the waterbody therefore cannot support its designated uses,
that waterbody must be classified by the state as “impaired.” § 1313(d)(1); 40 C.F.R. § 130.7.
States must place all impaired waters on a list commonly referred to as a “303(d) List” for review
and approval by EPA. Id. States, through 303(d) Lists, also “establish a priority ranking of
impaired waterbodies, taking into account the severity of the pollution and the uses to be made of
such waters.” § 1313(d)(1)(A); see also 40 C.F.R. § 130.7(b)(4). States then submit 303(d) Lists
to EPA, and EPA must either approve or disapprove of the list within thirty days. § 1313(d)(2); 40
C.F.R. § 130.7(d)(2). The CWA does not require EPA to approve a state’s priority ranking. See §
1313. If EPA disapproves a state's 303(d) List, EPA must establish a list of waterbodies that should
have been included in the state’s 303(d) List within thirty days of the disapproval. Id.
Bodies of water listed on a state’s 303(d) List are, as demonstrated by their presence on the
list, not meeting the applicable WQS. § 1313(d)(1)(A). Where a body of water is not meeting its
WQS, the CWA requires states to develop a TMDL for that body of water in accordance with the
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waterbody’s priority ranking on the state’s 303(d) List. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1).
“A TMDL establishes the maximum daily discharge of pollutants into a waterway” from all
sources. Hayes v. Whitman, 264 F.3d 1017, 1021 (10th Cir. 2001) (citing Scott v. City of Hammond,
741 F.2d 992, 996 (7th Cir. 1984)). As a state develops a TMDL for a particular body of water in
accord with that waterbody’s priority ranking, EPA regulations permit a state to produce a TMDL
for each individual pollutant affecting a particular body of water or to produce a TMDL via a
“biomonitoring” approach. 40 C.F.R. § 130.7(c)(1)(i). As with 303(d) Lists, states must submit
their TMDLs to EPA, and EPA must approve or disapprove of the TMDLs within thirty days. §
1313(d)(2). If EPA disapproves of a TMDL, EPA must develop, submit for public comment, and
finalize a TMDL within thirty days. Id.
B. West Virginia’s statutory structure and history of biologic impairment TMDLs
West Virginia’s water quality standards include two narrative water quality criteria, which
are designed to protect uses of West Virginia’s streams related to aquatic life. Those criteria
provide:
3.2. No sewage, industrial wastes or other wastes present in any of the waters of the state shall cause therein or materially contribute to any of the following conditions thereof: . . . 3.2.e. Materials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life; . . . 3.2.i. Any other condition, including radiological exposure, which adversely alters the integrity of the waters of the State including wetlands; no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.
W. VA. CODE R. §§ 47-2-3.2.e–3.2.i. From 2002 through 2010, West Virginia used the
West Virginia Stream Condition Index (“WVSCI”) as its methodology for assessing compliance
with the narrative criteria that protect aquatic life. EPA Enclosure 1 Review of W. Va.’s 2012
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Section 303(d), J.A. 2597. Beginning in 1998 West Virginia used the health of the
macroinvertebrate community to assess compliance with narrative water quality standards. Id. By
2002 West Virginia, in conjunction with Tetra Tech, Inc. and EPA, developed the WVSCI. Id.;
The West Virginia GLIMPSS: Genus Level Index of Most Probable Stream Status, J.A. 2621
[hereinafter GLIMPSS]. “The WVSCI summarizes family [taxonomic] level identifications of
benthic macroinvertebrate assemblages to bioassess the condition of wadeable streams.”
GLIMPSS, J.A. 2621. WVSCI was developed using data collected by EPA and WVDEP from
riffle habitats in wadeable streams in West Virginia. EPA Enclosure 1 Review of W. Va.’s 2012
Section 303(d), J.A. 2597.
WVSCI is scaled from 0 (worst) to 100 (best). Id. The score is calculated through a
combined multimetric index that consists of six benthic community metrics. Id. A threshold score
of 68.0 was considered by WVDEP to represent a body of water fully supportive of narrative water
quality standards. Id. WVDEP standardized a score of 68.0 to represent the fifth percentile of
reference sites, meaning ninety-five percent of reference streams1 had a higher score. Id. In
WVDEP’s 2002 303(d) List through its 2010 list WVDEP incorporated a “gray zone” of 60.6 to
68.0. Id.; W. Va. 2002 Section 303(d) List, J.A. 1242. Bodies of water that scored in this range
were not considered impaired. Id. WVDEP claimed that a score in the gray zone did not statistically
support impairment; it believed that a score below 60.6 was a sign of statistically significant
impairment. Id. EPA did not agree, and in comments to WVDEP on its 2008 and 2010 303(d)
Lists, EPA explained that WVDEP’s gray zone was not statistically supportable. EPA Enclosure
1 Review of W. Va.’s 2012 Section 303(d), J.A. 2597–98 n. 3. Nonetheless, EPA approved 303(d)
1 “Reference conditions represent the characteristics of stream reaches that are least disturbed by human activities and are used to define benchmarks for chemical, biological, and habitat conditions for a region.” GLIMPSS, J.A. 2631. -6-
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Lists that employed the grey zone. Id. In general, WVSCI was an approved and accepted
methodology to determine biological impairment. See Id. at. 2597–98 (EPA used WVSCI without
the gray zone to list streams on WVDEP’s 2012 303(d) List).
Methodologies like WVSCI detect impairment, but “they do not identify the cause or
causes of the impairment.” TMDL Guidance, Suppl. J.A. 4592. Accordingly, in order to identify
causes of impairment—a necessary preliminary step for developing a TMDL—EPA has developed
a “stressor identification process.” Id. at 4593. In the development of TMDLs, West Virginia
routinely performs the stressor identification process. See, e.g., Dunkard Creek Watershed TMDL,
J.A. 756.
West Virginia considers ionic toxicity one stressor among many that cause biological
impairment, and in numerous waterbodies the State has found ionic toxicity a significant stressor,
giving rise to biological impairment. See, e.g., id. at 757–59. Since 2006, West Virginia has
determined that ionic toxicity is the stressor causing biological impairment in at least 179 streams.
W. Va. 2008 303(d) List, J.A. 1864, 1886, 1890, & 1897 (identifying ionic toxicity as the cause of
biological impairment for four streams in the Upper Kanawha Watershed, seven streams in the
Coal River Watershed, and six streams in the Gauley River Watershed); Upper Ohio South TMDL,
J.A. 1097 (identifying ionic toxicity as the cause of biological impairment for nine streams in the
Upper Ohio South Watershed); Dunkard Creek TMDL, J.A. 759 (identifying ionic toxicity as the
cause of biological impairment for four streams in the Dunkard Creek Watershed); Lower
Kanawha TMDL, J.A. 559. Plaintiffs also identify 396 other streams on West Virginia’s 2012
303(d) List which were listed as biologically impaired but for which a stressor identification has
not been performed. Compl. ¶ 65, ECF No. 78.
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Although WVDEP has identified ionic toxicity as a cause of biological impairment in many
streams throughout the state since at least 2006, WVDEP has not issued any TMDLs for ionic
toxicity. See 2008 W. Va. Integrated Water Quality Monitoring and Assessment Report, J.A. 1864
(explaining that Stillhouse Branch was determined to be biologically impaired due to ionic stress
as early as 2003 and placed on the 303(d) List in 2006 but TMDL development was deferred).
WVDEP has issued TMDLs for bodies of water deemed to be biologically impaired from causes
other than ionic toxicity, see, e.g., Upper Ohio South TMDL, J.A. 1097, but stopped issuing
TMDLs addressing biologic impairment regardless of the cause in 2012—the decision that sparked
this litigation, Letter from Randy C. Huffman, Cabinet Sec’y, WVDEP, to Jon M. Capacasa, Dir.,
Water Prot. Div., EPA Region III (Apr. 6, 2012), J.A. 3298.
In the years leading up to that decision, it was WVDEP’s position that it had insufficient
information “regarding the causative pollutants and their associated impairment thresholds for
biological TMDL development for ionic toxicity stressed streams.” Upper Ohio South Watershed:
TMDL Report Draft, Mar. 2009, J.A. 1024. Quizzically, it was also WVDEP’s position that “[a]
strong presence of sulfates and other dissolved solids exists . . . in all streams where ionic toxicity
has been determined to be a significant biological stressor. Id.; Dunkard Creek Watershed: TMDL
Final Report, Sept. 11, 2009, J.A. 759. As early as 2008 WVDEP designated “mining” as the
source of biological impairment for streams that had undergone a stressor identification process
that identified ionic toxicity as a significant stressor. 2008 W. Va. Integrated Water Quality
Monitoring and Assessment Report, J.A. 1864. In the same set of findings WVDEP explained
“water quality data indicates elevated conductivity and sulfates contributed by mining discharges,”
further supporting the correlation between sulfates and ionic toxicity. Id.
TMDL completion dates for waters determined to be impaired by “mining” (ionic toxicity)
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ranged broadly from 2006 in WVDEP’s 2006 303(d) List, to 2016 in its 2008 List, to 2013 in its
2010 List, to “TBD” in its 2012 List for the same stream. See 2008 W. Va. Integrated Water Quality
Monitoring and Assessment Report, J.A. 1864 (determining in 2003 to 2004 that ionic toxicity is
a stressor in Stillhouse Branch and first listing it on a 303(d) List in 2006 but delaying TMDL
development for ionic toxicity due to a lack of data on the causative pollutants of ionic toxicity);
see, e.g., W. Va. 2006 Section 303(d) List, J.A. 1676 (Stillhouse Branch. Listed as “CNA-
Biological”); W. Va. 2008 Section 303(d) List, J.A. 1897; W. Va. 2010 303(d) List, J.A. 2135; W.
Va. 2012 Section 303(d) List, J.A. 2378.2 All bodies of water biologically impaired by ionic
toxicity were, and still are, retained on WVDEP’s 303(d) Lists. Upper Ohio South Watershed:
TMDL Report Draft, Mar. 2009, J.A. 1024; Dunkard Creek Watershed: TMDL Final Report, Sept.
11, 2009, J.A. 759.
In the fall of 2010, EPA and WVDEP began a project to develop a pilot TMDL for ionic
toxicity in four streams in the Upper Kanawha Watershed. W. Va. Ionic Stress Background Info.,
Suppl. J.A. 5230–31. The project called for completing pilot ionic toxicity TMDLs for those
streams by August 2012. Id. In 2011, in the midst of the pilot project, EPA published “A Field-
Based Aquatic Life Benchmark of Conductivity in Central Appalachian Streams,” (“Benchmark”)
a peer-reviewed and highly respected study of the causes and effects of ionic toxicity in
Appalachian streams. See Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., LLC, 82 F. Supp. 3d
673, 679–80 (S.D. W.Va. 2015), aff’d, ___ F.3d ___, No. 16-1024, 2017 WL 35726 (4th Cir. Jan.
2 Although Stillhouse Branch is listed as impaired by “CNA-Biological” in the earlier 303(d) Lists, WVDEP’s statements in its 2008 Integrated Report indicate that ionic toxicity was identified in the stream as early as 2003. See W. Va. 2006 Section 303(d) List, J.A. 1676; 2008 W. Va. Integrated Water Quality Monitoring and Assessment Report, J.A. 1864. It is not clear why WVDEP designated Stillhouse Branch using the broader designation for biological impairment, “CNA-Biological,” without also identifying the underlying impairment as ionic toxicity. -9-
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4, 2017) [hereinafter OVEC]; A Field-Based Aquatic Life Benchmark for Conductivity in Central
Appalachian Streams (Final Report), EPA/600/R-10/023F (2011), J.A. 3301 [hereinafter The
Benchmark].
The Benchmark, among other things, identified the constituent salts (Ca, Mg, SO4, HCO3)
that contribute ions resulting in ionic toxicity as well as their source—surface mining, valley fills,
slurry impoundments, coal refuse fills, and deep mines. OVEC, F. Supp. 3d at 687. The Benchmark
also found that the constituent salts and their sources were nearly uniform across “the examined
region,” which includes Ecoregions 69 and 70 (most of West Virginia, excluding the Eastern
Panhandle). Id.; WVDEP Aquatic Life Use Assessment Methodology for Wadeable Streams and
Rivers, May 2016, J.A. 3971 (depicting a map designating West Virginia’s Level III Ecoregions).
“It is precisely because water in the examined regions is so consistently and uniformly dominated
by a distinct mixture of ionic pollutants that setting a benchmark for the Appalachian Region is
possible.” Id. (citing The Benchmark, 4, J.A. 3320). The Benchmark ultimately concluded that
when conductivity in a stream reaches 300 micro Siemens per centimeter (μS/cm), a measure of
conductivity that demonstrates a presence of dissolved ions, the stream is biologically impaired.
Id. (finding WVSCI score of 64 corresponds to 300 μS/cm. A score of 68 is the threshold below
which a body of water is considered impaired.).
In February 2012, after EPA published the Benchmark, WVDEP and EPA considered a
TMDL endpoint for conductivity of 720 μS/cm, well above the threshold in the Benchmark. W.
Va. Ionic Stress TMDL Dev., Suppl. J.A. 5224. Although WVDEP did not see the pilot project
through to the end, Tetra Tech, the same company that helped develop WVSCI, prepared a draft
report synthesizing what data the pilot project had collected up to that point. See WV Ion TMDL
Endpoint Analysis, Draft Technical Document, Dec. 2012, J.A. 3079. The report concluded, as did
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the Benchmark, that total dissolved solids and certain mixes and concentrations of particular ions
(Ca, Mg, SO4, HCO3) directly correlate with WVSCI scores—the higher the concentration, the
lower the WVSCI score. Id. at J.A. 3099. The authors of the report also explained that due to the
geologic and macroinvertebrate community similarities of ecoregions 69 and 70, the data collected
from each was used to produce general recommendations to reduce ionic toxicity in all streams in
those regions. Id., J.A. 3083–87.
In April 2012, WVDEP ended its participation in the pilot program before a pilot TMDL
could be fully developed. On April 6, 2012, WVDEP Secretary Randy Huffman sent a letter to
EPA Region III terminating West Virginia’s participation in the pilot project, claiming passage of
Senate Bill 562 (“SB 562”) precluded WVDEP from continuing to use WVSCI to determine
biologic impairment and therefore WVDEP could not continue to develop a TMDL using WVSCI.
Letter from Randy C. Huffman, Cabinet Sec’y, WVDEP, to Jon M. Capacasa, Dir., Water Prot.
Div., EPA Region III, J.A. 3298–99.
SB 562 requires WVDEP to develop a new assessment methodology for measuring
compliance with West Virginia’s narrative water quality standards but the new methodology must
be as protective or more protective than WVSCI. SB 562 states:
(f) The secretary shall propose rules measuring compliance with the biologic component of West Virginia's narrative water quality standard [which] requires evaluation of the holistic health of the aquatic ecosystem and a determination that the stream: (i) Supports a balanced aquatic community that is diverse in species composition; (ii) contains appropriate trophic levels of fish, in streams that have flows sufficient to support fish populations; and (iii) the aquatic community is composed of benthic invertebrate assemblages sufficient to perform the biological functions necessary to support fish communities within the assessed reach, or, if the assessed reach has insufficient flows to support a fish community, in those downstream reaches where fish are present. The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code that
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implement the provisions of this subsection. Rules promulgated pursuant to this subsection may not establish measurements for biologic components of West Virginia's narrative water quality standards that would establish standards less protective than requirements that exist at the time of enactment of the amendments to this subsection by the Legislature during the 2012 regular session.
2012 W. Va. Acts 562 (codified at W. VA. CODE § 22-11-7b).
WVDEP interprets SB 562 to preclude the use of the WVSCI methodology for finding
biological impairment from the date SB 562 was passed. W. Va. Draft 2012 Integrated Water
Quality Monitoring and Assessment Report, J.A. 2332. As a result, it is also WVDEP’s position
that “the effect of [SB 562] necessarily requires WVDEP to postpone the TMDL development
process” for all biologically impaired streams until a new methodology is developed and approved
by the Legislature. Letter from Randy C. Huffman, Cabinet Sec’y, WVDEP, to Jon M. Capacasa,
Dir., Water Prot. Div., EPA Region III, J.A. 3298–99. WVDEP applied its interpretation to both
the 179 waterbodies determined to be biologically impaired from ionic toxicity and the 396
waterbodies biologically impaired but for which no stressor identification has been conducted.
In response, EPA requested that WVDEP clarify its interpretation of SB 562 and its effect
on West Virginia’s WQS and other CWA mandated programs. Letter From Shawn Garvin,
Regional Adm’r, EPA Region III, to Randy C. Huffman, Cabinet Sec’y, WVDEP, (Nov. 6, 2012),
J.A. 2740–41. The record before the Court does not contain a formal response.
EPA, conversely, does not interpret SB 562 to preclude WVDEP from developing TMDLs
for biologically impaired streams. Draft TMDL for Selected Streams in the Monongahela River
Watershed, W. Va. EPA Comments—Oct. 24, 2013, J.A. 188. (“SB 562 does not appear to
expressly preclude TMDL development.”). It was also EPA’s stated position as late as 2014 that
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the Genus Level Index of Most Probable Stream Status (“GLIMPSS”)3 is a valid methodology
that could replace WVSCI and comply with SB 562. EPA’s Comments on W. Va’s 2014 Draft
Section 303(d) List, Jul. 11, 2014, J.A. 2752. EPA has urged WVDEP to adopt GLIMPSS since
2010.4 Id. at 2751. To date, WVDEP has not adopted a new methodology to replace WVSCI.
Due to WVDEP’s interpretation of SB 562, WVDEP stopped adding waters newly
determined to be biologically impaired to its 303(d) List because it believed that it could no longer
use WVSCI to determine biological impairment. EPA Enclosure 1, Review of W. Va. 2012 Section
303(d), J.A. 2603. WVDEP also did not set dates for completing TMDLs for any body of water
already found to be biologically impaired. Rather, DEP noted that in light of SB 562 those TMDLs
would be completed “TBD – To be determined. TMDLs will be developed as soon as practicable
after the effective date of rules enacted pursuant to [SB 562].” W. Va. 2012 Draft 303(d) List, J.A.
2364, 2368.
WVDEP submitted its 2012 303(d) List to EPA without adding new biologically impaired
waterbodies. EPA Enclosure 2, EPA’s List Dev. Process, J.A. 2603. EPA partially disapproved
that list because the State failed to “evaluate all existing and readily available water quality-related
data and information, specifically, information related to whether certain waters are achieving
3 WVDEP and EPA developed GLIMPSS in a joint effort as a next generation index “designed to provide higher resolution than . . . family-level WVSCI.” EPA’s Comments on W. Va’s 2014 Draft Section 303(d) List, Jul. 11, 2014, J.A. 2751. EPA described GLIMPSS as using “41 different biological metrics . . . tested across seasonal and geographic strata, primarily to refine expectation criteria for aquatic life use attainment in WV.” Id. GLIMPSS provides better diagnostic capabilities than WVSCI and a more accurate index “that more directly measures specific aquatic life attainment in West Virginia streams as it accounts for natural variability driven by geographic location, seasonality, and waterbody size.” Id. GLIMPSS was developed with nearly 400 reference sites, whereas WVSCI was developed with only 107. Id. Finally, EPA believes GLIMPSS “is also better suited than WVSCI to detect biological changes due to climate change.” Id. 4 Kentucky, Ohio, Pennsylvania, Maryland, and Tennessee use a form of genus-level assessment to determine biologic impairment. Id. -13-
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West Virginia’s narrative water quality criteria as applied to the aquatic life uses.” Id. In its letter
disapproving the 2012 303(d) List, EPA stated, “[r]ecognizing WVDEP’s position that it is unable
to carry out the requirement set forth in 40 CFR 130.7(b)(5), EPA has an obligation to take action
to ensure that the federal requirement is satisfied.” Letter from Shawn M. Garvin, Regional Adm’r,
EPA Region III, to Randy C. Huffman, Cabinet Sec’y, WVDEP (Mar. 25, 2013), J.A. 2584. EPA
fulfilled its obligations by developing a 303(d) List of waters in West Virginia that are not
achieving the narrative standards that protect the aquatic life use, i.e., by adding biologically
impaired waterbodies to West Virginia’s 2012 303(d) List using WVSCI as the methodology to
determine biologic impairment. Id.
In response, WVDEP’s director of the Division of Water and Waste Management, Scott
Mandirola, sent a letter to EPA’s Bill Richardson in Region III’s Water Protection Division.
Mandirola explained:
DEP is neither unable nor unwilling to carry out its responsibilities under the CWA, but it is both unwilling and unable to violate its obligations under [SB 562] or the West Virginia Administrative Procedures Act. [T]he West Virginia Legislature has made the policy decision that the biologic health of a stream . . . must be measured using more factors than simply a [WVSCI] score taken at one point in a watercourse.
Letter from Scott G. Mandirola, Dir, Div. of Water and Waste Mgmt., WVDEP, to Bill Richardson,
Water Prot. Div. EPA Region III (May 8, 2013), J.A. 2707.
Despite WVDEP’s interpretation of SB 562, in its draft 2014 303(d) List WVDEP stated:
“The DEP is proposing to retain most of the biological impairments identified in the Final West
Virginia 2012 Section 303(d) List and to add new listings using the WVSCI.” W. Va. Draft 2014
Section 303(d) List, Suppl. J.A. 4955 (emphasis added). Even though WVDEP resumed use of
WVSCI for identifying biologically impaired streams, WVDEP’s 2014 Draft 303(d) List again set
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no dates for completing TMDLs for biologically impaired streams, only noting that the date for
TMDL development was “TBD.” Id. at Suppl. J.A. 4958, 4975. WVDEP also explained that it
would not be developing biologic impairment TMDLs because state law precluded it from using
WVSCI. Id. at 4958. Both EPA and Plaintiffs submitted comments to WVDEP recommending that
WVDEP establish a schedule for developing TMDLs for biologically impaired streams. EPA’s
Comments on W. Va. 2014 Draft Section 303(d) List, July 11, 2014, J.A. 2753, 2785. In its 2014
303(d) List submitted to EPA for final approval on April 13, 2015, WVDEP deferred completion
dates for TMDLs for waterbodies that had previously been listed as “TBD” to dates ranging from
2020 to 2025. Letter from Scott Mandirola, Dir. Div. of Water and Waste Mgmt., WVDEP to
Evelyn MacKnight, Assoc. Dir., Office of Standards, Assessments and TMDLs, EPA Region III,
(Apr. 13, 2015), J.A. 3046; see also, e.g., W. Va. 2014 Section 303(d) List, J.A. 2805–06. Although
WVDEP set dates for biological impairment TMDLs, EPA did not take any additional action on
WVDEP’s schedule. From 2012 to the present the Court is unaware of any completed TMDLs for
biologically impaired waterbodies even though EPA has approved numerous TMDLs for other
pollutants with numeric limits, such as metals, pH, and chlorides. See, e.g., Letter from Jon M.
Capacasa, Dir. Water Prot. Div., EPA Region III, to Scott Mandirola, Dir. Div. of Water and Waste
Management, WVDEP, J.A. 38–39.
WVDEP has also been unable to promulgate a new methodology to determine biologic
impairment. In the initial aftermath of SB 562, WVDEP expected to develop a new methodology
in a year’s time. In the WVDEP Director’s April 6, 2012 letter to the EPA Region III
Administrator, the Director expected that a new methodology would be submitted to the
Legislature for approval within a year.5 Letter from Randy C. Huffman, Cabinet Sec’y, WVDEP,
5 By way of background, in order for WVDEP’s new methodology to become a final -15-
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to Jon M. Capacasa, Dir., Water Prot. Div., EPA Region III, J.A. 3298–99. WVDEP was not able
to meet this goal. In 2014, WVDEP predicted that it would be able to submit its new methodology
to the 2015 legislature, but then later that year determined that it would submit the methodology
to the 2016 legislature. W. Va. Draft 2014 Section 303(d) List, Suppl. J.A. 4954; 2014 W. Va.
Integrated Water Quality Monitoring and Assessment Report, J.A. 2767. To date, WVDEP has not
finalized a new methodology and now predicts that “it will still be some time before [WVDEP
has] sufficient data to compliment [sic] any benthic macroinvertebrate index.”6 EPA’s Surreply 4
n. 2, ECF No. 75 (quoting Letter from Scott Mandirola, Dir., Div. of Water and Waste Mgmt.,
WVDEP, to Bill Richardson, Water Prot. Div, EPA Region III (Jul. 5, 2016), https://www.epa.gov/
sites/production/files/2016-07/documents/wvdep_comments_re_epa_overlist_july_5_2016.pdf).
Pursuant to West Virginia law, a new methodology, even if it were now finalized by
WVDEP, would not be considered until the 2018 legislative session. See W. VA. CODE §§ 29A-3-
11, 29A-3-12. At oral argument counsel for the Environmental Groups requested the Court take
judicial notice of the list of regulations submitted to the West Virginia Legislature to be considered
binding regulation, it must first submit the proposed regulation to the Legislative Rule-Making Review Committee. W. VA. CODE § 29A-3-11. The Committee may then make a recommendation to the West Virginia Legislature to approve the regulation with or without changes or amendments, or the Committee may simply reject the rule. Id. If the Committee submits the regulation to the Legislature, the Legislature may approve, disapprove, or amend the regulation. W. VA. CODE § 29A-3-12. 6 The letter from which the quote is taken is not part of the administrative record submitted to the Court. In its Surreply, EPA requests that the Court take judicial notice of the letter, which is publically available on EPA’s website. ECF No. 75. “A court may take judicial notice of information publically announced on a party’s web site, so long as the web site’s authenticity is not in dispute and it is capable of accurate and ready determination.” Jeandron v. Bd. of Regents of Univ. Sys. of Md., 510 Fed.Appx. 223, 227 (4th Cir. 2013) (citing Fed. R. Evid. 201(b); O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007)). Plaintiffs do not dispute the authenticity of the of the website from which the letter was taken, and as a government record, it is capable of accurate and ready determination. The Court therefore takes judicial notice of the letter. -16-
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in the 2017 legislative session. The list is maintained on the Secretary of State’s website.7 Upon
inspection of the list, WVDEP has not submitted a proposed methodology to be considered by the
legislature for the 2017 session. Pl’s. Ex. 1, ECF No. 84-1, http://www.sos.wv.gov/administrative-
law/modified/Pages/default.aspx. In order for the Legislative Rule-Making Review Committee
and ultimately the West Virginia Legislature to consider a regulation in the 2017 legislative
session, the regulation must have been submitted to the Secretary of State and the Committee by
July 27, 2016. Summary of Regular Rule Making Steps, WEST VIRGINIA SECRETARY OF STATE,
http://www.sos.wv.gov/administrative-law/rulemaking/Pages/stepsummary.aspx (last visited
Nov. 16, 2016). The Court is unaware of any schedule, self-imposed or otherwise, for the
completion of WVDEP’s new methodology.
Plaintiffs filed suit pursuant to the citizen suit provision of the CWA, § 1365(a)(2),
asserting that EPA had a nondiscretionary duty to promulgate TMDLs for biologically impaired
bodies of water when WVDEP stated that it would not issue those TMDLs. Plaintiffs also brought
suit pursuant to 5 U.S.C. § 706(2) of the Administrative Procedure Act, claiming that EPA’s
approval of TMDLs for six watersheds was arbitrary and capricious, an abuse of discretion, or
contrary to law because the TMDLs for each watershed did not include TMDLs for streams
impaired by ionic toxicity.
III. Legal Standard
To obtain summary judgment, the moving party must show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the
7 In accord with the standard explained in footnote six, the Court takes judicial notice of the list of proposed regulations maintained on the West Virginia Secretary of State’s website. See id. -17-
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evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Here the parties agreed that the facts consist solely of the administrative record and
the parties do not dispute any relevant facts in that record. Summary judgment based on the facts
presented in the administrative record is therefore appropriate. See Occidental Eng’g Co. v. INS,
753 F.2d 766, 769 (9th Cir. 1985) (“[T]he function of the district court is to determine whether . .
. as a matter of law the evidence in the administrative record permitted the agency to make the
decision it did.”).
IV. Discussion
A. The CWA claims and background of the Constructive Submission Doctrine
When Congress passed the CWA, it set a strict deadline for development of 303(d) Lists
and the attendant TMDLs. Under the previous water pollution control regime, states declined to
follow federal directives to develop and submit water quality standards. Kingman Park Civic Assoc
v. EPA, 84 F.Supp.2d 1, 7 (D.D.C. 1999). A central motivation for Congress to enact the CWA
was to address this problem. Id. Congress lamented in 1971 that ‘[m]ore than 4 years after the
deadline for submission of standards, only a little more than half of the states have fully approved
standards.’” Id. (quoting S. REP. NO. 92-414, at 4 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668,
3671.
Consequently, the CWA commanded states to submit all TMDLs not more than one
hundred eighty days after EPA published a list of pollutants to be addressed by TMDLs and then
“from time to time” thereafter.8 33 U.S.C. § 1313(d)(2). Congress gave EPA one year from
8 Worth mentioning is that before the first round of TMDLs could be implemented states would also have to develop WQS and secure approval from EPA for them. Had Congress’ original schedule been followed, both WQS and TMDLs would have been in place eighteen months after Congress passed the CWA. § 1313(a). -18-
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October 18, 1972 to publish this list, making states’ 303(d) Lists and TMDLs due on April 16,
1974. See id. Congress, aware of the herculean task of collecting data on all pollutants affecting
all waterbodies on a state’s 303(d) List in such a short time, decided in favor of speed of
implementation rather than certainty, declaring that TMDLs should use “a margin of safety which
takes into account any lack of knowledge concerning the relationship between effluent limitations
and water quality.” § 1313 (d)(1)(c).
Not to be rushed, however, EPA did not identify pollutants for TMDLs until December 28,
1978—more than six years after the CWA deadline. 43 Fed. Reg. 60,662 (Dec. 28, 1978). States
were therefore not required to submit their TMDLs until June 26, 1979 and thereafter “from time
to time.” See § 1313(d)(2); NRDC v. Fox, 909 F.Supp. 153, 157 (S.D.N.Y. 1995) (citing Scott, 741
F.2d at 996 n. 10).
States and EPA largely ignored this deadline until the 1990’s and early 2000’s. See, e.g.,
San Francisco BayKeeper, 297 F.3d at 883 (California did not submit any TMDLs until 1991);
Friends of the Wild Swan, Inc. v. EPA, 130 F. Supp. 2d 1184, 1189 (D. Mont. 1999) (from 1979
to 1992 Montana did not submit any 303(d) Lists or TMDLs); Kingman Park Civic Assoc., 84 F.
Supp. 2d at 2 (The District of Columbia did not submit TMDLs for eighteen years); Am. Canoe
Assoc., Inc. v. EPA, 30 F. Supp. 2d 908, 919 (E.D. Va. 1998) (Virginia did not submit any TMDLs
for two decades); Sierra Club v. Hankinson, 939 F. Supp. 865, 868 (N.D. Ga. 1996) (Georgia did
not submit a 303(d) List until 1992 and submitted its first TMDL in 1994); Idaho Sportsmen’s
Coal. V. Browner, 951 F. Supp. 962, 964 (D. Idaho 1996) (Idaho did not submit a 303(d) List until
1989). Alaska Ctr. for the Env’t v. Reilly, 762 F. Supp. 1422, 1425 (W.D. Wash. 1991) (Alaska
had not submitted any TMDLs by 1991). As an example of the scope of the noncompliance at the
time the Alaska Center Court found “[i]n 1989 EPA Region IV approved 163 TMDLs, Region V
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approved 74, Region I approved 50, Region VIII approved 16, Region X approved 11. Regions II,
III, and VII however, approved no TMDLs.” Alaska Ctr., 762 F. Supp. at 1425 (Alaska,
Washington, and Idaho had not submitted any TMDLs by 1991).9
Congress apparently did not anticipate a total failure of compliance by EPA and the states,
and accordingly made no explicit provision in the CWA to address when states fail to submit a
TMDL. Congress, perhaps naively, expected the states to comply with the CWA and submit
TMDLs to EPA for review. As such, it was not clear from the language of the CWA what recourse
EPA had if states declined to submit TMDLs. Read literally, EPA’s duty to act was only triggered
upon a submission from a state. See § 1313 (“Each State shall submit to the Administrator . . . , for
his approval the waters identified and the loads established . . . .”).
The majority of courts faced with this problem have adopted the “constructive submission”
doctrine. See San Francisco BayKeeper, 297 F.3d at 882; Hayes, 264 F.3d at 1023; Kingman Park
Civic Assoc, 84 F. Supp. 2d at 5. The doctrine, established by Scott v. City of Hammond, concludes
that EPA’s duty to approve or disapprove a TMDL is triggered “if a state fails over a long period
of time to submit proposed TMDLs.” 741 F.2d at 996 (finding the doctrine applicable after three
years of inaction). The failure of a state to submit TMDLs to EPA is a “constructive submission”
to EPA of no TMDLs. Id. The Seventh Circuit reasoned that although the CWA does not explicitly
compel EPA to act when a state fails to act, it did not “believe that Congress intended that the
9 To put the number of TMDLs approved by the various regions in 1989 in perspective, Alaska alone has 3,000,000 lakes and thousands of rivers and streams that needed to be tested and incorporated into the state’s water quality management program. Alaska Ctr. for Env’t v. Browner, 20 F.3d 981, 985 (9th Cir. 1994). Out of those streams and lakes, even Alaska’s threadbare water quality program identified several hundred impaired bodies of water in need of TMDLs. Alaska Ctr., 762 F. Supp. at 1426 (emphasis added). No EPA region approved anywhere near several hundred TMDLs at the time. Id. Or, in Oklahoma’s case, the state had 1,500 outstanding TMDLs and planned to produce about 100 per year—as many or more TMDLs than the numbers approved by entire EPA Regions in 1989. See Hayes, 264 F.3d at 1024. -20-
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states by inaction could prevent implementation of TMDLs.” Id. at 997. The Seventh Circuit noted,
however, that the appeal came to it from a motion to dismiss and, with only the complaint before
it, it could not determine whether the states (Illinois and Indiana) “are, or will soon be, in the
process of submitting TMDL proposals.” Id. at 997 n. 11. If the states were in the process of
submitting the missing TMDLs, then the constructive submission doctrine might not apply. Id.
The Seventh Circuit’s condition has served as a guidepost for courts in their decisions
addressing constructive submissions. Where plaintiffs have brought claims alleging that a state has
failed to produce any TMDLs for any waters on its 303(d) List—a challenge to a statewide TMDL
program—Courts have declined to find a constructive submission if the state has produced at least
some TMDLs and has a credible plan to fulfill its CWA obligations. See Hayes, 264 F.3d at 1024.
“If a state has submitted or soon plans to submit TMDLs for its impaired waterbodies, the
constructive-submission analysis would be factually inapplicable.” Id. (finding a programmatic
challenge to Oklahoma’s TMDL process did not rise to a constructive submission because
Oklahoma had submitted “a number” of TMDLs and was making progress toward completing
1,500 in twelve years); see also San Francisco BayKeeper, 297 F.3d at 883 (finding a
programmatic challenge to California’s TMDL program did not prove a constructive submission
where California had submitted eighteen TMDLs and had a schedule to complete the rest).
On the other hand, where plaintiffs brought a programmatic challenge and a state has not
produced any TMDLs and is not in the process of producing them, courts have found a constructive
submission. See Alaska Ctr., 762 F. Supp. at 1429 (holding Alaska had not submitted any TMDLs
for any body of water in the state and had no plan to comply with the CWA, and therefore a
constructive submission had occurred).
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The doctrine is equally applicable to a single missing TMDL as it is to a programmatic
failure. “Naturally a state that has publically indicated . . . that it will not produce a specific TMDL
has violated its statutory obligations with regard to that TMDL, no matter how robust its program
otherwise is.” Sierra Club v. McLerran, No. 11-cv-1759, 2015 WL 1188522, at *7 (W.D. Wash
Mar. 16, 2015) see also Scott, 741 F.2d at 996–97 (finding a constructive submission doctrine
applicable where states did not submit TMDLs for a single body of water—Lake Michigan).
Thus, a constructive submission occurs where a “state’s actions clearly and unambiguously
express a decision to submit no TMDL for a particular impaired waterbody.” Hayes, 264 F.3d at
1024 (emphasis added).
B. Application of the Constructive Submission Doctrine to this case
By its own admission, WVDEP has chosen to pursue a new methodology to calculate
biological impairment and has stopped submitting TMDLs for biologic impairment, claiming a
state law does not permit it to comply with federal directives. It expressly informed EPA in 2012
that it would not be issuing any TMDLs for biologic impairment until it developed a new
methodology to determine biologic impairment and secured legislative approval of that
methodology. At the same time WVDEP withdrew from the very pilot program that, seen to
completion, would have resulted in a TMDL for ionic toxicity—an impairment that has avoided
any regulation thus far. For over four years, WVDEP has made successive promises to deliver the
new methodology to the West Virginia Legislature and for four years has failed to even develop a
methodology, to say nothing of actually submitting it to the Legislature. WVDEP has not produced
a schedule for when the methodology might be finished.
In the meantime, it has stopped complying with the CWA and denied it has the data to
fulfill its duties, all the while possessing a significant amount of information and two accepted and
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valid methodologies (WVSCI and GLIMPSS) to determine biologic impairment. Moreover, in an
apparent attempt to avoid EPA rejection of its 303(d) List, WVDEP used WVSCI to determine
biologic impairment of new streams while at the same time arbitrarily denying that it has the
authority to use WVSCI to determine biologic impairment for the development of TMDLs. All of
WVDEP’s plodding and EPA’s appeasement have resulted in an abjuration of WVDEP’s and
EPA’s duties committed to each by the CWA. WVDEP has publically stated that it will not develop
TMDLs for biologic impairment and has continued to move the goalposts for when it will begin
developing them once again. Consequently, WVDEP has constructively submitted no TMDLs for
biologic impairment to EPA, triggering EPA’s duty to approve or disapprove of the submission.
i. WVDEP’s biological impairment TMDL schedule
EPA attempts to disguise WVDEP’s decision by arguing that WVDEP understands it has
a duty to submit TMDLs for all waters listed on its 303(d) List, but that here WVDEP has only
postponed or reprioritized TMDLs for biologic impairment—not refused to act. Thus, EPA
contends, WVDEP will soon submit TMDLs and the constructive submission analysis is factually
inapplicable. As evidence, EPA points to the terms “pause,” “defer,” and “suspend” used in
WVDEP statements about its TMDL program. EPA also relies on WVDEP’s 2014 303(d) List
where, after EPA and plaintiffs prodded, WVDEP added dates by which TMDLs would be issued
for biologically impaired streams. The dates range from 2020 to 2025 with no explanation for how
WVDEP could achieve them. WVDEP explained that after considering resources and available
information the dates were “the next practical opportunity” based on WVDEP’s watershed-by-
watershed approach to TMDL development. 2014 W. Va. Integrated Water Quality Monitoring
and Assessment Report, JA 2785. There is ample evidence to doubt the credibility of these dates.
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West Virginia has a five-year schedule for developing TMDLs on a watershed-by-
watershed approach. Draft 2012 Integrated Water Quality Monitoring and Assessment Report, J.A.
2349; see also EPA Memo. Supp. Cross-Mot. Summ. J. 9, ECF No. 73. “WVDEP’s TMDL
development program has historically attempted to comprehensively address all streams and all
impairments in a particular watershed simultaneously.” EPA Memo. Supp. Cross-Mot. Summ. J.,
at 9 (quoting Dunkard Creek Watershed: TMDL Report, Draft, J.A. 821). In other words, it takes
WVDEP five years to develop TMDLs for any given watershed. Draft 2012 Integrated Water
Quality Monitoring and Assessment Report, J.A. 2349. If West Virginia’s 2020 completion date
for biologically impaired bodies of water is to be believed, West Virginia, by its own stated
process, would have had to start developing biologic impairment TMDLs by 2015.
Yet, currently, WVDEP believes it does not have an approved methodology to use to
determine biologic impairment and it will be sometime before the legislature approves one. Even
if WVDEP finalized a methodology today, the earliest that such a methodology could be used is
2018. WVDEP missed the deadline to submit regulations to the 2017 legislature and now must
wait to submit any methodology to the 2018 legislature. Even 2018 assumes that the West Virginia
Legislature will approve whatever final methodology WVDEP creates in the 2018 legislative
session. There is obviously no guarantee that it will.
Moreover, although belied by the scientific data in the record,10 WVDEP claims that it
lacks necessary information to develop a TMDL for ionic toxicity (one of the impairments that
10 In section II.B of this Opinion, the Court recounted WVDEP’s estimation in 2006 that dissolved solids and sulfates are highly correlated to ionic toxicity. The section also summarizes EPA’s peer reviewed Benchmark for ionic toxicity in streams in the Appalachian region and Tetra Tech’s data analysis of data collected during WVDEP and EPA’s pilot ionic toxicity TMDL project. Although the data on ionic toxicity appears to be extensive, including determinations of levels of ionic toxicity and the causative ions which result in impairment, EPA credits WVDEP’s claims that it still lacks certain data necessary to create an ionic toxicity TMDL. -24-
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leads to biologic impairment). Assuming the Legislature approves whatever methodology
WVDEP ultimately develops, WVDEP will have to then spend time conducting research to
address ionic toxicity. And, if EPA and WVDEP are to be believed, creating a TMDL for ionic
toxicity is a complex task that cannot be rushed: very likely adding a year or more to the ultimate
development of a TMDL for ionic toxicity. Given the statement by WVDEP in its most recent
letter, however, that it will still be some time before a methodology is completed, that timeline
may be overly optimistic, casting serious doubt on WVDEP’s ability to develop TMDLs by
2025—much less 2020.
Naturally, the Court does not believe that WVDEP is obliged to produce a TMDL
immediately upon the addition of a body of water to a 303(d) List, but it must at least have a plan
to complete it. See Hayes, 264 F.3d at 1024. The distinction that has become apparent in TMDL
jurisprudence is between states that have neither produced the delinquent TMDLs nor have any
plan to do so, and those that at the very least have a concrete plan to comply with their duties.
Compare, e.g., Sierra Club v. Browner, 843 F. Supp. 1304, 1313 (D. Minn. 1993) (finding a
constructive submission of all TMDLs in the state did not occur because Minnesota had completed
18 TMDLs) with Alaska Ctr., 762 F. Supp. at 1429 (finding Alaska had not produced any TMDLs
and had no plan to comply with its CWA duties).
Put another way, courts that have found a constructive submission inapplicable have gone
to great lengths to emphasize that at least something related to the development of the challenged
TMDLs was being done. See Fox, 93 F. Supp. 2d at 540 (finding constructive submission doctrine
inapplicable because New York submitted some of the missing TMDLs and formulated a plan to
for finishing the rest of the missing TMDLs); Idaho Sportsman Coal., 951 F. Supp. at 967–68
(finding constructive submission inapplicable because Idaho had submitted three of the missing
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TMDLs and proposed a schedule for completing the rest); Hankinson, 939 F. Supp. at 871 n. 6
(finding although plaintiffs challenged Georgia’s statewide TMDL program, “[t]he Court does not
find the constructive submission analysis to be appropriate for this case because Georgia has made
some TMDL submission, albeit totally inadequate.” (emphasis in original)). “Even in Scott . . . the
Seventh Circuit remanded the case to the district court for a determination whether the state was
in the process of submitting any TMDLs . . . .” San Francisco BayKeeper, 297 F.3d at 883.
The Ninth Circuit found this distinction dispositive. In San Francisco BayKeeper, plaintiffs
brought a challenge claiming that California had not submitted any TMDLs statewide and
therefore had made a constructive submission of no TMDLs in the state, requiring EPA to act. San
Francisco BayKeeper, 297 F.3d at 883. The district court found, and the Ninth Circuit agreed, that
no constructive submission had occurred because California had actually produced eighteen
TMDLs and had established a “concrete” schedule for completing all TMDLs for the entire state.
See, San Francisco BayKeeper, Inc. v. Browner, 147 F. Supp. 2d 991, 1000 (N.D. Cal 2001), aff’d
sub nom. San Francisco BayKeeper v. Whitman, 297 F.3d at 883. In fact, California was in the
process of conducting 200 TMDL studies. Id. Accordingly, the Ninth Circuit affirmed the district
court’s holding that California had not made a statewide constructive submission of no TMDLs.
San Francisco BayKeeper, 297 F.3d at 883; see also Hayes, 264 F.3d at 1023 (“If a state has
submitted or soon plans to submit TMDLs for its impaired waterbodies, the constructive
submission analysis would be factually inapplicable.”).
Conversely, where Alaska failed to develop TMDLs and had no credible plan to complete
them, the same scenario the court is faced with here concerning a subset of TMDLs, the district
court found that a constructive submission had occurred. See Alaska Ctr., 762 F.Supp. at 1429.12
12 The Court is aware that, unlike this case, Hayes, San Francisco BayKeeper, and Alaska -26-
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The facts presented to the Court in this case bare a much closer resemblance to those addressed by
the Alaska Center Court than those presented to the San Francisco BayKeeper Court. WVDEP has
not produced biological impairment TMDLs since 2012, stated that it cannot produce them, and
has not proposed a credible schedule for producing them.
In light of WVDEP’s statements that it will not be producing biological impairment
TMDLs and its failure to produce a credible plan to comply with its CWA duties, it has made a
constructive submission of no biological impairment TMDLs that triggered EPA’s duty under the
CWA to approve or disapprove of the submission.
ii. WVDEP’s reasons for not developing biological impairment TMDLs and EPA’s responses
Further eroding WVDEP’s credibility, and calling into question EPA’s acquiescence, is
WVDEP’s use of WVSCI in its 2014 303(d) List to determine biologic impairment. Since the
passage of SB 562, it has been WVDEP’s stated position that the legislation barred WVDEP from
using WVSCI, and because it could not use WVSCI to determine biologic impairment, it could
not develop TMDLs for biologic impairment until a new methodology was developed. Then,
without explanation, WVDEP stated in its 2014 303(d) List that it would use WVSCI to add new
biologically impaired streams to that list. In that same list, however, WVDEP concluded that SB
562 precluded it from using WVSCI and therefore it could not develop TMDLs for biologic
Center were all challenges alleging a complete statewide failure to produce any TMDLs for any body of water. 264 F.3d at 1023; 297 F.3d at 883; 762 F. Supp. at 1429. Nevertheless, the interpretation and application of Scott by these cases to require some amount of effort to complete missing TMDLs in order to avoid a constructive submission is not confined to a wholesale statewide failure. It is equally applicable to particular groups of TMDLs or even single missing TMDLs. See Scott, 741 F.2d at 992. The Court will take up this issue in more detail in Section IV.B.iii below. -27-
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impairment. WVDEP’s position on SB 562 defies explanation and critically undermines
WVDEP’s excuse for not developing the TMDLs at issue and accordingly EPA’s inaction.
Moreover, SB 562, a state law, cannot be the justification for WVDEP’s failure to comply
with the CWA. It is a bedrock principle of American federalism enshrined in Article VI of the
Constitution that a state law in itself cannot limit the scope of an otherwise constitutional federal
law. “[a]bsent statutory authority in the CWA . . . it cannot possibly be urged that . . . state law in
itself can contradict or limit the scope of the CWA, for that would run squarely afoul of our
Constitution’s Supremacy Clause. N. Plains Res. Council v. Fidelity Expl. & Dev. Co., 325 F.3d
1155, 1165 (9th Cir. 2003) (citing U.S. Const. art. VI, cl. 2; Nat’l Audubon Soc’y, Inc. v. Davis,
307 F.3d 835, 851 (9th Cir. 2002)).
Yet, in effect, that is exactly what EPA and WVDEP are claiming when EPA accepts
WVDEP’s position that state law precludes it from issuing TMDLs required by the CWA.
Whatever the effect of SB 562, it cannot “contradict or limit the scope of the CWA.” Id. When it
became clear to EPA that WVDEP would rely on state law to stop complying with federal law,
EPA was obliged to act to ensure the CWA is enforced expeditiously. See § 1313. At first, EPA
reminded WVDEP of the supremacy of federal law when it disapproved WVDEP’s 2012 303(d)
List and overlisted a number of impaired bodies of water. “Even assuming that SB 562 . . .
precludes WVDEP from assessing state waters against . . . narrative water quality criteria . . . , SB
562 is a state law that does not override federal requirements.” EPA Enclosure 1: Review of W.
Va.’s 2012 Section 303(d), J.A. 2599. Yet, when considering TMDLs, EPA accepts WVDEP’s
claim that state law precludes it from issuing TMDLs, choosing to construe it as a “pause” in
TMDL development.
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For support EPA relies on language in the CWA that permits states to submit TMDLs
“from time to time” to argue that the CWA imposes no specific schedule on the creation of TMDLs
and therefore WVDEP may “pause” its program. Rather, EPA’s argument goes, states may
produce TMDLs at a pace consistent with priority ranking and available resources, and here the
state mandated search for a new methodology has consumed WVDEP’s resources. Although the
Court seriously doubts that a state could avoid the mandatory duty to develop TMDLs by claiming
that the CWA imposes no set schedule to develop them,13 EPA’s argument is inapplicable here.
See Scott, 741 F.2d at 998 (“We cannot allow the states’ refusal to act to defeat the intent of
Congress that TMDL’s be established promptly.” (emphasis added)).
13 The context of the statutory language cited by EPA runs counter to EPA’s intended meaning. The “from time to time” language is found in the same subsection where Congress required states to submit all TMDLs six months after EPA published its list of pollutants to be addressed by TMDLs. § 1313(d)(2). Rather that providing cover for states to plod along, the section indicates that Congress conceived the TMDL program as continuous and iterative. Once all TMDLs were promulgated and incorporated into a state’s water management plan where they would be used to set NPDES permit limits, states were expected to continuously monitor ambient water quality. § 1313(d)(1)(A); 40 C.F.R. § 130.7(d). Where changes in water quality were detected, old TMDLs would need to be revised or retired and new TMDLs might have to be issued if new pollutants started to appear. Id. It is quite obvious that Congress could not predict when and if circumstances for a particular impaired body of water would change and therefore could not command states to produce replacement or new TMDLs on any set schedule. What is clear from the passage of the CWA is that the impetus for amending the Federal Pollution Water Control Act was state intransigence. Kingman Park Civic Ass’n, 84 F.Supp.2d at 7. “Although 1965 legislation required the states to develop water-quality standards for interstate waters within their boundaries, Congress lamented in 1971 that ‘[m]ore than 4 years after the deadline for submission of standards, only a little more than half of the states have fully approved standards.’” Id. (quoting S. REP. NO. 92-414, at 4 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668, 3671.) And lest EPA forget, the stated policy enacted by the CWA was to eliminate the discharge of pollutants by 1985. § 1295(a). The Court seriously doubts that Congress would have created a mandatory regulatory structure that it believed would cure the nation’s water quality ills in a short time only to permit states to develop TMDLs at whatever pace the state deemed fit. “[F]rom time to time” read in context, embodies Congress’ intent that once all TMDLs were issued, states would continue to monitor their waters and revise TMDLs as it became necessary—not that states can sit on their hands until they are ready to act. -29-
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What EPA ignores about WVDEP’s actions since SB 562 is that WVDEP is not developing
TMDLs for biologic impairment. It is developing a methodology to determine biologic
impairment—the two are not equivalent. The CWA does not permit a state to discontinue
developing required TMDLs to work on some other aspect of its water regulation scheme. It is
beside the point that EPA believes that the CWA does not impose a set schedule for development
of TMDLs. What is undisputed, and determinative, is that states must develop TMDLs. WVDEP
has stated unequivocally that it is not developing TMDLs for biologically impaired bodies of
water. If WVDEP had continued to work on these TMDLs while it developed a new methodology,
or produced a credible schedule for developing TMDLs, EPA’s argument might be compelling.
See San Francisco BayKeeper, 297 F.3d at 883; Hayes, 264 F.3d at 1023; Browner, 843 F. Supp.
at 1313 (finding that a statewide challenge to Minnesota’s TMDL program failed because
Minnesota had concrete plans approved by EPA to produce the missing TMDLs and had produced
43 already). The fact is WVDEP has done neither, and accordingly EPA’s argument is
inapplicable.14
iii. EPA’s arguments concerning TMDL prioritization
EPA counters that the Court cannot apply the constructive submission doctrine to a subset
of TMDLs within a state without invading the discretion of the state committed to it by the CWA
to prioritize the development of TMDLs. This same argument was rejected in McLerran, 2015 WL
1188522, at *7, and is now rejected here.15 There is no support in TMDL jurisprudence for EPA’s
14 Also troubling to the Court, but not addressed by either party, is that by refusing to use a methodology to determine biologic impairment, WVDEP has consequently stopped enforcing its narrative water quality standards codified at §§ 47-2-3.2.e–3.2.i of the West Virginia Code. Yet, SB 562 did not change the narrative water quality standards, and importantly, it requires that any enforcement of the narrative water quality standards through a new methodology is at least as protective as the use of WVSCI. W. VA. CODE § 22-11-7b. 15 The McLerran Court addressed many of the same arguments raised by EPA in this case -30-
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contention. In fact, the case that established the constructive submission doctrine, Scott, 741 F.2d
at 992, was a challenge to missing TMDLs for a single body of water, Lake Michigan. Presumably
both Illinois and Indiana are required to develop TMDLs for more bodies of water than just Lake
Michigan. The Scott Court had no trouble finding the doctrine applicable to the plaintiff’s
challenge to a specific subset of TMDLs. See id.
Moreover, later cases such as San Francisco BayKeeper and Hayes, on which EPA relies,
addressed programmatic challenges to a statewide TMDL program. See 297 F.3d at 882–83; 264
F.3d at 1024. Thus, as already noted earlier, where plaintiffs had challenged the entire program, a
and therefore provides persuasive authority for addressing EPA’s arguments here. See 2015 WL 1188522, at *5–*7. Although EPA has decided to argue this case in a similar manner, raising many of the same arguments, the outcome of McLerran rests on facts materially distinct from this case. The McLerran Court held that a constructive submission had not occurred where the state of Washington had not finalized a draft TMDL for PCBs in the Spokane River. Id. at *8–*9. Rather, Washington created a “task force” that would address PCBs in the Spokane. Id. at *5. After Washington formed the task force in lieu of the TMDL, the plaintiffs requested EPA to make a determination whether Washington had made a constructive submission. Id. EPA found that Washington’s delay of the TMDL was within its discretion if a TMDL was even needed because of gaps in data and the delays associated with preparing a TMDL. Id. The plaintiffs brought both CWA and APA claims and the court found that a constructive submission had not occurred because Washington did not know the source of 57% of the PCBs. Id. at *8. Thus, compliance with the TMDL would unfairly fall on identified sources. Id. The court further held that the plaintiffs’ assertion that Washington had all but completed the TMDL and then stepped away was incorrect. Id. at *9. The court credited Washington’s interpretation of a draft of the TMDL released as incomplete and preliminary and determined that Washington still needed to conduct additional analyses to complete the TMDL. Id. “Therefore, [Washington’s] failure to submit the PCB TMDL did not clearly and unambiguously indicate its intent to abandon the PCB TMDL.” Id. The court, however, found that EPA’s determination that the task force was a suitable alternative to a TMDL was contrary to law under the APA chiefly because the task force had no goal, no timeline, and did not explain whether it would ever submit a TMDL. Id. at *10–*11. In this case, EPA has made no formal determination of WVDEP’s decision to stop issuing biological impairment TMDLs, although it has voiced concern. More importantly, and as will be discussed in greater detail, gaps in data have not precluded the development of the missing TMDLs—a state law has. Even still, it appears to the Court that there has been a significant accumulation of high quality data identifying not only the sources but also the constituent ions and ion mixes that produce ionic toxicity. Finally, WVDEP has stopped issuing TMDLs for all biological impairments, not just ionic toxicity, but admittedly has sufficient information to issue those TMDLs as evidenced by WVDEP’s production of those TMDLs before SB 562 was passed. -31-
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showing that the state was producing some TMDLs made a constructive submission inapplicable.
See id. The question raised in those cases was whether California and Oklahoma had abandoned
their TMDL programs. Id. Evidence that proved that both states had developed some TMDLs
demonstrated that both states had functioning TMDL programs, however meager. Id. Importantly,
those cases and others like them did not address the applicability of the doctrine to challenges
aimed at some but not all TMDLs in a state. Thus, they do not support EPA’s contention. See id.;
Fox, 93 F.Supp.2d at 542. But, as already noted, Scott was such a challenge, and the doctrine was
found applicable. 741 F.2d at 992. More recently, the McLerran Court addressed the issue in more
detail and wisely found that a state’s duty to develop a TMDL is not diluted by its ability to choose
in which order it will develop required TMDLs. 2015 WL 1188522, at *7. Otherwise, the court
reasoned, a state could continually use prioritization to avoid developing particular TMDLs—an
absurd result in light of the text of the CWA. Id.
It is undisputed that the CWA permits states to prioritize waters on its 303(d) List and
commands states to develop TMDLs in accord with that prioritization. § 1313(d). Where a state
explicitly announces that it is not developing TMDLs, the state has not reprioritized the TMDLs—
it has instead determined that no TMDL will be adopted for an extended and indefinite period.
Here, WVDEP has declared that it will not develop TMDLs for biologic impairment and has spun
its wheels on something else entirely under the guise of a reprioritization. Reprioritization,
however, implies that WVDEP is working on the missing TMDLs, just in a different order. But in
reality, WVDEP is not working on the missing TMDLs at all. It is working on an assessment tool
with no end in sight and no plan to develop the missing TMDLs anytime soon. “[I]t would be
absurd for the Court to hold that a state could perpetually avoid this requirement under the guise
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of prioritization; such an administrative purgatory clearly contravenes the goal and purpose of the
CWA.” Id.
In a related argument, EPA maintains that only a programmatic failure of a state’s TMDLs
can result in a constructive submission. EPA is flat wrong. To return to the Scott case, the Seventh
Circuit dealt with a challenge to some, but not all, TMDLs in Illinois and Indiana. 741 F.2d at 992.
The plaintiff did not argue that the two states had failed to produce any TMDLs, and the Scott
Court did not believe it necessary for the plaintiff to prove a complete programmatic failure in
order for the court to find that a constructive submission was applicable to the case. Id. at 998; see
also McLerran, 2015 WL 1188522, at *7 (“[A] state’s discretion to prioritize TMDLs over other
TMDLs does not remove its ultimate obligation to produce a TMDL for each water pollutant of
concern in every 303(d) water segment.”).
The Scott Court’s holding is consistent with the text of the CWA. Indeed, the CWA
imposes a duty on states to produce TMDLs. See § 1313(d)(1)(C). It does not impose a duty on
states to simply have a TMDL program. See id. Although the former may necessitate the latter, the
converse is not true. The presence of a robust TMDL program does not discharge the specific duty
imposed by the CWA to produce a TMDL for each body of water on a 303(d) List. McLerran,
2015 WL 1188522, at *7. The Court thus rejects the proposition that a TMDL challenge must
challenge a statewide failure.
iv. EPA’s argument concerning gaps in WVDEP’s data
EPA’s final argument addresses TMDLs for biologic impairment caused by ionic toxicity
and insists that although WVDEP’s stated policy is that SB 562 precludes the development of the
missing TMDLs, WVDEP also lacks crucial information about the constituent pollutants that cause
ionic toxicity. WVDEP, EPA argues, should be permitted to postpone TMDL development where
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it lacks necessary information without triggering EPA’s duty to develop TMDLs in their place.
There are at least two problems with EPA’s argument, in addition to the previously discussed
presence of high quality data about ionic toxicity in the record. See supra Section II.B. First,
WVDEP created its own information gap by withdrawing from the pilot TMDL program with
EPA. Had WVDEP continued its work with EPA, EPA might have a credible argument that ionic
toxicity is a complex problem that requires years to develop a TMDL. As it stands, however,
WVDEP’s claimed ignorance about ionic toxicity, and the best way to create a TMDL to address
it, is self-imposed. States, and in this case EPA, cannot be permitted to hide behind “technical
difficulties” of their own making to avoid federal statutory duties.
EPA’s claim that it was justified in not assuming its duties because WVDEP should be
permitted to conduct the research needed to develop an ionic toxicity TMDL is a diversion from
the relevant issue in this case—WVDEP’s decision to stop issuing TMDLs for biologic impairment
because of SB 562. The Court has no doubt that in 2010 WVDEP lacked necessary information to
develop an ionic toxicity TMDL. A constructive submission suit at that time may have been
premature. Nevertheless, in the last four years WVDEP has not completed the first step to fill in
the blanks, claiming quite publically that state law barred it from continuing its work on any
biologic impairment TMDL, including ionic toxicity TMDLs. It is this policy, and not technical
issues, that has stopped WVDEP from developing required TMDLs. Accordingly, EPA’s
arguments about missing data or the complexity of the problem miss the point that WVDEP
stopped producing ionic toxicity TMDLs because of SB 562.
Second, the excuse given for not developing any biologic impairment TMDLs (including
ionic toxicity TMDLs) is SB 562, not gaps in crucial information. Gaps in information arguably
exist, although created by WVDEP, but WVDEP has stopped developing all TMDLs that address
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biologic impairment. EPA and WVDEP only claim to lack information about ionic toxicity, not
the other causes of biologic impairment. In fact, while WVDEP has never issued a TMDL for ionic
toxicity, before SB 562, WVDEP issued numerous TMDLs to address other causes of biologic
impairment. See, e.g., Decision Rationale Total Maximum Daily Loads for Selected Streams in
the Upper Ohio South River Watershed W. Va., Sept. 2009, J.A. 1035–37. Surely informational
deficiencies are not keeping WVDEP from developing TMDLs for other causes of biologic
impairment. Thus, EPA’s argument again misses the mark. It was not gaps in data, or any other
technical problem, that forced WVDEP to abandon biological impairment TIMDLs, it was SB
562.
Consequently, the Court feels obliged to note that the text of SB 562 does not change the
narrative WQS and requires that any new methodology “may not establish measurements . . . that
would [be] less protective than [WVSCI].” This requirement sets a floor for whatever methodology
is eventually developed, meaning that any new methodology should not generally result in
delisting streams on West Virginia’s 303(d) List already found to be impaired as determined by
WVSCI. Bodies of water that already have been determined to be biologically impaired as a result
of their WVSCI score, the bodies of water at issue here, will therefore still be considered impaired
when using a new methodology. Were WVDEP to develop TMDLs for these bodies of water using
WVSCI, they would quite obviously meet West Virginia’s WQS and fulfill its CWA duties.
Moreover, had WVDEP adopted GLIMPSS as a way to comply with SB 562, as EPA urged in
2014, and produced TMDLs based on GLIMPSS, these would also quite obviously comply with
West Virginia’s WQS and the CWA. This is all to say that WVDEP could develop TMDLs with
either of the two valid and accepted methodologies and still develop a new methodology with little
consequence for TMDLs produced with the established methodologies.
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That approach, in practice, may mean that if a TMDL is produced using WVSCI, WVDEP
might need to revisit that TMDL in the future, as it will have to do for all the biological impairment
TMDLs issued before 2012 because they were developed using WVSCI. Of course, the use of
GLIMPSS might prospectively solve that issue. Still, a review should not be a major impediment
since it is WVDEP’s policy to conduct a TMDL review process in every watershed every few
years as part of its TMDL program. WVDEP’s refusal to produce TMDLs, using either WVSCI
or GLIMPSS, makes little sense when streams that already have been determined to be impaired
will not be delisted with a new methodology and will still need a TMDL.
Lastly and most importantly, the fundamental federal structure of our Constitution
demands that West Virginia’s federal duties must prevail over SB 562. Notwithstanding, with
GLIMPSS as a viable alternative that could comply with SB 562, it is not entirely clear what reason
WVDEP has for not producing biological impairment TMDLs. What is clear, however, is that EPA
must act when WVDEP’s actions either clearly run afoul of federal supremacy, if SB 562 is truly
the reason for WVDEP’s inaction, or have no basis in fact, as when WVDEP laments that it has
no methodology that it can use. Neither reason is a proper basis for EPA to accept inaction.
C. Conclusion
WVDEP has explicitly stated first that it cannot develop biologic impairment TMDLs due
to state law and then proposed dates to develop TMDLs, which the Court finds are unsubstantiated
and unrealistic. This is especially true for the subset TMDLs that address ionic toxicity. WVDEP
has not even been able to produce a schedule for when it will finalize its new assessment
methodology. It is clear and unambiguous that WVDEP has decided not to submit TMDLs for
biologically impaired bodies of water. WVDEP’s complete abdication of its CWA duties and utter
lack of a plan to comply with those duties is a constructive submission of no TMDLs for all
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biologically impaired bodies of water, triggering EPA’s nondiscretionary duty to approve or
disapprove of the submission.
D. The APA claims
The Environmental Groups also move for summary judgment on their APA claims. EPA
brought a cross motion for summary judgment directed at the Environmental Groups’ APA claims.
The Environmental Groups’ APA claims challenge EPA’s approval of TMDLs for six watersheds
that did not include TMDLs for ionic toxicity as arbitrary, capricious, or otherwise contrary to law.
Although the APA claims are directed solely at TMDLs for ionic toxicity, the CWA claims address
all biologically impaired bodies of water in West Virginia, of which all waterbodies impaired by
ionic toxicity are a part. The APA claims are subsumed by the CWA claims and are duplicative.
“Congress did not intend the general grant of review in the APA to duplicate existing procedures
for review of agency action.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988). Indeed, the APA
limits review of agency action to agency actions “for which there is no other adequate remedy in
a court.” 5 U.S.C. § 704. “Because review of [the Environmental Groups’] claim is available under
the Clean Water Act, it is not subject to review under the APA.” Hayes, 264 F.3d, 1025 (emphasis
in original); see also Allegheny Cty. Sanitary Auth. v. EPA, 732 F.2d 1167, 1177 (3d Cir. 1984)
(finding plaintiff could not sustain an APA claim when it had a valid claim pursuant to the CWA);
Am. Canoe Ass’n, Inc. v. EPA, 30 F.Supp.2d 908, 915 n. 6 (E.D. Va. 1998) (same). Accordingly,
the Court grants summary judgment in favor of EPA on the Environmental Groups’ APA claims.
E. Remedy
The Environmental Groups’ CWA claim was brought pursuant to 33 U.S.C. § 1365 which
authorizes a citizen to bring suit against the administrator of the EPA “where there is alleged a
failure of the Administrator to perform any act or duty under this chapter which is not
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discretionary.” EPA has a nondiscretionary duty to approve or disapprove within thirty days a
TMDL submission by West Virginia. WVDEP’s decision not to submit biological impairment
TMDLs to EPA for approval triggered EPA’s duty to either approve or disapprove of the
submission that no TMDLs are necessary for biological impairment within thirty days.
Accordingly, EPA must, within thirty days of this order, approve or disapprove of WVDEP’s
submission of no TMDLs for all bodies of water identified as biologically impaired but lack a
TMDL to address that impairment.
The Environmental Groups urge the Court to require EPA to produce the missing TMDLs
within thirty days as if EPA had disapproved WVDEP’s constructive submission because they
believe that EPA cannot approve a submission of no TMDLs for bodies of water listed on a 303(d)
List. There is a certain simplicity and harmony to the Environmental Group’s argument. For every
body of water listed on West Virginia’s 303(d) List it must also produce a TMDL. It stands to
reason then that EPA could never approve a submission that no TMDL is needed for a body of
water on a 303(d) List.
Nevertheless, the Court does not believe that it can order EPA to produce the TMDLs
without EPA first disapproving West Virginia’s constructive submission. Section 1365(a)(2)
permits suit to compel EPA to perform a nondiscretionary duty. EPA inherits a nondiscretionary
duty to act (approve or disapprove) once a submission, or constructive submission, has been made.
Scott, 741 F.2d at 998; Fox, 909 F. Supp. at 158. The CWA commits to EPA’s discretion its choice
between approval and disapproval. § 1313(d)(2); see Hayes, 264 F.3d at 1023; Scott 741 F.2d at
995. Where it disapproves a submission, it then inherits a nondiscretionary duty to produce the
TMDLs that were disapproved. § 1313(d)(2). If EPA were to approve a constructive submission,
essentially deciding in this case that no biological impairment TMDLs are necessary, that decision
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would then likely be subject to judicial review under the APA. At present, however, the Court can
only order the EPA to perform the nondiscretionary duty which it has failed to assume—approve
or disapprove WVDEP’s constructive submission.
V. Conclusion
For the reasons stated in this Memorandum Opinion and Order, the Court GRANTS in
part and DENIES in part the Environmental Groups’ Motion for Summary Judgment, ECF No.
30, and GRANTS in part and DENIES in part EPA’s Cross Motion for Summary Judgment. ECF
No. 38. EPA shall approve or disapprove WVDEP’s constructive submission of no TMDLs for all
biologically impaired bodies of water for which no TMDL has been developed to address that
impairment within thirty days of this order. EPA shall inform the Court upon reaching its decision.
The Court will retain jurisdiction of the case until EPA submits its decision.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER: February 14, 2017
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Attachment 2
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
OHIO VALLEY ENVIRONMENTAL COALITION, INC., SIERRA CLUB, WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and VIRGINIA RIVERS COALITION,
Plaintiffs,
v. CIVIL ACTION NO. 3:15-0271
GINA MCCARTHY, Administrator, United States Environmental Protection Agency and SHAWN M. GARVIN, Regional Administrator, United States Environmental Protection Agency, Region III,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending in this administrative review action are cross-motions for summary judgment
brought by Plaintiffs Ohio Valley Environmental Coalition, Inc. (“OVEC”), Sierra Club, West
Virginia Highlands Conservancy, and Virginia Rivers Coalition (collectively the “Environmental
Groups”), ECF No. 30, and by Defendants Gina McCarthy, Administrator of the U.S.
Environmental Protection Agency, and Shawn Garvin, a regional administrator for the same
agency (collectively “EPA”), ECF No. 38. In this citizen suit pursuant to the Federal Water
Pollution Control Act (Clean Water Act or “CWA”), 33 U.S.C §§ 1251, et seq., and under the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq. the Environmental Groups
challenge EPA’s failure to disapprove actual or constructive submissions by the West Virginia
Department of Environmental Protection (“WVDEP”) that lacked total maximum daily loads Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 81 Filed 09/09/16 Pg: 71 of Page235 2 of 22 PageID #: 6891
(“TMDLs”) for certain West Virginia waterbodies previously identified by the agencies as
“biologically impaired.” The Environmental Groups seek an order declaring EPA’s alleged failure
in violation of the CWA’s process for reviewing state TMDL submissions, 33 U.S.C § 1313, and
in violation of the APA’s prohibition on agency action that is arbitrary, capricious, abusive of
discretion, and otherwise not in accordance with law, 5 U.S.C. § 706(2). 2d Am. Compl. at 35–37,
ECF No. 78. The Environmental Groups also request an order requiring EPA to develop TMDLs
for all biologically impaired waterbodies. Id.
The cross motions for summary judgment require the Court to determine whether EPA
complied with the CWA and federal regulations for review of state TMDL submissions. The cross-
motions, taken together, raise the following issues: (1) Plaintiffs’ organizational standing to bring
claims pertaining to certain waterbodies, (2) EPA’s liability on Claims 1 and 2, which allege EPA
violated a nondiscretionary duty under the CWA to, first, disapprove WVDEP’s actual or
constructive submissions of no biological impairment TMDLs for biologically impaired
waterbodies, some of which are impaired specifically by ionic toxicity, and second, to establish
those undeveloped TMDLs, and (3) EPA’s liability on Claims 3 through 8, which allege EPA
violated the APA by arbitrarily or capriciously approving WVDEP’s TMDL Lists for certain
waterbodies, which included no ionic toxicity TMDLs despite those waterbodies’ state of ionic
impairment. Briefing on the cross-motions is adequate for the Court to decide the standing issue,
but the Court finds oral argument is necessary to decide the merits of the CWA and APA claims.
From the analysis below, the Court FINDS the Environmental Groups have standing to bring all
claims in the Second Amended Complaint, ECF No. 78. Based on this finding, the Court
PARTIALLY GRANTS Plaintiff’s Motion for Summary Judgment and PARTIALLY DENIES
EPA’s Cross-Motion for Summary Judgment. The issues of CWA and APA liability and proper
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relief, remain pending. In a forthcoming Order the Court will schedule oral argument on the
remaining issues in the cross-motions for summary judgments.
I. Background
A. Clean Water Act and Implementing Regulations
The CWA is intended “to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters” and to attain “water quality which provides for the protection and
propagation of fish, shellfish, and wildlife.” 33 U.S.C. § 1251(a). To accomplish this purpose, the
CWA requires states and the federal government to work together in eliminating water pollution.
See Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992) (“The Clean Water Act anticipates a
partnership between the States and the Federal Government . . . .”). “The CWA thus divides
between the federal government (via the EPA) and the states many of the duties for monitoring
and regulating the nation's waters.” Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 907–08 (11th Cir.
2007).
In part, the CWA requires each state to establish water quality standards (“WQS”)
consistent with the CWA’s requirements for all waterbodies and waterbody segments within their
boundaries. 33 U.S.C. § 1313(a)(3)(A), (b), (c); see also 40 C.F.R. §§ 130.2(d), 131.4(a). A WQS
identifies (1) the “designated uses” for a particular waterbody (e.g., public water supply, support
of aquatic life, and/or recreational uses) and (2) a “water quality criteria” expressed as a level (e.g.,
a pollutant-specific concentration and/or a narrative condition) that must not be exceeded so that
the waterbody can support those uses (e.g., iron concentrations necessary for aquatic life). 33
U.S.C. § 1313(c)(2); 40 C.F.R. § 131.3(i). Several water quality standards may apply to the same
waterbody segment. EPA either approves a State’s proposed water quality standards or, if it
disapproves any of them, promulgates standards for the State. Id. § 1313(c)(3). WQS include water
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quality criteria, in narrative form, numeric, or both, which define the amounts of pollutants that
may be discharged into specific water bodies. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.10–12.
The water quality criteria are set so that specified water bodies may maintain their designated
beneficial uses, 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 130.2(d), 131.2, 131.10–12. When
existing pollution controls in a waterbody are not stringent enough to meet applicable water quality
standards, i.e., waterbodies that are not safe enough to support their designated uses, that
waterbody must be classified by the state as “impaired.” 33 U.S.C § 1313(d)(1); 40 C.F.R. § 130.7.
Next, CWA Section 303(d) requires that states establish a list of impaired waterbodies
within their boundaries. 33 U.S.C § 1313(d)(1); 40 C.F.R. § 130.7. Each waterbody on the
impaired waters list is known as a “water quality limited segment” (“WQLS”), 40 C.F.R. §
130.2(j), or an impaired waterbody for short. Placing a waterbody on this “303(d) list” is significant
because the CWA requires that states target impaired waterbodies on the 303(d) list for pollution
control. Leavitt, 488 F.3d at 907–08. The CWA also requires states to “establish a priority ranking
of impaired waterbodies, taking into account the severity of the pollution and the uses to be made
of such waters.” 33 U.S.C. § 1313(d)(1)(A); see also 40 C.F.R. § 130.7(b)(4). States must submit
these 303(d) lists for EPA’s review every two years, and within 30 days of the submission, EPA
must approve, disapprove, or partially disapprove the state's 303(d) list. 33 U.S.C. § 1313(d)(2);
40 C.F.R. § 130.7(d)(2). If EPA disapproves a state's 303(d) list, EPA must establish a list of
waterbodies that should have been included in the state’s 303(d) list, and it must populate this
corrected list within 30 days of the disapproval. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(2).
In populating its list, EPA must solicit and consider public comment on what waters should have
been labeled impaired. 40 C.F.R. § 130.7(d)(2).
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For waterbodies designated impaired in a state’s 303(d) list, the state must establish a total
maximum daily load (“TMDL”) of any pollutant “preventing or expected to prevent attainment of
water quality standards.” 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1)(ii). A TMDL sets
the maximum amount of a pollutant that may be discharged into an impaired waterbody, from all
sources combined, without exceeding water quality standards. 33 U.S.C. § 1313(d)(1)(C); 40
C.F.R. § 130.2(e); see also 40 C.F.R. § 130.2(i) (stating a TMDL is “[t]he sum of the individual
[waste load allocations or “WLAs”] for point sources and [load allocations or “LAs”] for nonpoint
sources and natural background”); Ctr. For Biological Diversity v. EPA, No. 13-1866, 2014 WL
636829, at *2 (W.D. Wash. Feb. 18, 2014) (citing Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d
1517, 1520 (9th Cir. 1995)). TMDLs must be set “at a level necessary to implement the applicable
water quality standards with seasonal variations and a margin of safety which takes into account
any lack of knowledge concerning the relationship between effluent limitations and water quality.”
33 U.S.C. § 1313(d)(1)(C); see also 40 C.F.R. § 130.7, 130.7(c)(1), 130.2(g)-(i). After the state
calculates a TMDL, the TMDL is subject to public review. 40 C.F.R. § 130.7(c)(1)(ii). Following
public review, the state must submit its TMDLs to EPA for review, and EPA must either approve
or disapprove the submission within thirty days of the submission. 33 U.S.C. § 1313(d)(2). If the
state fails to establish a TMDL deemed necessary by EPA, EPA must disapprove the TMDL list
within thirty days of the submission. See 33 U.S.C. § 1313(d)(2). Within thirty days of the
disapproval, EPA must calculate the undeveloped TMDL, see id., seek public comment on EPA’s
proposed TMDL, consider the comments received, and submit EPA’s final TMDL to the state for
incorporation into the state’s water quality management plan, 40 C.F.R. § 130.7(d)(2); see also 33
U.S.C. § 1313(d)(2).
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The CWA, by its text, does not require States to submit TMDLs to EPA at any particular
interval; instead, it requires States to submit TMDLs to EPA “from time to time.” 33 U.S.C §
1313(d)(2). EPA regulations dictate that schedules for submitting TMDLs are determined by the
relevant EPA regional administrator and the State. 40 C.F.R. 130.7(d)(1). In 1997 Guidance, EPA
recommended that States should plan to establish TMDLs for all impaired waterbodies on their
Section 303(d) lists within eight to thirteen years of the initial listing, but recognized that shorter
or “slightly longer” times may be needed depending on specific factors and circumstances. A.R.
EPA TMDL Guid. Doc. 6 at 3 (JA 977). EPA interprets the CWA to allow states discretion to
proceed watershed by watershed or pollutant-by-pollutant, when developing TMDLs. Id. at 2 (JA
976). Thus, for example, a state may develop all TMDLs for the various pollutants causing
impairment of waterbodies in a single watershed, or they may elect to establish TMDLs for the
same pollutant for all waterbodies impaired by that pollutant. West Virginia, for instance, has a
five-year schedule for developing TMDLs on a watershed by watershed approach. A.R. W. Va.
303(d) Doc. 20 at 32 (JA 2349); see also EPA Memo. Supp. Cross-Mot. Summ. J. 9, ECF No. 73.
“WVDEP’s TMDL development program has historically attempted to comprehensively address
all streams and all impairments in a particular watershed simultaneously.” EPA Memo. Supp.
Cross-Mot. Summ. J., at 9 (quoting Dunkard Doc. 39 at 77 (JA 821); Upper Ohio Doc. 39 at 72
(JA 1152)).
Once established, TMDLs are used by state and federal agencies to decrease the amount of
the pollutant to which that TMDL applies so that the TMDL is not exceeded. Leavitt, 488 F.3d at
907–08. For instance, based on the TMDL for a given waterbody, the state determines WLAs for
that waterbody, which establish the maximum amount of a designated pollutant that a specific
entity may discharge through a point source into that waterbody. 40 C.F.R. § 130.2(h) (WLA is
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“[t]he portion of a receiving water’s loading capacity that is allocated to one of its existing or future
point sources of pollution. WLAs constitute a type of water quality-based effluent limitation.”).
Thus, a WLA is a type of effluent limitation placed on specific discharging entities, and it is
imposed by WVDEP through a National Pollution Discharge Elimination System (“NPDES”)
permit. W. Va. Code § 22-11-4(a)(1); W. Va. Code R. §§ 47-10-3.1, 3.4. TMDLs are used by states
in designing and implementing pollution control measures, such as crafting water quality
management plans and reviewing permit applications for discharging pollutants per the NPDES.
See 33 U.S.C. § 1313(e) (describing continuing planning process in which states must engage); 40
C.F.R. § 130.6 (water quality management plans), 130.7 (explaining process for “incorporating
the approved [TMDLs] into the State's water quality management plans and NPDES permits”);
see also Ctr. For Biological Diversity, 2014 WL 636829, at *2 (citing Pronsolino v. Nastri, 291
F.3d 1123, 1129 (9th Cir. 2002)).
B. West Virginia’s Section 303(d) Program
West Virginia’s water quality standards include two narrative water quality criteria, which
are designed to protect a use of West Virginia’s streams related to aquatic life. Those criteria
provide:
3.2. No sewage, industrial wastes or other wastes present in any of the waters of the state shall cause therein or materially contribute to any of the following conditions thereof: . . . 3.2.e. Materials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life; . . . 3.2.i. Any other condition, including radiological exposure, which adversely alters the integrity of the waters of the State including wetlands; no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.
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W. Va. Code R. § 47-2-3.2.e–3.2.i. From 2002 through 2010, West Virginia used the West Virginia
Stream Condition Index (“WVSCI”) as its methodology for assessing compliance with the
narrative criteria that protect aquatic life. Id. That methodology “consists of six benthic community
metrics combined into a single multimetric index” and results in a “final index score ranging from
0.0 to 100.0.” A.R. W. Va. 303(d) Lists Doc. 23 at 2 (JA 2604). A stream does not achieve the
narrative criteria for aquatic life uses if its WVSCI is below 68. Id. at 5 (JA 2607).
Methodologies like WVSCI detect impairment, but “they do not identify the cause or
causes of the impairment.” A.R. EPA TMDL Guidance Doc. 12 at ES-1 (Sup JA 4592).
Accordingly, in order to identify causes of impairment—a necessary preliminary step for
developing a TMDL—EPA has developed a “stressor identification process.” Id. at ES-2 (Sup JA
4593). In the development of TMDLs, West Virginia routinely performs the stressor identification
process. See, e.g., A.R. Dunkard Creek Watershed TMDL Doc. 39 at 12 (JA 756).
West Virginia includes ionic toxicity as a stressor causing biological impairment, and in
several waterbodies, the State has found ionic toxicity a significant stressor giving rise to biological
impairment. See, e.g., id. at 13–15 (JA 757–59). Since 2005, West Virginia has determined that
ionic toxicity is the stressor causing biological impairment in at least 179 streams. AR W. Va.
303(d) Lists Doc. 15 at 41, List Page 14, List Page 18, & List Page 25 (JA 1864, 1886, 1890, &
1897) (identifying ionic toxicity as the cause of biological impairment for four streams in the
Upper Kanawha Watershed, seven streams in the Coal River Watershed, and six streams in the
Gauley River Watershed); AR Upper Ohio South TMDL Doc. 39 at 17 (JA 1097) (identifying
ionic toxicity as the cause of biological impairment for nine streams in the Upper Ohio South
Watershed); AR Dunkard Creek TMDL Doc. 39 at 15 (JA 759) (identifying ionic toxicity as the
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cause of biological impairment for four streams in the Dunkard Creek Watershed); AR Lower
Kanawha TMDL Doc. 25 at 22 (JA 559).
In 2012, West Virginia stopped using the WVSCI methodology in generating its 303(d)
List because, according to WVDEP, the State Legislature required it when the State Legislature
passed Senate Bill 562 (“SB 562”). AR W. Va. 303(d) Lists Doc. 20 at 15 (JA 2332). WVDEP
interprets SB 562 as precluding use of WVSCI’s methodology for finding biological impairment.
Id. After West Virginia submitted its 2012 303(d) list to EPA, EPA partially disapproved that list
because the State failed to “evaluate all existing and readily available water quality-related data
and information, specifically, information related to whether certain waters are achieving West
Virginia’s narrative water quality criteria as applied to the aquatic life uses.” AR W. Va. 303(d)
Lists Doc. 23 at 1 (JA 2603). In its letter disapproving the 2012 303(d) List, EPA stated,
“Recognizing WVDEP’s position that it is unable to carry out the requirement set forth in 40 CFR
130.7(b)(5), EPA has an obligation to take action to ensure that the federal requirement is
satisfied.” AR W. Va. 303(d) Lists Doc. 21 at 1 (JA 2584). EPA attempted to fulfill its statutory
and regulatory obligations by developing a 303(d) List of waters in West Virginia that are not
achieving the narrative standards that protect the aquatic life use, i.e., by adding biologically
impaired waterbodies to West Virginia’s 2012 303(d) List. Id.
As for TMDLs, West Virginia has not, to date, developed any TMDLs addressing ionic
toxicity in any of the waterbodies included on the State’s 303(d) Lists due to biological impairment
caused by ionic toxicity. In April 2010, EPA and West Virginia agreed that TMDLs for all ionic
toxicity impairments would be developed by the end of 2013. A.R. WVDEP/EPA Meeting Draft
Agenda Doc. 14-01 at 2 (JA 3072). In the Fall of 2010, EPA and WVDEP began a project for
developing pilot TMDLs for ionic toxicity in four streams in the Upper Kanawha Watershed. A.R.
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W. Va. Ionic Stress Background Info. Doc. 136 at 4–5 (Sup JA 5230–31). The project called for
completing pilot ionic toxicity TMDLs for those streams by August 2012. Id. By February 2012,
participants in that project were considering a TMDL endpoint for conductivity of 720 micro
Siemens per centimeter (ȝS/cm) on a 4-day rolling average. A.R. W . Va. Ionic Stress TMDL Dev.
Doc. 117-01 at 17 (Sup JA 5224). But on April 6, 2012, WVDEP Secretary Randy Huffman sent
a letter to EPA Region III terminating West Virginia’s participation in that project, citing passage
of SB 562 as the reason for WVDEP’s decision. A.R. Doc. 162 (JA 3298–99).
In 2012, WVDEP submitted a draft 303(d) list to EPA that did not set dates for completing
ionic toxicity TMDLs for the waterbodies within the six watersheds at issue in this case. Rather,
WVDEP cited dates for completing these TMDLs as “TBD - To be determined. TMDLs will be
developed as soon as practicable after the effective date of rules enacted pursuant to Senate Bill
562.” W. Va. 303(d) List Doc. 20 at pages 4, 8, 9, 10, 11, 44, 50 (JA 2321, 2325–28, 2361, 2367).
After reviewing the draft 2012 303(d) list, EPA and the Environmental Groups submitted
comments recommending that WVDEP establish dates by which it planned to complete ionic
toxicity TMDLs. Supp. A.R.W. Va. 303(d) Lists Doc. 51-01 at 4 (JA 2753) & Doc. 52 at 31 (JA
2785). In response, WVDEP included in its final 303(d) list submitted to EPA in 2014 projected
dates for developing ionic toxicity TMDLs, which range from 2020 to 2025, depending upon the
watershed. Supp. A.R.W. Va. 303(d) Lists Doc. 53 at 15, 16, 39, 40, 41, 43, 49-54 (JA 2805–06,
2829-31, 2833, 2839–44).
II. Legal Standard
To obtain summary judgment, the moving party must show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the
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evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in
the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587–88 (1986).
The nonmoving party nonetheless must offer some “concrete evidence from which a
reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256. Summary
judgment is appropriate when the nonmoving party has the burden of proof of an essential element
of his or her case and does not make, after adequate time for discovery, a showing sufficient to
establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The nonmoving
party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in
support of his or her position. Anderson, 477 U.S. at 252.
III. Discussion
In their Motion for Summary Judgment, the Environmental Groups contend they have
standing to bring all claims in the Second Amended Complaint. EPA’s Cross Motion for Summary
Judgment contends the Environmental Groups lack constitutional standing to pursue certain
claims. As explained below, EPA’s arguments are without merit.
The Supreme Court has interpreted the U.S. Constitution’s Article III case or controversy
requirement as demanding, at an irreducible minimum, that plaintiffs establish their standing to
bring each claim by showing they suffered a concrete and particularized injury in fact which is
actual or imminent, fairly traceable to the defendant’s challenged conduct, and likely to be
redressed by the requested relief. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); see also
Massachusetts v. EPA, 549 U.S. 497, 517 (2007). Organizations may have constitutional standing
premised entirely on injuries suffered by their members, provided that other elements of
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associational standing are met. Friends of the Earth v. Laidlaw, 528 U.S. 167, 181 (2000) (“An
association has standing to bring suit on behalf of its members when its members would otherwise
have standing to sue in their own right, the interests at stake are germane to the organization's
purpose, and neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.”).
In this case, Environmental Group members submitted declarations indicating their use and
enjoyment of forty-one waterbodies located throughout West Virginia has been diminished due to
biological impairment in those waterbodies. That biological impairment has persisted, in part, due
to EPA’s actions or inactions on West Virginia’s TMDL List submissions, which have lacked
TMDLs for biologically impaired waterbodies since 2012. The declarations indicate these injuries
would be redressed if EPA were ordered to develop TMDLs for biologically impaired waterbodies.
EPA argues the Environmental Groups lack standing in two respects, both related to injury-
in-fact. Finding causation and redressability established, and the requirements for associational
standing satisfied, see Retail Indus. Leaders Ass' v. Fielder, 475 F.3d 180, 186 (4th Cir. 2007), the
Court considers in turn each of EPA’s arguments pertaining to injury-in-fact.
First, concerning the APA Claims, EPA points out Plaintiffs have provided declarations
showing their members have suffered injury-in-fact related to waterbodies in only five of six
watersheds at issue in these claims.1 EPA Cross-Mot. Summ. J., at 17–18, ECF No. 73. None of
the declarations initially submitted with the Environmental Groups’ Motion for Summary
Judgment indicated any member suffered an injury related to any waterbody in the Monongahela
Watershed at issue in Claim Seven. In response to EPA’s Cross-Motion for Summary Judgment,
1 EPA does not contest Plaintiffs’ organizational standing to bring claims pertaining to those five waterbodies for which Plaintiffs have submitted declarations. -12-
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the Environmental Groups explain the omitted declaration was inadvertent, and that at least one
member has suffered an injury related to at least one waterbody in the Monongahela Watershed.
ECF No. 71, at 1–2. EPA’s Reply does not address this explanation. See ECF No. 74. The summary
judgment record has been supplemented with a declaration by David Saville, one member of the
Environmental Groups who has asserted injury for environmental harm to waterbodies in the
Monongahela River. ECF No. 52. Accordingly, EPA’s first standing concern has been addressed.
Second, related to the CWA claims, EPA and amicus WVCA contend the Environmental
Groups have standing to seek TMDLs only for waterbodies used and enjoyed by the
Environmental Groups’ members. EPA Cross-Mot. Summ. J., at 17–18, ECF No. 73. EPA
contends the members have not established an injury for waterbodies they do not use, therefore
the Environmental Groups cannot seek TMDLs for waterbodies in West Virginia that their
members do not use. The Environmental groups contend that when an organization’s members use
a large number of waters throughout a state, the members have a personal stake in water quality
throughout the state sufficient to bring an action seeking TMDL development for all waters in the
state, even though such members do not use every waterbody where a TMDL is sought. The
Environmental Groups support their position with out-of-circuit decisions in TMDL litigation,
which are reviewed and discussed below. Based on the following analysis, EPA’s argument is
unpersuasive. The Environmental Groups have shown their injury and personal stake in this
controversy establishes their standing to bring claims seeking TMDLs for all biologically impaired
waterbodies in West Virginia, even those not addressed in members’ declarations.
To demonstrate an injury in fact for purposes of Article III standing, a plaintiff must show
a personal stake in the claim. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 732 (1972). Having
a personal stake means the plaintiff personally suffered some actual or threatened injury as a result
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of the putatively illegal conduct of the defendant. Lujan, 504 U.S. at 560 n.1. In the environmental
context, injury is established where plaintiffs show they use the affected area and are persons “for
whom the aesthetic and recreational values of the area will be lessened” by the challenged activity
or inactivity. Laidlaw, 528 U.S. at 183 (standing inquiry focuses on injury to plaintiff, not
environment). Using an area roughly in the vicinity of the affected area will not suffice, see Lujan,
504 U.S. at 565–566, because their use of the affected area proves they are “among the injured.”
See Sierra Club v. Morton, 405 U.S. 727, 734–35 (1972) (“[T]he ‘injury in fact’ test requires more
than an injury to a cognizable interest. It requires that the party seeking review be himself [or
herself] among the injured.”); see also Lujan, 504 U.S. at 565–66 (interpreting Sierra Club, 405
U.S. at 735). The Supreme Court has rejected an ecosystem nexus theory, which would find a
plaintiff who uses some part of a damaged ecosystem has sufficient injury to bring suit for damage
to a part of the ecosystem not used by the plaintiff. See Lujan, 504 U.S. at 565–66. Where a
plaintiff’s use of an ecosystem is “not perceptibly affected by the unlawful action in question”
standing does not lie. Id. at 566. Importantly, however, “the Supreme Court has [n]ever required
an environmental plaintiff to show it has traversed each bit of land that will be affected by a
challenged agency action.” S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1155 (10th Cir.
2013).
The U.S. Court of Appeals for the Ninth Circuit has already considered standing in TMDL
litigation and rejected the same argument asserted by EPA in this case, i.e., the Environmental
Groups’ members only have standing to bring a TMDL claim related to the waterbodies they use.
See Alaska Center for Environment v. Browner, 20 F.3d 981 (9th Cir. 1994). In Alaska Center,
environmental organizations brought a CWA citizen suit to compel EPA to establish TMDLs for
all impaired waterbodies in Alaska. Id. at 982. Plaintiffs, four environmental organizations and
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their members, showed they had used certain Alaskan waters and were adversely affected by
EPA’s failure to establish TMDLs required by the CWA. Id. at 985. Prior to the case, Alaska had
never submitted any TMDLs to EPA, and EPA had not established any TMDLs for Alaskan
waters. Id. at 983. The relief sought involved a single EPA office and performance of a single
duty—to establish TMDLS—mandated by statute. Id. at 986. On appeal to the Ninth Circuit, EPA
argued the plaintiffs lacked standing. EPA maintained injury was established with respect to only
those streams the plaintiffs used, and that the plaintiffs failed to prove injury related to the other
3,000,000 million waterbodies in Alaska. Id. at 985. Under EPA’s theory, the sort of injury
necessary in a case for compelling TMDL development across an entire state would require that
plaintiffs show diminished use in every waterbody that would be affected by the state-wide TMDL
program. Id.
The Ninth Circuit disagreed with requiring the heavy burden for injury that EPA advanced.
Id. EPA’s theory of requisite injury, according to the Ninth Circuit, would unduly interfere with
the CWA’s statutory scheme imposed by Congress. Id. at 986. More precisely, the CWA requires
that TMDLS be developed in a prioritized order determined by the State or EPA. Id. at 985, 986.
Permitting individual plaintiffs to impose their own prioritization by limiting the scope of
requested TMDL development to specific waterbodies of paramount concern to them, e.g., limiting
TMDL development to waterbodies they used, would disrupt the CWA mandated prioritized order.
Id. at 985. For these reasons, the Ninth Circuit found the environmental organizations and their
members established injury by showing they were adversely affected by inadequate water quality
in a representative number of waters throughout Alaska, i.e., in waters throughout the entire area
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for which they sought relief. The Ninth Circuit also found that the plaintiffs’ injury resulted from
EPA’s failure to comply with its CWA obligation to establish TMDLs for Alaska. Id.2
EPA attempts, but fails, to distinguish Alaska Center from the instant case. The plaintiffs
in Alaska Center established injury related to some but not all waterbodies in a state, and EPA
argues the plaintiffs had standing, if at all, because they sought an order requiring establishment
of all TMDLs across the entire state. In the instant case, Environmental Groups seek an order
requiring TMDL development for all biologically impaired waterbodies in West Virginia, which
EPA characterizes as a specific set of waterbodies. Based on this perceived distinction in the cases,
EPA argues: Alaska Center is inapplicable here; and to show injury in fact, the Environmental
Groups must demonstrate their members used each biologically impaired waterbody in West
Virginia where they seek TMDLs; but in this task, the Environmental Groups failed, having
submitted declarations showing members used only some but not all of the waterbodies for which
they seek TMDLs. Thus, EPA contends, the Environmental Groups lack the injury in fact
necessary to seek TMDLs for all biologically impaired waterbodies.
2 A federal district court in Minnesota has also rejected EPA’s theory of requisite injury for seeking state-wide TMDL development. See Sierra Club, North Star Chapter v. Browner, 843 F. Supp. 1304, 1306 (D. Minn. 1993). In Sierra Club, North Star Chapter, environmental organizations brought a CWA citizen suit to compel EPA to establish TMDLs for all water quality limited segments in Minnesota. Id. at 1306. To prove their standing, seven members of the environmental organizations submitted declarations that they regularly used waters throughout Minnesota for recreation, but their enjoyment was limited by pollution which should have been regulated under the CWA. Id. at 1309. EPA challenged the environmental organizations’ standing. Id. Although not disputing injuries for waters in the seven declarations, EPA argued the environmental organizations had not established injuries for waters not identified in the declarations. Id. In response, the environmental organizations pointed out that the 303(d) process is statewide and should not be limited to waters identified and used by plaintiffs’ members, and if plaintiffs could sue to enforce EPA’s duties to develop TMDLs only for identified waters, Section 303(d) could never be enforced. Id. The district court disagreed with EPA. Id. at 1310. The members established injury in fact, according to the district court, by showing they were Minnesota residents who swore to using a large number of waters throughout Minnesota, which gave them a personal stake in the quality of waters throughout the State. Id. -16-
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For purposes of assessing injury in fact, however, Alaska Center and this case are
indistinguishable. The injuries in both cases are identical in all material respects: the organizational
plaintiffs’ members used some but not all waterbodies where the CWA allegedly required TMDLs.
And the relief requested is the same: TMDL development where the CWA requires TMDL
development. The distinction EPA finds between the two cases is immaterial. Although the set of
TMDLs sought in Alaska Center is more extensive than the set sought in this case—i.e., there may
be some waterbodies in West Virginia that (1) require a TMDL for a reason other than biological
impairment and (2) lack a TMDL—that distinction is immaterial for purposes of assessing injury.
The plaintiffs in Alaska Center had an injury conferring standing necessary to seek TMDL
development for every waterbody in the state, despite the plaintiffs’ members having used only
some of Alaska’s waterbodies; the same is true in this case. Moreover, the Environmental Groups
seek a comprehensive set of TMDLs required by the CWA due to the biological impairment of the
waterbodies at issue.
In this case, and many cases where plaintiffs bring constructive submission claims, a state
has submitted some but not all TMDLs, which in turn means the plaintiffs can seek development
of only some but not all TMDLs. In such cases, plaintiffs seek development of TMDLs that should
have been developed, but were not. Here, the Environmental Groups are seeking to compel
development of TMDLs that should have been developed but were not. Moreover, the
Environmental Groups’ demonstrated their standing to bring this suit by use of a representative set
of waterbodies affected by the alleged impairment due to the lack of TMDLs. Indeed, the plaintiffs
in Alaska Center used only some of the waterbodies for which they sought TMDL development
but demonstrated an injury that conferred standing to seek the missing TMDLs in Alaska. The
difference between seeking TMDLs for all waterbodies in a state where no TMDLs have been
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established, and seeking TMDLs only for certain waters where no TMDLs have been issued is
meaningless in assessing injury. As in Alaska Center the Environmental Groups here have
established an injury in fact by demonstrating use of a representative set of biologically impaired
waterbodies that lack TMDLs, which therefore confers standing on the Environmental Groups to
seek TMDLs for all biologically impaired waterbodies lacking a TMDL. Alaska Center and this
case are the same for purposes of constitutional standing analysis.
In addition, by arguing the Environmental Groups must show injury in each waterbody
where they seek TMDL development, EPA and WVCA misunderstand the injury analysis
generally required in TMDL litigation. In TMDL litigation like this, plaintiffs allege they have
environmental, aesthetic or recreational interests in certain waters that have been harmed by failure
to establish TMDLs for some or all waters in a state. The putative harm is inflicted by absent
TMDLs, without which pollution damages waters, which thereby injures the plaintiff. It makes
little sense to ask if TMDL plaintiffs have suffered harm in each waterbody where TMDLs are
sought, when the harm they suffered results from a state-wide TMDL setting process. This sort of
blended injury and causation analysis assures Article III’s injury and causation requirements are
met, while also not setting the standing hurdle unnecessarily high. See Friends of the Earth, Inc.
v. Gaston Copper Recycling Corp., 204 F.3d 149, 155 (4th Cir. 2000) (en banc) (“If the plaintiff
can show that his [or her] claim to relief is free from excessive abstraction, undue attenuation, and
unbridled speculation, the Constitution places no further barriers between the plaintiff and an
adjudication of his rights.”).
Adopting EPA’s theory of injury—that members must have used every impaired
waterbody in a state to be injured by lack of TMDLs for all impaired waterbodies—would both
deviate from Supreme Court precedent on environmental injury and elevate the injury hurdle
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unnecessarily high. Requiring the Environmental Group members to have used all waterbodies at
issue in order to claim harm by failure to adopt TMDLs statewide would be similar to requiring
the plaintiffs in Lujan v. Defenders of Wildlife, 504 U.S. 555, to have either observed or to expect
with certainty to observe each distinct animal species whose existence was threatened by the
challenged government activity. The Supreme Court did not require such a showing in Lujan, see
generally Lujan, 504 U.S. 555, and it would twist Lujan’s analysis of injury, to insist that members
seeking statewide TMDL development use every waterbody where TMDLs are sought.
Case law from the Tenth Circuit Court of Appeals similarly supports finding standing. In
Southern Utah Wilderness Alliance v. Palma, the Tenth Circuit reversed a decision by the district
court that found no standing where plaintiffs did not identify specific visits to each of thirty-nine
oil and gas leases at issue in the case. 707 F.3d at 1152–53. The Tenth Circuit determined that
“[t]he district court misapplied the law when it rejected [the plaintiffs’] standing on the basis that
the affidavits failed to show its members have visited each of the leases at issue.” Id. at 1155. The
plaintiffs did not need to visit each of the thirty-nine leases to generate standing. Id. Rather, the
plaintiffs’ claims that they traveled extensively throughout the area in which the leases were
located were sufficient to create standing to challenge all thirty-nine leases. Id. at 1156.
The Environmental Groups’ members likewise use some, but not all, impaired waterbodies
throughout the state. In light of the Ninth and Tenth Circuit case law, the Environmental Groups
thus have made a sufficient showing that they have standing to compel EPA to develop TMDLs
for biologically impaired waterbodies statewide.
EPA also insists that Alaska Center’s standing theory conflicts with “prevailing precedent
finding standing inadequate for broad claims seeking programmatic relief.” EPA Reply Supp.
Cross-Mot. Summ. J. 2, ECF No. 74. To support its argument, EPA cites Lujan v. Defenders of
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Wildlife, 504 U.S. at 568, and Sierra Club v. Peterson, 228 F.3d 559, 556–57 (5th Cir. 2000) as
examples. Having reviewed each case, it is clear that they do not support EPA’s contention. First,
the section of Lujan v. Defenders of Wildlife cited by EPA, 504 U.S. at 568 (Part III.B), garnered
only a plurality of the Court, not a majority, and in that section the plurality discussed the
redressability element of Article III standing, not the injury in fact element. The only part of that
section remotely supporting EPA’s statement is where the plurality claimed that suits challenging
agency programs are “rarely, if ever appropriate for federal-court adjudication,” if the agency has
violated no law. Id. (citing Allen v. Wright, 468 U.S. 737, 759–60 (1984)).
The plurality’s statement is quite different from EPA’s theory that standing is always
lacking for claims seeking programmatic relief. Moreover, the plurality’s statement does not apply
to this case. On the contrary, in this case the Environmental Groups do not challenge EPA’s 303(d)
program for reviewing lists of impaired waters and TMDLs. Instead, they allege EPA, in carrying
out its 303(d) program, has violated the CWA. Second, the portion of Sierra Club v. Peterson cited
by EPA discusses the final agency action requirement, not Article III standing. Accordingly,
neither case cited by EPA demonstrates a prevailing precedent “finding standing inadequate for
broad claims seeking programmatic relief.”
In sum, the area affected by EPA’s challenged conduct constitutes biologically impaired
waterbodies throughout West Virginia. The Environmental Groups seek an order requiring EPA
to develop TMDLs for all biologically impaired waterbodies throughout West Virginia. The
Environmental Groups have demonstrated that failure to establish these TMDLs for West
Virginia’s biologically impaired waterbodies has injured their members’ environmental and
aesthetic interests in waterbodies used by the members throughout the state.
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The Environmental Group members use forty-one biologically impaired waterbodies
situated across West Virginia. These forty-one waterbodies are located in the Upper Ohio River
South, Dunkard Creek, Lower Kanawha River, Elk River, Monongahela River and the West Fork
River Watersheds. These six watersheds are located throughout the State of West Virginia. The
impaired waterbodies used by these members constitute some but not all of the waterbodies
allegedly requiring TMDLs. But the members have used impaired waterbodies across West
Virginia, including waterbodies within each of the watersheds at issue. Hence, the Environmental
Groups demonstrate a state-wide injury caused by lack of TMDLs due to EPA’s and WVDEP’s
failure to, either rightly or wrongly, establish them for biologically impaired waters.
The relief sought involves a single EPA office and performance of a single statutorily-
mandated duty—establish TMDLS. Although some TMDLs have been developed in West
Virginia prior to 2012, no TMDLs have been developed for biologically impaired waterbodies
since 2012. By showing their members’ use and enjoyment of waterbodies across West Virginia
has been diminished by inadequate water quality, which has persisted, in part, due to a lack of
TMDLs, the Environmental Groups have demonstrated that failure to establish TMDLs has injured
them, and this injury was caused by EPA’s alleged failure to establish TMDLs. See Am. Littoral
Soc. v. EPA, 199 F. Supp. 2d 217, 232 (D.N.J. 2002) (holding plaintiffs established injury in fact
element of standing because they submitted numerous affidavits attesting to their use of section
303(d) waters and that they were injured by EPA's conduct). Therefore, the members have
demonstrated an injury giving them a personal stake in their CWA claim that TMDLs should have
been developed for all impaired waterbodies in West Virginia, not just those impaired waterbodies
used by the members. By showing the absence of TMDLs for biologically impaired waters has
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harmed them, the Environmental Groups have established standing to seek an order requiring
TMDL development for all biologically impaired streams state-wide.
To conclude, the Environmental Groups have submitted declarations showing their
members have a personal stake in compelling the development of TMDLs for biologically
impaired waterbodies across West Virginia, showing the members suffered the sort of injury in
fact necessary under Article III to seek TMDL development for all biologically impaired
waterbodies in West Virginia. Having decided above that all other aspects of standing are met, the
Environmental Groups have established their organizational standing to bring all claims in the
Second Amended Complaint.3
IV. Conclusion
From the analysis above, the Court FINDS the Environmental Groups have standing to
bring all of their claims in the Second Amended Complaint. Based on this finding, the Court
PARTIALLY GRANTS Plaintiff’s Motion for Summary Judgment and PARTIALLY DENIES
EPA’s Cross-Motion for Summary Judgment. The issues of CWA and APA liability and proper
relief, remain pending. In a forthcoming Order the Court will schedule oral argument on the issues
remaining in the cross-motions for summary judgments.
The Court DIRECTS the Clerk to send a copy of this Opinion and Order to counsel of
record and any unrepresented parties.
ENTER: September 9, 2016
3 This analysis of EPA’s second standing argument also refutes EPA’s argument pertaining to Claims 3 to 8 that Plaintiffs lack standing to seek an order requiring TMDL development for waterbodies in watersheds outside of the six watersheds at issue. -22-
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Earl Ray Tomblin Governor Randy C. Huffman Cabinet Secretary Department of Environmental Protection Scott G. Mandirola Director Division of Water and Waste Management www.dep.wv.gov Promoting a healthy environment 1 DDivisionivision ooff WWaterater aandnd WWasteaJA2755ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg:Table 65-21 129 of of Filed235 Contents 07/07/16 Page 15 of 279 PageID #: 4027 Introduction 4 Bacterial Contamination 20 Acidity 21 West Virginia Water Quality Standards 4 Habitat Quality 21 Ohio River Criteria 6 Habitat Indicators of Aquatic Integrity 22 Embeddedness 22 Surface Water Monitoring and Assessment 6 Riparian Vegetation Zone 22 Streams and Rivers 6 Trash/Aesthetic Index 23 Probabilistic (random) Sampling 7 Ambient Water Quality Monitoring Network 7 Interstate Water Coordination 23 Targeted Monitoring 7 Ohio River Valley Sanitation Commission - ORSANCO 23 Pre-TMDL Development Monitoring 7 Chesapeake Bay 24 Lakes and Reservoirs 7 Interstate Commission on Potomac River Basin 24 Wetlands 8 Ohio River Basin Water Resources Association 24 Citizen Monitoring 9 Total Maximum Daily Load (TMDL) Development Process 24 Data Management 9 Assessed Data 9 Water Pollution Control Programs 25 External Data Providers 10 Division of Water and Waste Management 25 National Pollution Discharge Elimination System Program 26 Use Assessment Procedures 10 Nonpoint Source Control Program 27 Numeric Water Quality Criteria 10 Groundwater Program 27 Segmentation of Streams 11 Division of Mining and Reclamation 28 Evaluation of Continuous Monitoring Data 12 Evaluation of Fecal Coliform Numeric Criteria 12 Cost Benefi ts Analysis 29 Narrative Water Quality Criteria - Biological Impairment Data 13 Funding for Water Quality Improvements 29 Narrative Water Quality Criteria - Fish Tissue and Clean Water Sate Revolving Fund Program 29 Fish Consumption Advisories 14 Low Interest Loan Program 29 Narrative Water Quality Criteria - Algal Blooms 15 Agriculture Water Quality Loan Program 29 Onsite Systems Loan Program 29 Assessment Results 16 Streams 16 Public Participation and Responsiveness Summary 30 Lakes 18 U.S. EPA Approval and Resultant Revisions pending Probabilistic Data Summary 18 Bioligical Community 19 Water Quality Indicators of Aquatic Integrity 20 Sulfate 20 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 2 JA2756 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg:Table 65-21 130 of of Filed235 Contents 07/07/16 Page 16 of 279 PageID #: 4028 List Supplements Overview 33 Supplemental Table A - Previously Listed Waters - No TMDL Developed 33 Supplemental Table B - Previously Listed Waters - TMDL Developed 33 Supplemental Table C - Water Quality Improvements 33 Supplemental Table D - Impaired Waters - No TMDL Needed 34 Supplemental Table E - Total Aluminum TMDLs Developed 34 Supplemental Table F - New Listings for 2014 34 3 DDivisionivision ooff WWaterater aandnd WWasteaJA2757ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 131 of Filed235 07/07/16 Page 17 of 279 PageID #: 4029 Introduction List and the 2014 Section 305(b) report. In general, this report includes The federal Clean Water Act contains several sections requiring data collected and analyzed between July 1, 2008 and June 30, 2013, reporting on the quality of a state’s waters. Section 305(b) requires a from the state’s 32 major watersheds by the West Virginia Department of comprehensive biennial report and Section 303(d) requires, from time to Environmental Protection’s (DEP’s) Watershed Assessment Branch and time, a list of waters for which efÀ uent limitations or other controls are other federal, state, private and nonpro¿ t organizations. not suf¿ cient to meet water quality standards (impaired waters). West Virginia code Chapter 22, Article 11, Section 28 also requires a biennial Water Quality Standards report of the quality of the state’s waters. Water quality standards are the backbone of the 303(d) and 305(b) processes of the federal Clean Water Act. In West Virginia, the water This document is intended to ful¿ ll West Virginia’s requirements for quality standards are codi¿ ed as 47CSR2 – Legislative Rules of the listing impaired waters under Section 303(d) of the Clean Water Act and Department of Environmental Protection – Requirements Governing the Water Quality Planning and Management Regulations, 40CFR130.7. Water Quality Standards. Impairment assessments conducted for the In addition to the list of impaired waters, it explains the data evaluated 2014 cycle are based upon water quality standards that have received the in the preparation of the list and methodology used to identify impaired EPA’s approval and are currently considered effective for Clean Water waterbodies. Information is provided that allows the tracking of Act purposes. In that regard, the EPA has recently approved several previously listed waters that are not contained on the 2014 list. The changes to the West Virginia Water Quality Standards. Information United States Environmental Protection Agency (EPA) has recommended regarding the approved changes can be found on the DEP’s Web page at these requirements be accomplished in a single report that combines the http://www.dep.wv.gov/WWE/Programs/wqs/Pages/default.aspx. comprehensive Section 305(b) report on water quality and the Section 303(d) list of waters that are not meeting water quality standards. The A waterbody is considered impaired if it violates water quality standards format suggested by EPA for this “Integrated Report” includes provisions and does not meet its designated uses. Some examples of designated for states to place their waters in one of the ¿ ve categories described uses are water contact recreation, propagation and maintenance of in Table 1. Waters that are included on the 2014 Section 303(d) List ¿ sh and other aquatic life, and public water supply. Designated uses Table 1 - Integrated Report Categories are placed in are described in detail beginning in Section 6.2 of 47CSR2 and are Category 1 fully supporting all designated uses Category 5 and summarized in Table 2. Each of the designated uses has associated Category 2 are located in information exists to assess the other designated uses criteria that describe speci¿ c conditions that must be met to ensure the back of this Category 3 that the water can support that use. For example, the “propagation being met report (West and maintenance of ¿ sh and other aquatic life” use requires the pH to Category 4 waters that are impaired or threatened but do not need a Total Maximum Virginia 2014 remain within the range of 6.0 to 9.0 standard units at all times. This Daily Load Section 303(d) is an example of a numeric criterion. Numeric criteria are provided in Category 4a waters that already have an approved TMDL but are List). still not meeting standards Appendix E of the water quality standards. Category 4b waters that have other control mechanisms in place which are reasonably expected to return the water to This Integrated Use attainment is determined by the comparison of available instream meeting designated uses Report is a values of various water quality parameters to the appropriate numeric Category 4c waters that have been determined to be impaired, but combination not by a pollutant or narrative criteria speci¿ ed for the designated use (see the Assessment of the 2014 Category 5 waters that have been assessed as impaired and are expected to need a Methodology section for more information on use attainment TMDL Section 303(d) 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 4 JA2758 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 132 of Filed235 07/07/16 Page 18 of 279 PageID #: 4030 Table 2 - West Virginia designated uses Category Use Subcategory Use Category Description A Public Water Human Health waters, which, after conventional treatment, are used for human consumption Warm Water reams or stream segments that contain B1 Aquatic Life Fishery populations composed of all warm water aquatic life reams or stream segments that sustain B2 Trout Waters Aquatic Life year-round trout populations. Excluded are those streams or stream segments which receive annual stockings of trout but which do not support year-round trout populations tlands. Wetlands generally include B4 Wetlands Aquatic Life swamps, marshes, bogs and similar areas Water Contact C Human Health Recreation and outboard motor boats D1 Irrigation All Other all stream segments used for irrigation D2 Livestock Watering All Other all stream segments used for livestock watering D3 Wildlife All Other all stream segments and wetlands used by wildlife E1 Water Transport All Other manently maintained navigation aides E2 Cooling Water All Other all stream segments having one or more users for industrial cooling all stream segments extending from a point 500 feet upstream from the intake to a point one-half mile E3 Power Production All Other below the wastewater discharge point E4 Industrial All Other all stream segments with one or more industrial users. It does not include water for cooling determination). Waterbodies that are impaired by a pollutant are placed for human health protection is unspeci¿ ed, but there are no allowable on the 303(d) List and scheduled for TMDL development. exceedances. Numeric criteria consist of a concentration value, exposure duration The DEP recently received approval from the EPA for changes in several and an allowable exceedance frequency. The water quality standards water quality standards related to total iron, nutrients and chlorophyll-a. prescribe numeric criteria for all designated uses. For the “propagation With respect to total iron, the recent approval revises the chronic aquatic and maintenance of ¿ sh and other aquatic life” (Aquatic Life) use, there life criterion for troutwaters from 0.5 mg/l to 1.0 mg/l. The DEP and are two forms: acute criteria that are designed to prevent lethality, and EPA concluded that the revised value is protective of the troutwater use. chronic criteria that prevent retardation of growth and reproduction. The numeric criteria for acute aquatic life protection are speci¿ ed as one-hour The new nutrient criteria include values for total phosphorus and average concentrations that are not to be exceeded more than once in chlorophyll-a for both cool and warm water lakes. The criteria are a three-year period. The criteria for chronic aquatic life protection are applied to an average of a minimum of four samples collected throughout speci¿ ed as four-day average concentrations that are not to be exceeded the sampling period from May 1 to October 31. The warm water more than once in a three-year period. The exposure time criterion lakes criteria for total phosphorus and chlorophyll-a are 40 ug/l and 20 5 DDivisionivision ooff WWaterater aandnd WWasteaJA2759ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 133 of Filed235 07/07/16 Page 19 of 279 PageID #: 4031 ug/l, respectively. Cool water lakes criteria for total phosphorus and West Virginia based on the state’s total iron numeric water quality chlorophyll-a are 30 ug/l and 10 ug/l respectively. It should be noted that standard. In 2012, ORSANCO’s governing commission began using a in the 2014 Triennial Review of Water Quality Standards, DEP proposed weight of evidence approach when assessing all aquatic life standards. to remove section 8.3.a.3 of 47CSR2 (the “WQS Rule”). This section However, the EPA’s Region III of¿ ce has stated for 303(d) listing stated that a lake was not in violation of nutrient water quality standards purposes, it will only accept assessments based on a philosophy of if only the phosphorus numeric criterion was exceeded. With recent independent applicability. Therefore, West Virginia’s 303(d) assessments EPA approval of the removal of this section the DEP assessed lakes for for aquatic life will recognize violations based on either water quality chlorophyll a and phosphorus criteria compliance independently during or biological survey data. A review of the ORSANCO total iron water the 2014 reporting cycle. quality data revealed violation rates greater than 10 percent for several segments along the state’s border and, as such, the segments have been Water quality criteria also can be written in a narrative form. For listed as impaired on West Virginia’s 2014 303(d) list. example, the water quality standards contain a provision that states that wastes, present in any waters of the state, shall not adversely alter the integrity of the waters or cause signi¿ cant adverse impact to the Surface Water Monitoring and Assessment This section describes West Virginia’s strategy to monitor and assess chemical, physical, hydrologic, or biological components of aquatic the surface waters of the state. The DEP’s Division of Water and Waste ecosystems. Narrative criteria are contained in Section 3 of 47CSR2. Management (DWWM) collects most of the state’s water quality data. More information regarding the use of narrative criteria is contained in The Watershed Assessment Branch (WAB) of DWWM is responsible the Use Assessment Procedures section. for general water quality monitoring and watershed assessment. The remainder of this section describes the monitoring and assessment Ohio River criteria activities conducted by the WAB. In addition, WAB water quality data is For the Ohio River, both the Ohio River Valley Water Sanitation currently available at: https://apps.dep.wv.gov/dwwm/wqdata/. The data Commission (ORSANCO) and West Virginia water quality criteria at this site is continually updated as the site is live-linked to the database. were considered, as agreed upon in the ORSANCO compact. Where WAB biological data is available at https://apps.dep.wv.gov/dwwm/ both ORSANCO and West Virginia standards contain a criterion for a wqdatab/. particular parameter, instream values were compared against the more stringent criterion. The DEP supports ORSANCO’s efforts to promote Streams and Rivers consistent decisions by the various jurisdictions with authority to develop West Virginia has a comprehensive strategy for monitoring the À owing 305(b) reports and 303(d) lists for the Ohio River. In support of those waters of the state, by far the most prevalent surface waterbody type in efforts, West Virginia has and will continue to work with ORSANCO and the state. The Watershed Assessment Branch utilizes a tiered approach, the other member states through a workgroup charged with improving collecting data from long-term monitoring stations, targeted sites within consistency of 305(b) reporting among compact states. ORSANCO watersheds on a rotating basin schedule, randomly selected sites, and standards may be reviewed at http://www.orsanco.org/standards. sites chosen to further de¿ ne impaired stream segments in support of TMDL development. The following paragraphs present these approaches Prior to West Virginia’s Draft 2012 303(d) List, ORSANCO noti¿ ed in further detail. its member states of a change in philosophy for assessing aquatic life standards for its biennial 305(b) report. In prior years, ORSANCO has assessed water quality data along sections of the Ohio River bordering 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 6 JA2760 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 134 of Filed235 07/07/16 Page 20 of 279 PageID #: 4032 Probabilistic (random) Sampling Targeted Monitoring In 1997, the DEP’s Watershed Assessment Branch began sampling Targeted monitoring has been a component of West Virginia’s assessment sites selected through the Environmental Protection Agency’s random toolbox since the Watershed Assessment Program’s inception in late strati¿ ed procedure in order to better assess the ecological health of 1995. Streams are sampled according to a ¿ ve-year rotating basin watersheds and ecoregions within the state. The data generated from this approach. Sites are selected from the watersheds targeted for sampling random strati¿ ed (also known as probabilistic) sampling effort allows each particular year. Each site is subjected to a one-time evaluation of the DEP and the EPA to make statistically valid comparisons of aquatic riparian and instream habitat, basic water quality parameters, and benthic integrity between watersheds and ecoregions. The data also assists in macroinvertebrate communities. monitoring long-term trends in watershed and ecoregion health. Further details are provided in the section titled Probabilistic Data Summary. Sites are selected to meet a variety of informational needs in the following areas: Ambient Water Quality Monitoring Network ¼ Impaired streams The ambient water ¼ Reference (minimally impacted) streams Figure 1 – West Virginia’s ambient monitoring sites quality monitoring ¼ Spatial trends (multiple sites on streams exceeding 15 miles network concept was in length) established in the mid- ¼ Areas of concern as identi¿ ed by the public and stakeholders 1940s. The network ¼ Previously unassessed streams currently consists 8 6 3 of 26 ¿ xed stations 7 2 Pre-Total Maximum Daily Load (TMDL) Development Monitoring 11 9 5 4 (Figure 1) that are 10 1 The major objective of this effort is to collect suf¿ cient data for Total sampled bi-monthly. 12 Maximum Daily Load (TMDL) modelers to develop stream restoration 13 Sampling stations plans. Pre-TMDL sampling follows the framework cycle, i.e., impaired are generally located 14 streams from watersheds in hydrologic group A will be sampled in the 15 20 near the mouths of the 16 22 same year as the targeted sampling. The 303(d) List is the basis for 19 21 state’s larger rivers and 17 23 initial site selection and additional sites are added to comprehensively are co-located with 18 assess tributary waters and to allow identi¿ cation of the suspected 24 USGS stream gages. 25 sources of impairment. Pre-TMDL Monitoring is intensive, consisting The data provides 26 of monthly sampling for parameters of concern. This method captures information for trend 1. Shenandoah River at Harpers Ferry 14. Kanawha River at Winfi eld data under a variety of weather conditions and À ow regimes. Pre- analyses, general water 2. Opequon Creek east of Bedington 15. Guyandotte River at Huntington TMDL monitoring also includes an effort to locate the speci¿ c sources 3. Cacapon River near Great Cacapon 16. Twelvepole Creek south of Ceredo quality assessments 4. South Branch of the Potomac River 17. Tug Fork at Fort Gay of impairment, with particular attention to identifying non-point source and pollutant loading 5. Cheat River at Albright, W.Va. 18. Guyandotte River at Pecks Mill land use stressors as well as any permitted facilities that may not be 6. Cheat River below Cheat Lake 19. Coal River at Tornado calculations, and 7. Monongahela River in Star City 20. Elk River at Coonskin Park meeting their permit requirements. For more information, see the TMDL allows water resources 8. Dundard Creek east of Pentress 21. Kanawha River at Chelyan Development Process section. 9. Tygart Valley River at Colfax 22. Gauley River at Beech Glen managers to quickly 10. West Fork River at Enterprise 23. New River above Gauley Bridge gauge the health of the 11. Middle Island Creek at Arvilla 24. Greenbrier River at Hinton Lakes and Reservoirs 12. Hughes River west of Freeport 25. New River at Hinton state’s major waterways. 13. Little Kanawha River at Elizabeth 26. New River at Virginia state line The DEP resumed a lake monitoring component in 2006. This program 7 DDivisionivision ooff WWaterater aandnd WWasteaJA2761ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 135 of Filed235 07/07/16 Page 21 of 279 PageID #: 4033 focuses on water quality, collecting ¿ eld parameters (dissolved oxygen, Table 3 - Current and future monitoring activities pH, temperature, and conductivity), nutrient data, clarity, and chlorophyll 26 Ambient sites will continue to be monitored bi-monthly (monthly for Monongahela a. Multiple sites are sampled in larger lakes and pro¿ le data for River Basin sites during low À ow season) temperature and dissolved oxygen are obtained. A fourth round of probabilistic monitoring was conducted in 2013 and 2014. The fourth round will be completed in 2017 after 5 consecutive years of sampling. The DEP added the collection of benthic macroinvertebrates to the lake Pre-TMDL development monitoring: Monitoring was completed in 2012 for select monitoring program in 2011. Collections are made from near shoreline streams in the Coal, Dunkard, Elk, Gauley, South Branch Potomac, Shenandoah habitat using jabs and sweeps with a d-net. Plans are to eventually (Hardy), Upper Kanawha, Upper Ohio North, Upper Ohio South, and West Fork develop an IBI for use in lakes. watersheds; monitoring was completed for the Tygart Valley River watershed in 2013; monitoring was completed in 2014 for select streams in the Potomac Direct Drains and Gauley (Meadow River) watersheds; and monitoring started in June 2014 within Many of West Virginia’s largest reservoirs are controlled by the the Little Kanawha (Hughes River) and Monongahela (mainstem and Deckers Creek) U.S. Army Corps of Engineers. Although The Corps’ primary watersheds and will be completed in July 2015. mission is to manage structures to provide navigation and Targeted Sampling – In Group B, approximately 24 sites were sampled during the À ood control, the agency also is committed to water quality 2012 summer sampling season from the Coal, Elk, and Tygart Valley watersheds. In management. Data generated by the Corps has been used for Group C, approximately 211 sites were sampled on 174 streams within the Tug Fork watershed in 2013. assessment purposes. Lakes – Ten lakes within Group B watersheds were samples four times (May – October) in 2012; 13 lakes were sampled 4 times in 2013 within Group C watersheds; Additional lake information is available from the West and 9 lakes were sampled 4 times in 2014 within Group D watersheds. Virginia Division of Natural Resources. The DNR, one of the Water quality meters that collect continuous data were deployed at 183 sites on 141 signatory agencies in the Partnership for Statewide Watershed streams in total for the years 2012, 2013, & 2014. Future years may see an increased Management, conducts ¿ sh community surveys on many of the effort in the number of deployable meters used to monitor streams. Parameters include state’s reservoirs. pH, temperature, speci¿ c conductance, and dissolved oxygen. Long Term Monitoring Sites (LTMS) – Approximately 65 sites were sampled in 2012, Wetlands 2013, and 2014. A similar effort is planned for future years. The State of West Virginia takes great interest in the management of its in conjunction with the EPA and other states. The Wildlife Resources wetlands both large and small. The current total acreage of wetlands Section of the DNR, in cooperation with West Virginia University, has within the state is approximately 89,000 acres and comprises less than evaluated aerial photography from 2003 at a 1:4800 scale to supplement one percent of the State’s total acreage (National Wetlands Inventory: the data from the original National Wetlands Inventory (NWI). The WV 1980-86). As of this report, management efforts are currently geared detailed information this project provides allows for the identi¿ cation of toward protection of wetlands by regulatory proceedings or acquisition. man-made changes since the 1986 NWI and enables proper Cowardin Permitting authority for activities impacting wetlands (Section 404) classi¿ cation. lies with the U. S. Army Corps of Engineers. West Virginia insures protection through an active Section 401certi¿ cation program. The DNR updated the West Virginia Wetland Rapid Assessment Procedure (WVWRAP) for wetlands in 2011. A WVWRAP (Level II) Since the submission of the last 305(b) report; West Virginia’s wetlands assessment captures in excess of 100 descriptive and assessment metrics monitoring activities have expanded. Watershed Assessment personnel at each site which are used directly or indirectly to provide wetland have been researching/developing assessment and monitoring strategies integrity and functional assessments. The WVWRAP has been applied at 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 8 JA2762 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 136 of Filed235 07/07/16 Page 22 of 279 PageID #: 4034 more than 680 sites to validate the technique. Calibration with intensive to become involved in the improvement and protection of the state’s (Level III) assessments and GIS remote (Level I) assessments on the streams. Save Our Streams has two main objectives. First, it provides same wetlands/sites continues and will provide more con¿ dence in data the state with enhanced ability to monitor and protect its surface that will be generated in future rapid assessments. The DNR has also waters through increased water quality and aquatic life monitoring. developed an Index of Biologic Integrity (IBI) for wetlands and applied Second, it improves water quality through educational outreach to it to approximately 90 wetlands which will contribute to the creation the state’s citizens. Training workshops are conducted regularly of reference standards for wetland integrity and wetland function. In throughout the state to train, certify and provide quality assurance. A conjunction; approximately 40 landscape metrics descriptive of wetland major improvement in data accessibility for the program has been the ecological integrity and wetland functions have been extracted and/or development of an online Volunteer Assessment Database (VAD): derived for all palustrine, emergent, shrub-scrub and forested wetlands http://www.dep.wv.gov/WWE/getinvolved/sos/ Pages/VAD.aspx. identi¿ ed in the National Wetland Inventory. These metrics will be Volunteer monitors can register and enter their own data online. The used as input data to generate indices of function and integrity in the coordinator is the database administrator, and has tools to verify the assessment of wetland condition and functionality across the state. quality of the information before it is approved and included in the VAD. The database is also available for public viewing without registration. In The DEP and DNR are working together towards the development of addition, the program periodically prepares the “State of Our Streams” a more structured wetlands monitoring program. The current project report and coordinates with partners to undertake water quality studies entails the development of functional indices that will calculate the value within the state as well as other portions of the Mid-Atlantic region. To of wetlands for their ability to attenuate À oods and provide clean water, learn more visit: http://www.dep.wv.gov/sos. as well as for its ecological and recreational (aesthetic and educational) functions. These indices will be used to help guide wetland related development and mitigation activities of the state. DATA MANAGEMENT Assessed Data All readily available data was used during the evaluation process. In The DNR submitted in the spring of 2011 its West Virginia Wetland preparation for the development of this report, the agency sought water Program Plan, which describes a general direction for the state through quality information from various state and federal agencies. Speci¿ c 2015. The overall goal of the plan is to provide guidance and direction to requests for data were made to state and federal agencies known by the the two state agencies (DEP and DNR) directly involved with conserving DEP to be generators of water quality data. Additionally, news releases and regulating wetland activities in the state. The plan includes and public notices requesting data submissions were published in state suggestions for core monitoring elements, water quality standards, and newspapers and on the DEP Water and Waste Management’s website. increasing education/outreach efforts. The DEP’s staff reviewed data from external sources to ensure that collection and analytical methods, quality assurance and quality control The West Virginia ¿ eld portion of the U.S. EPA’s National Wetlands and method detection levels were consistent with approved procedures. Condition Assessment was completed in September 2011 and the DEP In addition, the DEP has developed guidance for those wishing to submit plans to participate in the next national assessment in 2016. data. The document contained a list of requirements for submitted data along with helpful internet links and a checklist for data submitters. Citizen Monitoring The guide and additional information regarding data assembly and West Virginia Save Our Streams is the state’s volunteer water quality submission, when requested by the DEP for 303(d) list development, monitoring program. Initiated in 1989, this program encourages citizens 9 DDivisionivision ooff WWaterater aandnd WWasteaJA2763ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 137 of Filed235 07/07/16 Page 23 of 279 PageID #: 4035 was found on the DEP’s Web site using the following link: http:// Branch were considered in the development of this report. This also www.dep.wv.gov/WWE/watershed/IR/Documents/WV_WQ_Data_ includes data from other the DEP programs. Entities that provided Submission_Guidelines_2010.pdf information in response to the agency’s request for data for the 2014 Section 303(d) list are shown in Table 4. External data received and Assessment decisions are made using the most accurate and recent data quali¿ ed in the preparation of previous Section 303(d) lists were available to the agency. For stream water quality assessments, the DEP reconsidered in the 2014 review. Once data was submitted, the DEP generally used water quality data with sample dates between July 2008 performed the following: and June 2013 with the use of data more than ¿ ve years old intentionally ¼Determined quality and quantity limited. However, in the absence of new information, previous ¼Determined stream codes and mile points assessments are carried forward even if the data becomes older than ¿ ve ¼Formatted data for evaluation years. Additionally, if a water quality criteria change is approved which ¼Used quali¿ ed data from external sources to make assessment affects an older assessment, the new assessment is based upon the current decisions criteria. Waters are not deemed impaired based upon water quality data collected USE ASSESSMENT PROCEDURES The primary focus of this report is to assess water quality information when stream À ow conditions are less than 7Q10 À ow (the seven and determine if the designated uses of state waters are impaired. This consecutive day average low À ow that recurs at a 10 year interval) or section describes the various protocols used to determine use impairment. within regulatory mixing zones. Further, waters are not deemed impaired based upon “not-detected” analytical results from methodologies that Numeric Water Quality Criteria have detection limits that are not sensitive enough to con¿ rm criteria The decision methodology for numeric water quality criteria used in compliance. For example, a dissolved aluminum result of “not detected” preparation of the 2014 Section 303(d) list are consistent with those used using a method with a detection limit of 0.1 mg/l would not prompt a in 2012 listing cycle. dissolved aluminum listing for trout waters with a criterion of 0.087 mg/l. Typically, if an ample data set exists and exceedances of chronic aquatic External Data Providers life protection and/or human health protection criteria occur more than Data submitted from sources outside of the Watershed Assessment 10 percent of the time, the water is considered to be impaired. If the rate Table 4 - Data providers for the 2014 303(d) List and Integrated Report of exceedance demonstrated is less than or equal to 10 percent, then the National Park Service - West Virginia Department of water is considered to be meeting the designated use under evaluation. U.S. Department of Interior Agriculture Ample data sets are de¿ ned as sets with 20 or more distinct observations in the ¿ ve-year period used for evaluation in this listing cycle (July 2008 Plateau Action Network Trout Unlimited to June 2013). If fewer than 20 samples per station (or representative U.S. Geological Survey ORSANCO area) exist and three or more values exceed a criterion value, then the water also is considered to be impaired. For this scenario (three observed West Virginia Department of Kanawha Valley Development violations), if additional non-exceeding monitoring results were available Environmental Protection Corporation that would increase the data set size to 20 observations, a greater than 10 U.S. Army Corp of Engineers percent exceedance frequency would still exist. 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 10 JA2764 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 138 of Filed235 07/07/16 Page 24 of 279 PageID #: 4036 Under West Virginia Water Quality Standards, acute aquatic life under this format is among the most comprehensive available for protection criteria have associated exposure durations of one hour assessing water quality. Upon conclusion of monitoring, it is then and may be exceeded once every three years. The normal practice of necessary for agency personnel to make a de¿ nitive judgment relative to “grab-sampling” ambient waters is generally consistent with the one- impairment. In most instances, application of the “10-percent rule” to hour exposure duration speci¿ ed in the standards. Therefore, a direct the pre-TMDL monitoring data sets result in the classi¿ cation of waters application of the allowable exceedance frequency provided in the as impaired if two or more exceedances of a criterion are demonstrated. standards is made when assessing impairment relative to acute aquatic Table 5 summarizes the criteria used to make 303(d) impairment life protection criteria. If two or more exceedances of acute criteria are decisions relative to numeric water quality criteria period. Table 5 - Numeric water quality decision criteria for listing of impaired waters Water Quality Criteria Impairment Thresholds Additional Considerations Acute Aquatic Life Protection The water is impaired if two exceedances of acute aquatic life protection If, in the most recent three-year period, no (Use Category B) numeric criteria occur within any three-year period. exceedances of criteria are evidenced and at least 12 monitoring results are available, then the water may be considered “not impaired.” Chronic Aquatic Life Protection The water is impaired if a greater than 10% frequency of exceedance is If, for waters with regularly scheduled (Use Category B) demonstrated in an ample dataset (20 or more available observations). monitoring, in the most recent two-year period, Human Health Protection no exceedances of criteria are evidenced and at (Use Categories A and C) The water is impaired if three exceedances of criteria occur with less than 20 least eight observations are available, then the available monitoring results. water may not be considered impaired. The water is impaired if a greater than 10% frequency of exceedance is demonstrated with less than 20 available observations, if the data being evaluated is of high assessment quality ( two or more violations) observed in any three-year period, the water is considered to be impaired. Segmentation of Streams If the data being evaluated is generated as part of a comprehensive The majority of newly listed streams were identi¿ ed as impaired for network being monitored for a speci¿ c purpose, the data may be assigned their entire length. Segmentation occurred only in limited situations a higher level of assessment quality, and the “10-percent rule” may be involving streams with impoundments or alternative designated uses, or applied with con¿ dence to data sets containing less than 20 observations when knowledge of a speci¿ c pollutant source allowed clear distinction per station. The primary example of an intensi¿ ed monitoring of impaired and unimpaired segments or streams with multiple program that generates higher assessment quality data is that which is monitoring locations with differing results. Multiple sample site stream conducted by the DEP to support TMDL development. The pre-TMDL segmentation, when done, is accomplished by continuing an assessed monitoring format includes À ow measurement and monthly water quality condition until samples from additional sites demonstrate a change in monitoring for one year at multiple locations throughout a watershed. water quality. In other words, if water quality results from one site Information is generated over a range of stream À ow conditions and in indicate impairment, the stream is considered impaired until downstream all seasons. Habitat assessment and biological monitoring is performed or upstream samples indicate compliance with the water quality criterion. in conjunction with water quality monitoring. The information generated 11 DDivisionivision ooff WWaterater aandnd WWasteaJA2765ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 139 of Filed235 07/07/16 Page 25 of 279 PageID #: 4037 Segmentation based upon the limited amount of water quality monitoring counts/100ml. Evaluation of the monthly geometric mean fecal coliform data that is usually available may not accurately portray the extent of criterion (200 counts/100ml) occurs only where ¿ ve or more individual impairment and may contradict the ultimate ¿ ndings of the TMDL that sample results are available within a calendar month. the listing mandates. The DEP believes the TMDL development process, which links extensive water quality monitoring and source tracking Numeric fecal coliform water quality criteria are applicable to the Water efforts with pollutant sources through computer modeling, provides Contact Recreation and Public Water Supply designated uses. Section the best assessment of criterion attainment and the most accurate 8.13 of Appendix E of the West Virginia Water Quality Standards states: identi¿ cation of the watershed sources for which pollutant reductions are 8.13 Maximum allowable level of fecal coliform content for necessary. TMDL modeling predicts water quality over a wide range of Primary Contact Recreation shall not exceed 200/100ml as a climatic and stream À ow conditions, incorporates the speci¿ c exposure monthly geometric mean based on not less than fi ve samples per duration and exceedance frequency terms of water quality criteria and month; nor to exceed 400/100ml in more than 10 percent of all prescribes pollutant/s allocations that will result in attainment of criteria samples taken during the month. in all stream segments. 8.13.1 Ohio River mainstem (zone I) - During the non- recreational season (November through April only) the maximum Evaluation of Continuous Monitoring Data allowable level of fecal coliform for the Ohio River (either MPN Recently, the DEP began using deployable sondes to collect data on or MF) shall not exceed 2000/100 ml as a monthly geometric a continuous basis on selected streams. The sampling methodology mean based on not less than 5 samples per month. essentially uses electronic probes designed to remain submerged and collect data continuously for a period of time ranging from several days A practical dif¿ culty exists in accurate assessment of criteria compliance to several months. This method is especially effective for evaluating the due to the resource commitment that would be necessary to perform speci¿ c requirements of water quality criteria for parameters such as pH monitoring at a suf¿ cient frequency to make determinations using the and dissolved oxygen. For example, the pH criterion states that water geometric mean criteria, since the monthly geometric mean criterion is quality values should remain between 6.0 and 9.0 standard units at all conditioned upon the availability of at least ¿ ve distinct sample results times (exception for waters with high photosynthetic activity). The use in a month. The “maximum daily” criterion is not conditioned by a of continuous monitors allows the DEP to better assess if streams are minimum sample set requirement, but practical use of the apparent 10 meeting the criteria. DEP is currently developing a method to assess the percent exceedance allowance would involve at least 10 samples per vast amount of data collected by continuous monitoring instruments. month. The methodology must address both the magnitude and frequency of violation stipulated in current water quality criteria. DEP plans to The most frequent and regular fecal coliform water quality monitoring develop a continuous monitoring assessment methodology for use in the conducted by the Watershed Assessment Section is once per month. That 2016 cycle. monitoring frequency precludes assessment of the monthly geometric mean criterion and hampers accurate assessment of the maximum Evaluation of Fecal Coliform Numeric Criteria daily criterion. Due to limited resources, more frequent fecal coliform Fecal coliform assessments were based on the previously described monitoring could only be accomplished by signi¿ cantly reducing the decision criteria for numeric water quality criteria. Given the number of West Virginia streams and/or stations where water quality complexity of this particular criteria, most assessments are performed by assessments are performed. The DEP does not consider that to be a comparing observations to the “maximum daily” criterion value of 400 reasonable alternative. 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 12 JA2766 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 140 of Filed235 07/07/16 Page 26 of 279 PageID #: 4038 The DEP uses the following protocols when making assessments relative Narrative Water Quality Criteria – Biological Impairment Data to fecal coliform numeric criteria: Passage of Senate Bill 562 in the 2012 regular legislative session requires DEP to develop and secure legislative approval of new rules to interpret 1. No assessments are based upon the monthly geometric mean the narrative criterion for biological impairment found in 47 CSR 2-3.2.i. criterion (200 counts/100ml) unless an available data set includes A copy of the legislation may be viewed at monitoring at fi ve per month or greater frequency. When data sets are http://www.legis.state.wv.us/Bill_Text_HTML/2012_SESSIONS/RS/ available, the listing decision criteria for numeric water quality criteria Bills/SB562%20SUB1%20enr.htm are applied, considering each monthly geometric mean as an available monitoring result. The narrative water quality criterion of 47CSR2 – 3.2.i. prohibits the 2. The listing decision criteria are applied to the maximum presence of wastes in state waters that cause or contribute to signi¿ cant daily criterion (400 counts/100ml) and available individual monitoring adverse impact to the chemical, physical, hydrologic and biological results, but without the monthly prejudice. For example, if twice per components of aquatic ecosystems. Historically, the DEP interpreted month monitoring is conducted for a year and two results in two separate the criterion using the West Virginia Stream Condition Index (WVSCI). months are greater than 400, the stream would be assessed as fully The WVSCI is a benthic macroinvertebrate multi-metric index for use supporting (2/24 – 8.3 percent rate of exceedance rather than basing in wadeable streams. It is composed of six metrics that were selected assessments on two months out of 12 in noncompliance (2/12 – 16.7 to maximize discrimination between streams with known impairments percent rate of exceedance). If fi ve samples per month monitoring and reference streams. Streams were listed if the data was comparable is conducted for one year and four daily results greater than 400 are (e.g., collected utilizing the same methods used to develop the WVSCI, measured in four different months, the stream would be assessed as adequate À ow in rifÀ e/run habitat, and within the index period). The fully supporting (4/60 – 6.7 percent rate of exceedance) rather than historical WVSCI listing threshold was 60.6, which represented the 5th nonsupporting (4/12 – 33.3 percent rate of exceedance), provided that percentile of reference scores less 7.4 points to account for uncertainty. the monthly geometric means were below the 200 counts/100 ml criteria. Whereas the WVSCI evaluates biological integrity using only benthic The decision criteria does not provide for 303(d) listing of waters with macroinvertebrate data, SB 562 directs the DEP to additionally consider severely limited data sets and exceedance (i.e., one sample in a ¿ ve-year ¿ sh in its assessment methodology. The revised assessment methodology period > 400 counts/100ml). Such waters would be classi¿ ed as having called for in SB 562 has not yet been ¿ nalized. The development insuf¿ cient data available for use assessment. The DEP will target these of a multi-assemblage tool has proven to be much more dif¿ cult “fecal one-hit” waters for additional monitoring by incorporating them than originally expected. Although not available for this list, a new into the pre-TMDL monitoring plans at the next opportunity for TMDL methodology is expected to be presented to the 2016 Legislature. development in their watershed. Where the intensi¿ ed pre-TMDL monitoring (monthly sampling for one year) indicates impairment, In its preparation of the Draft West Virginia 2012 Section 303(d) list, TMDL development will be immediately initiated, even though the water the DEP did not add new biological impairments. Previously listed may not be included in Category 5 of the current Integrated Report. biological impairments were proposed to be retained. In ¿ nalizing the 2012 list, the EPA added biological listings to those proposed by the DEP. The EPA considered available benthic macroinvertebrate data and added impairments to the list for biological scores less than 68 under the WVSCI methodology. The EPA determined the uncertainty 13 DDivisionivision ooff WWaterater aandnd WWasteaJA2767ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 141 of Filed235 07/07/16 Page 27 of 279 PageID #: 4039 zone historically used by the DEP was not scienti¿ cally supported and presence of materials in concentrations that are harmful, hazardous or therefore used an impairment threshold equal to the 5th percentile of toxic to man, animal or aquatic life in state waters. Fish consumption reference scores. advisories are used to inform the public about potential health risks associated with eating ¿ sh from West Virginia’s streams. The DEP, For 2014, the DEP has proposed biological impairment listings based the Division of Natural Resources, and the Bureau for Public Health upon the methodology used by the EPA in their 2012 oversight actions. have worked together on ¿ sh contamination issues since the 1980s The DEP has retained most biological impairments identi¿ ed in the Final and an executive order from the governor and subsequent Interagency West Virginia 2012 Section 303(d) List and has added new listings using Agreement signed in 2000 formalized the collaborative process the WVSCI and a threshold of 68. for developing ¿ sh consumption advisories. Except for pollutants with speci¿ c body-burden criteria (methylmercury), the presence of Each listed stream will be revisited prior to TMDL development. contaminants in ¿ sh tissue in amounts resulting in a two meal per month Additional biological monitoring will be performed as necessary to or more restrictive, waterbody-speci¿ c, ¿ sh consumption advisory is implement the new assessment methodology. The causative stressor(s) evidence of impairment. of impairment and the contributing sources of pollution will be identi¿ ed during the TMDL development process. Risk-based principles are used to determine whether ¿ sh consumption advisories are necessary. These advisories are used as a public education Biological impairments identi¿ ed in the Final West Virginia 2012 Section tool to help citizens make informed decisions about eating ¿ sh caught 303(d) List are proposed to be delisted under the following scenarios: in state streams. The risk-based approach estimates the probability of ¼ Where previous listings were determined to have been made adverse health effects and provides a statement on the health risk facing in error. the angler and high-risk groups including women of childbearing age and ¼ Where more recent biological monitoring results children. West Virginia’s ¿ sh consumption advisories include guidelines demonstrated WVSCI scores greater than 68. on the number of meals to eat and information on proper ¿ sh preparation ¼ Where approved TMDLs have been developed pursuant to further minimize risk. to numeric water quality criteria and the Stressor Identi¿ cation performed in the TMDL process demonstrated Waterbody-speci¿ c ¿ sh consumption advisories exist for 12 state that their implementation would resolve the stress to the streams and ¿ ve lakes for a variety of ¿ sh species and contaminants. benthic macroinvertebrate community that caused the original Additionally, there is a general statewide advisory that recommends listing. limiting the consumption of certain sport-caught ¿ sh from all West Virginia waters in relation to low-level mercury and/or polychlorinated Delistings under the ¿ rst two scenarios are identi¿ ed in Supplemental biphenyl (PCB) contamination. The statewide advisory provides species- Table A. The prior listings for which surrogate TMDLs address speci¿ c recommendations ranging from one meal per week to one meal biological impairment are identi¿ ed in Supplemental Table B per month. The following webpage contains the 2014 West Virginia ¿ sh (Example 1). consumption advisories: http://www.wvdhhr.org/¿ sh/Current_Advisories.asp#sect2. Narrative Water Quality Criteria - Fish Tissue and Fish Consumption West Virginia water quality standards contain a numeric body-burden Advisories criterion for methylmercury in ¿ sh tissue for protection of public water The narrative water quality criterion of 47CSR2 – 3.2.e prohibits the supply and water contact recreation designated uses. The criterion states 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 14 JA2768 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 142 of Filed235 07/07/16 Page 28 of 279 PageID #: 4040 “The total organism body burden of any aquatic species shall not exceed The new 0.5 g/g as methylmercury.” Therefore, the DEP must apply the criteria methodology to all aquatic species rather than just the commonly consumed ¿ sh (303(d) Listing species. Fish tissue methylmercury assessment is directly based upon the Methodology numeric criterion and not upon ¿ sh consumption advisories. for Algae Blooms). In the 2010 listing cycle, the DEP delisted many previous mercury was ¿ nalized impairments because they were based upon total mercury rather than by the DEP in methylmercury ¿ sh tissue concentrations and upon ¿ llet rather than June 2013 and CCross-sectionalross-sectional algaealgae measurementmeasurement duringduring thethe YellowYellow SSpringpring toto CaponCapon BridgeBridge longitudinallongitudinal survey.survey. whole body samples. 2014 mercury listings adhere to the speci¿ c is available at 22013013 conditions of the criterion (whole-body, methylmercury, species- http://www. speci¿ c). dep.wv.gov/WWE/Programs/wqs/Documents/Greenbrier%20Algae/ AlgaeListingMethodology2014.pdf The DEP collected ¿ sh from selected streams and lakes in West Virginia The DEP commissioned research to determine river users’ tolerance based on past listings and waters with suspected contamination. Each levels for ¿ lamentous alage growth. The report West Virginia Residents’ ¿ sh collected was processed separately and analyzed for whole body Opinions On And Tolerance Levels Of Algae In West Virginia Waters is methlymercury concentration. The analytical results assessed for 303(d) available at http://www.dep.wv.gov/WWE/Programs/wqs/Documents/ purposes include only ¿ sh with a length equal to or greater than 75% of WVAlgaeSurveReport_ResMgmt_WVDEP_2012.pdf. River users the longest individual ¿ sh in each species at each site. This quali¿ cation were surveyed to determine the amount of ¿ lamentous algae cover that is based on a general rule for compositing of ¿ sh tissue samples. The would adversely impact recreational activities. The DEP considered individual results of all quali¿ ed ¿ sh within each species were averaged the results of the survey when establishing thresholds for algae blooms to obtain a value for comparison to the criterion. If the average for that impair the Water Contact Recreation designated use. In general, a all quali¿ ed ¿ sh of any species exceeded the 0.5 ug/g criterion, the stream segment is considered impaired if ¿ lamentous algae cover greater waterbody was listed as impaired for methylmercury. The 2014 303(d) than 20% extends for a longitudinal distance greater than three times the list contains six lakes listed as impaired for methylmercury. average stream width (3xW) OR if ¿ lamentous algae cover of greater than 40% is observed, regardless of the longitudinal extent of the bloom. For the mainstem Ohio River, the applicable ORSANCO body-burden criterion is 0.3 g/g. As with previous 303(d) lists, DEP has deferred The DEP also considers streams to be impaired if algae blooms cause to ORSANCO’s assessment results for mercury listing purposes. taste or odor that interferes with the Public Water Supply designated ORSANCO’s assessment methodology is included in their Biennial use. The application of drinking water treatment beyond “conventional Assessment of Ohio River Water Quality Conditions for 2014. treatment” in response to algae blooms is considered direct evidence of use impairment. Additionally, the DEP considers available taste or Narrative Water Quality Criteria - Algal Blooms odor complaints about ¿ nished drinking water when assessing the Public The narrative water quality criterion of 47CSR2 – 3.2.g prohibits Water Supply designated use and may classify the use as impaired even algae blooms which may impair or interfere with the designated uses though additional treatment is not implemented. of the affected waters. Signi¿ cant improvements have been made to the assessment methodology used for this criterion in previous cycles. The application of the assessment methodology to observations from the 15 DDivisionivision ooff WWaterater aandnd WWasteaJA2769ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 143 of Filed235 07/07/16 Page 29 of 279 PageID #: 4041 2011, 2012, 2013 growing seasons resulted in the following impairments usually contribute to the larger waterbodies which have been assessed. on the 2014 Draft West Virginia 303(d) List: All major rivers in the state have data and have been assessed and placed ¼ Greenbrier River - re¿ nement of the 2012 listing to reÀ ect into one of the other four categories. Approximately 44% of West impairment from Stony Creek (MP 12.1) to Howards Creek Virginia’s streams are impaired and fall into either Category 4 or 5. (MP 50.00) ¼ Cacapon River – Forks of Cacapon to Wardensville (listing The lists of Category 1, Category 2, and Category 3 waters are quite remains unchanged) large; therefore, they are not published in this document. The waters ¼ South Branch of Potomac River – Romney to Moore¿ eld included in these three categories can be viewed at (listing remains unchanged) http://www.dep.wv.gov/WWE/WATERSHED/IR/Pages/303d_305b.aspx. ¼ Tygart River – New Listing – Just upstream of Elkins POTW (MP 80.32) to Grassy Run The guidelines used by the DEP to demonstrate use-support for streams (and subsequent classi¿ cation into Categories 1, 2 or 3) vary for each of the designated uses. “Supporting” assessments for individual uses ASSESSMENT RESULTS are made if certain mandatory parameters have been monitored and Streams those results demonstrate compliance with criteria. If monitoring results This section contains the results from all the data that has been assessed are available for “non-mandatory” parameters, they also must indicate for West Virginia streams. Table 6 shows a summary of the classi¿ cation compliance with any criteria prescribed for the use. To demonstrate of West Virginia waters under the ¿ ve “Integrated Report” categories support, aquatic life uses in wadeable streams require benthic (see page 4). The results reveal that 22% of West Virginia’s stream macroinvertebrate monitoring and results showing a WVSCI score miles are in either Category 1 or 2 (fully supporting all or some assessed greater than or equal to 68. Public Water Supply and Water Contact uses). Category Table 6 - 2014 Category Summary Report for West Virginia Recreation uses require compliant fecal coliform monitoring and all other 3, streams with LAKES uses require compliant pH and dissolved oxygen monitoring. Type CATEGORY # of lakes % lakes acres % acres insuf¿ cient Lake 1 0 0 0 0 data, makes up Stream segments that support all of the designated uses are placed in Lake 2 38 29 4239 19 34% of stream Lake 3 72 55 7185 32 Category 1. Stream segments without suf¿cient data to determine use miles, the largest Lake 4a 7 5 147 1 support or impairment may be placed in either Category 2 or 3. Category percentage of the Lake 5 15 11 10856 48 2 houses waters with some uses determined to be supported, but lacking TOTAL 132 100 22427 100 ¿ ve categories. suf¿cient information to assess other uses. Waters are placed in Category However, 3 if insuf¿cient or no information exists to determine if any of the uses STREAMS that number Type CATEGORY # of stream % stream miles of % miles are being met. An “insuf¿ cient data” designation may result where some segments segments streams is somewhat water quality data are available, but not enough to conclude that the use Stream 1 1170 10 4050 13 deceiving. The is supported or impaired, or where water quality data for mandatory Stream 2 920 8 2752 9 streams with Stream 3 6269 54 10366 34 parameters is absent. Stream 4a 2155 18 8592 28 limited data are typically Stream 4b 1 0 2 0 Impaired waters are placed in Categories 4 or 5. Prior to TMDL Stream 4c 32 0 28 0 small unnamed development, waters impaired by a pollutant are placed on the Section Stream 5 1142 10 5091 16 tributaries, which 11689 100 30881 100 303(d) List and in Category 5. After TMDLs are developed and 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 16 JA2770 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 144 of Filed235 07/07/16 Page 30 of 279 PageID #: 4042 approved, those waters are relocated to Category 4A and are identi¿ ed in The list and the summary results of Table 8 and Table 9 provide an Supplemental Table B of this report. Other impaired streams for which overview of the impairment status of West Virginia waters. TMDLs need not be developed are identi¿ ed in Supplemental Table D. The most common criteria violations in West Virginia streams in order of Category 5 includes 1,142 impaired stream segments, covering total stream miles are: approximately 5,091 stream miles that are impaired and need TMDLs ¼ Fecal coliform developed. This number has decreased from 6,027 miles of impaired ¼ Total iron (warmwater) streams identi¿ ed on the 2012 list. The decrease is due, in part, to the ¼ Biological impairment, as determined through application of TMDL development timeline. TMDLs always are in various stages of the West Virginia Stream Condition Index development, and with the additional sampling data generated, streams ¼ Dissolved Aluminum and stream segments may move from Categories 1, 2 or 3 to Category 5. ¼ pH Additionally, TMDLs that have not yet been approved by the EPA remain ¼ PCBs listed in Category 5. Once these TMDLs are approved, those streams ¼ Selenium Table 8 - Summary of the Causes for Impaired Lakes and Streams TYPE CAUSE SIZE (acres) and stream segments will move to Category 4a. Lake Methylmercury 9826 Lake Chlorophyll-a 2402 Table 7 contains a breakdown of use support speci¿ c to the use categories Lake PCBs 630 for state waters as set forth in the Water Quality Standards (47CSR2). Lake Phosphorus 400 Lake Sedimention/Siltation 189 Table 7 - West Virginia Use Support Summary Lake Trophic State Index 96 LAKES Lake Iron 54 Number of Size Designated Use Fully Supporting Insuffi cient Data Not Assessed Not Supporting Lakes (acres) Lake DO 4 # % Acres % # % Acres % # % Acres % # % Acres % A - Public Water 132 22427 34 26 4277 19 16 12 4735 21 71 54 3531 15 11 8 9884 44 TYPE CAUSE SIZE (miles) B1 - Warm Water Fishery 109 17006 0 0 0 0 38 35 10998 65 56 51 3110 18 15 14 2899 17 B2 - Troutwater 23 5421 0 0 0 0 13 57 5215 96 9 39 190 4 1Stream 4 16 0 Fecal/Bacteria 8069 C - Contact Recreation 132 22427 12 9 1579 7 33 25 6546 29 65 49 3300 15 22Stream 17 11003 49 Iron 7583 D - Agriculture and Wildlife 132 22427 47 36 6622 30 17 13 12464 56 67 51 3338 15 1 1 4 0 Stream Bio-Impairment 6096 E -Industrial 132 22427 47 36 6622 30 17 13 12464 56 67 51 3338 15 1 1 4 0 Total 132 22427 Stream pH 1376 Stream Aluminum 1102 STREAMS Stream PCBs 478 Number Size Designated Use of Stream Fully Supporting Insuffi cient Data Not Assessed NotStream Supporting Selenium 438 (miles) Segments Stream Dioxin 352 # % Miles % # % Miles % # % Miles % # % Miles % Stream Manganese 151 A - Public Water 11685 30828 2021 17 7384 24 932 8 2315 7 5961 51 9782 32 2769 24 11348 37 B1 - Warm Water Fishery 10587 25760 1992 10 3621 14 1175 11 3246 13 5678 54 9168 35 2642Stream 25 9725 38 CNA-Algae 117 B2 - Troutwater 1102 5121 390 35 2102 41 200 18 1040 20 275 25 594 14 237Stream 22 1384 27 DO 65 C - Contact Recreation 11689 30881 2329 20 8265 27 1018 9 2627 9 6409 55 10562 34 1933 16 9336 30 Stream Chloride 57 D - Agriculture and Wildlife 11687 30879 4199 36 16885 55 369 3 1257 4 6586 56 10950 35 533 5 1807 6 E -Industrial 11687 30879 4199 36 16865 55 369 3 1257 4 6586 56 10950 35 533Stream 5 1807 6 Low Flow Alterations 44 Total 11689 30881 Stream Beryllium 17 Stream Nitrite 14 Stream Ammonia 5 Stream Temperature, water 2.3 17 Stream LeadDDivisionivision ooff WWaterater aandn 1.5d WWasteaJA2771ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 145 of Filed235 07/07/16 Page 31 of 279 PageID #: 4043 Table 9 - Number of Miles for the Leading Causes of West Virginia Impaired Streams monitoring that indicates integrity, the DEP lacks an ability to evaluate biological integrity in lakes. With limited tools, the DEP cannot LeadLead TempTemperaturerature,e, wwataterer conclude full support of the aquatic life use in lakes. As such, many of AmmoniAmmonia the lakes that were previously in Category 1 have been reclassi¿ ed in NitritNitrite Category 2 or 3. Such reclassi¿ cation does not indicate a lowering of BerylliuBeryllium LowLow FlowFlow Altlterera onons use support, but instead demonstrates the existing inability to effectively ChlorideChloride assess aquatic life use support in lakes. DODO AlAlgagae ManganesManganese The summary tables reÀ ect “number of lake segments” rather than DioxDioxinin number of lakes. In lakes with multiple assessment locations and SeleniuSelenium clear distinction of water quality, the lake is segmented for assessment PCBsPCBs AluminumAluminum purposes. pHpH BiBio IronIron Probabilistic Data Summary Fecal/Fecal/BaBactcteriaeria The goal of the DEP’s probabilistic monitoring program is to provide 010 10000020 20000030 30000040 40000050 50000060 60000070 70000080 80000090 900000 statistically unbiased estimates of stream condition throughout a particular region (i.e., watershed, ecoregion or state) without assessing Lakes every stream mile in that region. This approach can be used to describe With the exception of listings based on ¿ sh tissue methylmercury results, various aspects of stream condition including, the proportion of stream past Integrated Reports have carried forward lake assessments from the miles with biological impairment, the proportion of stream miles with previous listing cycles due to a lack of new data or full EPA approval speci¿ c water quality criterion violations, and the characterization of numeric nutrient criteria. For the 2014 listing cycle, with full EPA of the relative importance of stressors such as embediness or acid approval of the nutrient criteria for lakes and a data set of suf¿ cient size precipitation. The probabilistic design used for and temporal spacing to meet criteria assessment requirements, the DEP this summary allows the DEP to characterize has updated lake assessments. In addition to six lakes previously listed Figure 2– West overall water quality conditions at an ecoregional for methylymercury or PCBs, seven lakes (eight lake segments) have Virginia’s (Omernik Level III) scale been added to the 303(d) List for total phosphorus and/or chlorophyll a ecoregions map in addition to providing criteria violations. One additional lake was added based on ¿ sh tissue estimates of conditions methylmercury impairment. statewide. Probabilistic assessment sites were Protocols for IR categorization of lakes into Categories 1, 2 or 3 were distributed within the three revised in the 2014 cycle. In previous cycles, use support for lakes major ecoregions in West Virginia: was based upon numeric water quality data, consistent with guidelines the Western Allegheny Plateau (70), previously described for streams. Previous reports generally placed lakes Central Appalachians (69), and Ridge and in Category 1 if data indicating attainment was available for mandatory Valley (67). Due to its small extent in West parameters and other parameters. In contrast to stream categorization Virginia, the Blue Ridge Mountain Ecoregion where aquatic life use support is conditioned upon available biological 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 18 JA2772 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 146 of Filed235 07/07/16 Page 32 of 279 PageID #: 4044 (66) was combined with Ecoregion 67 for assessments and data analysis. In West Virginia prior to 2012, the health of benthic macroinvertebrate communities had been rated using a statewide family-level multi-metric The probabilistically selected sites are assessed using three broad index developed for use in wadeable rifÀ e/run streams, the West Virginia categories of aquatic integrity indicators: biological community quality; Stream Condition Index (WVSCI). Beginning in 1998, the DEP started water quality; and habitat quality. From these, several individual identifying benthic macroinvertebrates to genus level with the intention indicators were chosen to help illustrate the condition of West Virginia’s of eventually developing a new biotic index. Development of a genus rivers and streams during the periods of interest in this report. They are level index is now complete. The new tool, known as GLIMPSS (Genus presented for statewide and the three “ecoregions” in the ¿ gure 2. Level Index of Most Probable Stream Status), which is strati¿ ed by Biological season and ecoregion, has now been peer reviewed and published and is ¼ West Virginia Stream Condition Index (WVSCI) ready for use in this summary report. However, the new index is not yet Water Quality Indicators ready for use in determining attainment of a stream’s Aquatic Life Use ¼ pH less than 6.0 standard units (AQL) for regulatory purposes. During West Virginia’s 2012 legislative ¼ Sulfate greater than 50 mg/L session, Senate Bill 562 was passed requiring the DEP to develop a new ¼ fecal coliform bacteria greater than 400 colonies/100mL assessment methodology that will be subject to legislative approval. Habitat Quality Indicators The process to develop and evaluate options for assessing stream health ¼ relative presence of sediment deposition more “holistically” is ongoing, and speci¿ cally considers the use of ¿ sh ¼ condition of riparian vegetation zones community information, along with benthic macroinvertebrate index ¼ a range of human-refuse intensity values scores, as part of the assessment methodology. GLIMPSS, similar to WVSCI and other indices of biotic integrity, summarizes scores of With the exception of the Designated Use Support Section, the data Table 10 used to create the charts presented in this report are from the last ¿ ve poor fair good very good years of available probabilistic data (2009-2013) and are described in 100% terms of ecoregions. It should be noted that these estimates of condition 90% 27.3 are descriptive of smaller wadeable streams where our probabilistic 34.2 30.3 monitoring efforts are focused. 80% 70% 56.4 Biological Community 60% 20.5 The biological communities living in West Virginia streams are exposed 25.2 31.7 50% to many stressors, including toxic contaminants, sedimentation, 20.6 nutrient enrichment, and acid precipitation. The DEP uses benthic 40% 16.6 23.9 macroinvertebrates to assess the biological condition of streams in the miles stream Percent of 30% 14.8 state. These organisms provide reliable information on water and habitat 20% quality in streams and have been used as indicators all over the world for 10.6 31.6 10% 24.0 23.2 nearly 100 years. They are extremely diverse and exhibit a wide range 9.1 of tolerances to pollutants. Further, they serve as an excellent tool for 0% Statewide Ridge and Central Western Allegheny measuring overall ecological health, especially when summarized into a Valley Appalachians Plataeu single index of biological integrity. 19 DDivisionivision ooff WWaterater aandnd WWasteaJA2773ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 147 of Filed235 07/07/16 Page 33 of 279 PageID #: 4045 various metrics into a single index value. The metrics were selected Table 11 to maximize discrimination between streams with known stressors - as indicated by elevated sulfate (> 50 mg/L) Based on 2009 - and reference streams. Reference streams have little or no human 30 disturbances. All identi¿ ed reference streams were combined and a subsequent reference condition was established based on their benthic 27.3 25 macroinvertebrate communities. Based on the probabilistic data utilized in this summary and a 20 comparison to low-end reference condition (5th percentile of all appropriate season and ecoregion reference sample GLIMPSS scores), 15 16.7 59.4 percent of wadeable stream miles are comparable to reference condition statewide with the remaining 40.6 percent scoring less than 11.9 Percent of streamPercent miles of 10 this threshold. Breaking this down by ecoregion, the Ridge and Valley ecoregion has the highest percentage of streams with healthy aquatic ecosystems, with 80.3 percent scoring above the 5th percentile threshold. 5 The Western Allegheny Plateau ecoregion is estimated to have 62 percent 2.5 of stream miles comparable to reference, which is a greater percentage 0 than estimated in the past (42.5) when based on WVSCI. The percent of Statewide Ridge and Valley Central Appalachians Western Allegheny Plateau stream miles in the Central Appalachians scoring above the GLIMPSS than in the Ridge and Valley (Ecoregion 67) or Western Allegheny threshold is estimated to be 47.8 percent which is lower than previous Plateau (Ecoregion 70). About 27.3 % of the stream miles in the Central estimates (65.3) based on WVSCI. Appalachians are inÀ uenced by mine drainage. Contrastingly, about 2.5% and 11.9 of stream miles are inÀ uenced by mine drainage in the Water Quality Indicators of Aquatic Integrity Ridge and Valley and Western Allegheny Plateau, respectively. The Watershed Assessment Branch analyzes over 20 different water quality parameters at each of the sites sampled as part of the probabilistic Bacterial Contamination monitoring program. Below are the results of three of these parameters. Many West Virginia streams contain elevated levels of fecal coliform bacteria. Contributors to the problem include leaking or overÀ owing Sulfate sewage collection systems, illegal homeowner sewage discharges Streams receiving mine drainage may be impaired by low pH and/ by straight pipes or failing septic systems, and runoff from urban or or elevated concentrations of metals, including iron, aluminum, and residential areas and agricultural lands. Based on probabilistic data, manganese. Other dissolved ions such as sulfate may also be present in 13.6% of stream miles in the state have fecal coliform bacteria levels concentrations above background levels. A sulfate concentration greater that exceed the criterion of 400 colonies/100mL (Table 12). In general, than 50 mg/L was used to identify probabilistic sites inÀ uenced by mine watersheds in the more developed regions of the state had a greater drainage. Following this guideline, approximately 16.7 % of the stream proportion of stream miles exceeding the criterion. Among ecoregions, miles statewide are inÀ uenced by mine drainage (Table 11). Observed the proportion of stream miles violating the criterion was highest in the on an ecoregional basis, mine drainage inÀ uences a greater proportion Western Allegheny Plateau with 21.3 % of stream miles exceeding the of stream miles in the coal rich Central Appalachians (Ecoregion 69) criterion. The proportions of stream miles exceeding the criterion were 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 20 JA2774 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 148 of Filed235 07/07/16 Page 34 of 279 PageID #: 4046 Table 12 Percent of stream miles with fecal coliform bacteria > 400 colonies/100 ml Table 13 Percent of stream miles with pH < 6 Based on 2009 - Based on 2009 - 25 30 20 21.3 25 24.0 20 15 13.6 15 10 12.0 9.0 Percent of streamPercent miles of 10 8.3 Percent of stream miles stream Percent of 5 7.8 5 0.0 0 0 Statewide Ridge and Valley Central Appalachians Western Allegheny Plateau Statewide Ridge and Valley Central Appalachians Western Allegheny Plateau somewhat lower in the Central Appalachians at 9.0% and Ridge and deposition with geologic materials such as limestone and shale providing Valley Ecoregions at 8.3%. It should be noted that DEP’s probabilistic more buffering capacity to neutralize acid precipitation. Nonetheless, monitoring is performed at baseÀ ow conditions. Because samples are not probabilistic data indicates that approximately 7.8% of the stream miles collected during storm runoff events, bacteria levels that may increase in this ecoregion are impacted by acidic conditions. Although present, under these higher À ow conditions are not represented in the results. the extent of stream miles impacted by acidic waters within the Western Allegheny Plateau Ecoregion is near 0.0%. In fact, their proportion to Acidity the overall size of the total population of stream miles is insigni¿ cant Aquatic life communities in the headwater sections of many West enough to result in no acidic stream miles based on this cycle’s Virginia streams continue to be impacted by low pH, and thus, acidic probabilistic analysis. Again, this ecoregion has well buffered soils that water quality. The impairment is most prevalent in watersheds with soils limit the impacts of acid precipitation. Furthermore, where they do exist of low buffering capacity and most often caused by acid precipitation in this ecoregion, acidic waters are more likely the result of acid mine and less often (but potentially more severely) by acid mine drainage. An drainage than acid precipitation. evaluation of probabilistic data indicates that approximately 12.0% of the stream miles in the state have pH values below 6.0 (Table 13). Most Habitat Quality of the stream miles identi¿ ed as impacted by acidic waters are in the It is nearly impossible to accurately interpret the biological health of Central Appalachians Ecoregion, representing 24.0% of the stream miles streams without measuring various aspects of habitat quality. During the within this area. Speci¿ cally, the Forested Hills and Mountains section course of probabilistic sampling, DEP personnel collected data on many of this ecoregion are largely susceptible to acid precipitation impacts due features of both riparian and instream habitat known to be important to to infertile soils and resistant sandstones of the Pottsville group. The the biological communities of streams. Habitat parameters from EPA’s Ridge and Valley Ecoregion is less susceptible to the impacts of acid Rapid Bioassessment Protocol (RBP) were measured. These include 21 DDivisionivision ooff WWaterater aandnd WWasteaJA2775ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 149 of Filed235 07/07/16 Page 35 of 279 PageID #: 4047 measures of the amount of sediment and embeddedness in the stream in the Western Allegheny Plateau. The presence of more widespread channel as well as measures of the vegetation along the bank and riparian development and factors such as higher rates of soil erosion in this zone in the stream corridor. Speci¿ cally, ten parameters are scored ecoregion are potential causes for only 2.0 of its stream miles being rated (0-20) based on their quality and then combined to assess the overall as good in overall habitat quality. Additionally, the proportion of stream physical habitat condition of the site. The overall scores (Total RBP miles with poor habitat quality 28.1% is substantially higher in this Habitat – max score 200 pts.) were categorized as good, fair, or poor ecoregion. (Table 14). Based on probabilistic data, about 18.2% of stream miles statewide have good habitat quality (total RBP score of 160 or greater), It is important to consider that approximately 81.8% of stream miles in 67.5% of stream miles have fair habitat quality (110–159), and 14.3% of the state are in the fair or poor habitat categories. This indicates that stream miles have poor habitat quality (< 110). While these categorical most of the state’s stream miles have at least some degree of habitat thresholds are somewhat arbitrary, they do provide a good comparison of degradation. habitat conditions between two or more geographic areas. Table 14 Stream Habitat Conditions -Total RBP Habitat Scoring Categories Habitat Indicators of Aquatic Integrity Based on 2009 - 2013 probabilistic monitoring Poor Fair Good Although the DEP may gain insight into overall habitat conditions by 100% 2.0 combining the individual measures, it is useful to examine speci¿ c 90% 18.2 24.6 habitat characteristics. 80% 35.9 Embeddedness 70% 69.8 Embeddedness is one of the most important problems facing West 60% Virginia streams. The chart titled “Embeddedness” shows the extent to 50% 67.5 Embeddedness Table 15 poor fair good excellent 40% 68.7 100% 2.9 60.8 30% 90% Percent of stream miles Percent 23.2 28.7 20% 80% 48.1 28.1 10% 14.3 70% 6.7 0% 3.3 60.7 Statewide Ridge and Valley Central Appalachians Western Allegheny 60% Plateau 50% 47.0 The Ridge and Valley had the highest proportion of stream miles rated in 40% 50.7 the good category for overall habitat quality at 35.9%. Additionally, this 40.5 ecoregion had the least number of stream miles rated as poor for overall Stream Miles of Percentage 30% habitat quality at only 3.3%. The Central Appalachians Ecoregions 20% 33.4 17.6 ranked second in the state for the proportion of stream miles rated as 21.8 10% good for overall habitat quality with a value of 24.6. 9.9 6.7 0% 4.3 1.5 3.0 Statewide Ridge and Valley Central Appalachians Western Allegheny In comparison to the other ecoregions, habitat quality scores are lower Plateau 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 22 JA2776 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 150 of Filed235 07/07/16 Page 36 of 279 PageID #: 4048 which rocks (gravel, cobble, and boulders) are covered or sunken into into the stream at high À ows). Ecoregion 67, the Ridge and Valley the silt, sand, or mud of the stream bottom. Generally, as rocks become Ecoregion, has the highest percentage of “clean” streams, with almost embedded, the surface area available to macroinvertebrates and ¿ sh 60 percent of stream miles in the “very good” category. The Central for shelter, spawning, and egg incubation is decreased. The Western Appalachians (69) and Western Allegheny Plateau (Ecoregion 70) have Allegheny Plateau (Ecoregion 70) had the highest percentage of streams signi¿ cantly lower percentages of “clean” streams with 50.4% and with poor or fair ratings (36.4 percent) for embeddedness. This is likely 24.0%, respectively. because this region has slower, low-gradient streams, has more erodible Table 17 Aesthetics / Trash Index soils, and more land-disturbing activities than in other areas. The poor fair good excellent Central Appalachians (Ecoregion 69) and Ridge and Valley (67) streams 100% 90% fared better with 24.3% and 11.4% combined fair and poor ratings, 24.0 80% 42.4 50.4 respectively. 70% 58.6 60% Riparian Vegetation Zone 50% 51.4 Ecoregion 67, the Ridge and Valley, had the highest percentage of wide 40% 33.4 20.1 undisturbed riparian zones at 53.3%. This indicator rates streamside 30% 29.2 zones on the amount of undisturbed vegetation present, which is 20% 18.8 22.2 18.9 desirable for providing shade, creating a more stable stream bank and 10% 11.1 7.2 5.7 minimizing the amount of sediment, excess nutrients and other pollutants 0% 5.4 1.1 entering the stream. In contrast, the Central Appalachians (Ecoregion Statewide Ridge and Valley Central Western Allegheny 69) and Western Allegheny Plateau (Ecoregion 70), have a much smaller Appalachians Plateau percentage of riparian zone vegetation rated as excellent 39.4% and Interstate Water Coordination 11.8%, respectively. PCB monitoring and TMDL development with Virginia Table 16 Riparian Zone Vegetation Index DEP has been working with the Virginia Department of Environmental poor fair good excellent Quality (VADEQ) to assess Polychlorinated Biphenyls (PCBs) 100% 11.8 impairment along the Virginia section of the Bluestone River. The 80% 32.2 39.4 product of this cooperative effort will be a TMDL for the Bluestone 53.3 33.5 River and tributaries with loadings and allocated reductions for sources 60% 33.9 in both Virginia and West Virginia. West Virginia DEP, Virginia DEQ 40% 37.7 32.6 and EPA Region III have been cooperating in an effort to locate and 26.7 20% 20.5 reduce sources of PCBs to the Bluestone River. As part of this effort, 11.7 14.4 remediation of the now defunct Lyn Electric Site in Blue¿ eld, W.Va. has 13.4 22.1 0% 8.3 8.5 been completed. Efforts included leveling and removal of the electric Statewide Ridge and Valley Central Western motor remanufacturing buildings on the site. Also, contaminated water Appalachians Allegheny Plateau and debris were removed from the site and clean material used to back¿ ll Trash/Aesthetic Index the open basement areas of the property. Within the watershed additional The “Trash/Aesthetic Index” is a measure of the amount of human refuse monitoring and source evaluation is on-going to determine what steps, if that is in and around the stream (including that which could be washed any, need to be taken in the future. 23 DDivisionivision ooff WWaterater aandnd WWasteaJA2777ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 151 of Filed235 07/07/16 Page 37 of 279 PageID #: 4049 Ohio River Valley Water Sanitation Commission – ORSANCO West Virginia to nutrient and sediment load reductions. In November As with previous reports, the DEP’s 2014 Integrated Report includes 2005, West Virginia proposed pollutant reduction plans in the West assessments based on data provided by ORSANCO. Throughout the Virginia Potomac Tributary Strategy. In December 2010, EPA ¿ nalized development of ORSANCO’s 2014 Biennial Assessment, the DEP has TMDLs for the Chesapeake Bay and other impaired tidal waters in been involved with ORSANCO’s efforts to standardize assessments Virginia and Maryland. In response to the TMDLs, West Virginia among the compact states. The DEP’s personnel continue to participate and the other Bay jurisdictions developed Watershed Implementation in several standing committees, along with representatives from other Plans (WIPs). The West Virginia WIP identi¿ es actions and controls compact states, charged with helping direct ORSANCO’s water quality that the State will pursue to implement the TMDLs, and West Virginia and biological monitoring efforts. will accomplish its TMDL responsibilities if the WIP is successfully Figure 3- Impairments of the West Virginia section of the Ohio River executed. Many DEP programs are actively participating in this effort. The West Virginia WIP and supporting documents may be viewed at: http://www.wvca.us/bay/documents.cfm Upper Ohio North Upper Ohio South Middle Ohio North Middle Ohio South Lower Ohio Hydrologic Group A Hydrologic Group E Hydrologic Group C Hydrologic Group C Hydrologic Group E Interstate Commission on Potomac River Basin Bacteria MP (40 – 124.3) + (127.0 - 131.3) + (136.1 - 141.5) + (146.9 – 157.7) + (163.1 – 184.7) + (188.4 – 193.3) + (203.2 – 303.6) + (306.4 – 317.3) The Commission is a non-regulatory agency of basin states (Maryland, Pennsylvania, Virginia and West Virginia), Washington, D.C. and the federal government. The Commission promotes watershed-wide solutions to the pollution and water resources challenges facing the Dioxin MP 40 – 238 basin and its more than 6.11 million residents. Examples of current commission efforts include the Chesapeake Bay Program involvement, Total Iron MP (40 – 54.4) + (161.8 – 279.2) stream biological assessments, support of selected stream gages, the Potomac Groundwater Assessment, Potomac Basin Drinking Water Source Protection Partnership coordination and Potomac Watershed MP 40 MP 71.7 MP 113.8 MP 172.2 MP 265.7 MP 317.3 Toxic Spill Model support. In addition, the Commission’s public Chesapeake Bay outreach program supports and helps coordinate an annual watershed- The Chesapeake Bay is impaired by nutrients and sediment from multiple wide clean-up effort and produces and distributes the newsletter Potomac sources originating locally and in upstream states. This biologically Basin Reporter to 20,000 subscribers. The commissioners are appointed diverse waterbody is an important economic and recreational resource. by their respective jurisdictions and provide policy guidance and oversight for a skilled staff of scientists and educators. The need to restore this waterbody is a high priority for many agencies, organizations and the public in general. Approximately ten percent of Ohio River Basin Water Resources Association West Virginia’s stream miles drain into the Potomac River and on into the The Ohio River Basin Water Resources Association was dissolved in Bay. In addition, portions of the James River Watershed in West Virginia 2010. A former Association member now resides on ORSANCO’s Water contribute À ow to the Bay. Resources Committee in a continuing effort to represent the issues of concern to the Association. In June 2002, Governor Bob Wise signed the Chesapeake Bay Program Water Quality Initiative Memorandum of Understanding, committing 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 24 JA2778 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 152 of Filed235 07/07/16 Page 38 of 279 PageID #: 4050 Total Maximum Daily Load (TMDL) through the NPDES permitting process and efforts toward limiting nonpoint source loading. Throughout the TMDL development process, Development Process there are numerous opportunities for public participation and input. From 1997 until 2003, EPA Region III developed West Virginia TMDLs under the settlement of a 1995 lawsuit, Ohio Valley Environmental Since its inception, the DEP’s TMDL section pursued timely Coalition, Inc., West Virginia Highlands Conservancy, et. al. v. Browner, development of TMDLs for the waters and impairments identi¿ ed in et. al. The lawsuit resulted in a consent decree between the plaintiffs and the consent decree between the EPA and the Ohio Valley Environmental the EPA that speci¿ es TMDL development requirements and compliance Coalition, et. al. The TMDLs developed and approved in the Dunkard dates. While the EPA was working on developing TMDLs, the DEP Creek, Upper Ohio River South, Youghiogheny, and the Camp Creek concentrated on building its own TMDL program. With the help of the portion of the Twelvepole Creek watersheds in 2009 ful¿ lled the last of TMDL stakeholder committee, the agency secured funding from the state EPA’s commitments under the consent decree. legislature and created the TMDL section within the Division of Water and Waste Management. The 303(d) list identi¿ es and prioritizes the waters and impairments for which future TMDLs will be developed by specifying the year in The TMDL section is committed to implementing a TMDL process the “Projected TMDL Year” column. The impaired waters intended that reÀ ects the requirements of TMDL regulations, provides for for TMDL development in 2015, 2016 and 2017 are known and the achievement of water quality standards, and ensures that ample identi¿ ed. For other waters and impairments, where the timing of TMDL stakeholder participation is achieved in the development and development is less certain, the “Projected TMDL Year” is identi¿ ed as implementation of TMDLs. The DWWM’s approach to TMDL the latest year where an opportunity exists per the DEP’s plans to develop development allows 48 months to develop a TMDL from start to TMDLs in concert with the Watershed Management Framework. ¿ nish. This approach enables the agency to carry out an extensive data generation and gathering effort to produce scienti¿ cally defensible At any point in time, the DEP personnel are working on TMDLs in TMDLs, and allows ample time for modeling, report drafting and frequent public participation opportunities. Table 18 - West Virginia TMDL Development Progress Hydrologic Group Watersheds Progress The DEP’s TMDLs are developed according to the Watershed South Branch of Potomac Final Drafts submitted to U.S. A3 Management Framework cycle. The framework divides the state into Upper Kanawha EPA for approval-January 2015 32 major watersheds and operates on a ¿ ve year, ¿ ve-step process. The Upper Ohio North watersheds are divided into ¿ ve hydrologic groups (A - E). Each group B3 Tygart Valley Development on-going of watersheds is assessed once every ¿ ve years. A map depicting the Gauley (Meadow River) Sampling completed. 32 watersheds and hydrologic groupings is provided as an attachment C3 Potomac Direct Drains - (Rockymarsh Run and Warm TMDL development on-going to this document before the List Key. The TMDL process begins in the Springs Run) ¿ rst year of the cycle with pre-TMDL sampling and public meetings in Monongahela (Monongahela Pre-TMDL sampling on-going the affected watersheds. The data is compiled and TMDL development D3 main-stem) until June 2015. begins in year two of the cycle. In the third year, TMDL development Little Kanawha (Hughes River) continues and the TMDL is drafted. The TMDL is ¿ nalized in the fourth Intiial public meetings E3 year. In the ¿ fth year of the cycle, TMDL implementation is initiated Upper Guyandotte scheduled 25 DDivisionivision ooff WWaterater aandnd WWasteaJA2779ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 153 of Filed235 07/07/16 Page 39 of 279 PageID #: 4051 each of the ¿ ve hydrologic groups (A-E). Each set of TMDLs moves Management Act, Water Pollution Control Act, Groundwater Protection through several stages of development prior to ¿ nalization and the EPA’s Act, Hazardous Waste Management Act, Underground Storage Tank Act, approval. Table 18 shows the state’s TMDL development progress. and Dam Safety Act by providing assistance, inspecting regulated sites, and enforcing conditions required by these acts. The DEP’s Web site contains all approved TMDL documents and the draft TMDL documents currently out for public comment. These National Pollution Discharge Elimination System (NPDES) Program documents can be found at http://www.dep.wv.gov/WWE/watershed/ The DWWM’s primary mechanism for controlling point sources is the TMDL/Pages/default.aspx. West Virginia NPDES permitting program. This program, administered by the Permitting Branch, regulates activities and facilities involved in the installation, construction, modi¿ cation, and operation and Water Pollution Control Programs maintenance of wastewater treatment systems as well as their discharges. Division of Water and Waste Management Individual and general permits are used to implement the program. Most The Division of Water and Waste Management’s mission is to preserve, permits include efÀ uent limits and requirements for facility operation protect, and enhance West Virginia’s watersheds for the bene¿ t and and maintenance, discharge monitoring and reporting. Other permits safety of all its citizens through implementation of programs controlling require the installation and implementation of best management practices hazardous waste, solid waste and surface and groundwater pollution, in lieu of efÀ uent limitations and discharge monitoring requirements. from any source. The Permitting Branch also administers a pretreatment program in conjunction with the NPDES program, which outlines procedures for The DWWM strives to meet its mission through implementation of regulating proposed industrial wastewater connections to publicly programs controlling surface and groundwater pollution caused by owned treatment works. The program imposes discharge limitations for industrial and municipal discharges as well as oversight of construction, indirect discharges and requires the installation of pretreatment facilities operation and closure of hazardous and solid waste and underground storage tank sites. In addition, the division West Virginia Department of Environmental Protection - Division of Water and Waste Management - Report Date 11/19/2014 works to protect, restore and enhance the NPDES PERMITTING - PERMIT ACTION REPORT (7/1/2011 - 6/30/2013) state’s watersheds through comprehensive Applications Applications Permits Permits Withdrawn Applications Pending as of Average Average Total Recieved Denied this Registrations Registrations and Voided 6/30/2013 DEP Time watershed assessments, groundwater This Period Period and and This Time To to Issue Permits Modi¿ cations Modi¿ cations Period Issue This monitoring, wetlands preservation, Issued This Issued Greater Less Less Total Greater Permits Period (In Days) Period Year-to-Date Than Than Than (DEP Than This inspection and enforcement of hazardous for Current 180 180 > Equal days) 180 Period (In and solid waste disposal and proper Fiscal 2015 DEP 90 DEP to 90 total Days) days days DEP days operation of underground storage tanks. days INDIVIDUAL PERMITS 247 0 184 22 24 30 14 48 92 42 164 177 GENERAL PERMITS Environmental Enforcement (EE) Home Aeration Units 517 2 558 171 8 9 6 127 142 119 39 65 Sewage General 104 0 501 2 16 1 1 15 17 16 177 223 is a branch of the Division of Water Storm Water Construction 1101 0 996 164 42 0 2 127 129 5 36 40 and Waste Management charged with All Others 610 2 618 206 39 0 1 35 36 19 121 151 assuring compliance with many of the MODIFICATION PERMITS 518 1 527 93 51 26 17 51 94 39 84 94 TRANSFER PERMITS 455 0 425 25 2 16 9 43 68 50 102 107 state pollution control regulations. EE TOTAL - PERMITS 3552 5 3809 683 182 82 50 446 578 290 promotes compliance with the Solid Waste NOTE: The permits used to calculate for the “Average DEP Time” column are those that were submitted after June 30, 1999, when ERIS was deployed for the Division of Water and Waste Management 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 26 JA2780 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 154 of Filed235 07/07/16 Page 40 of 279 PageID #: 4052 where necessary to prevent interference with POTW operations and To more effectively respond to TMDL implementation needs, the sludge disposal practices and to ensure that the pollutants contributed by Nonpoint Source Management Plan was updated in 2000 to incorporate industrial users do not pass through the POTW and violate water quality watershed management principles, including integration of TMDL and standards. The National Combined Sewer OverÀ ow (CSO) Policy is Watershed Management Framework scheduling. In addition to several implemented as a component of the NPDES Permits for POTWs with plans currently under development, the Nonpoint Source Program has CSOs. The DEP has issued two Concentrated Animal Feeding Operation 27 watershed based plans in various stages of implementation that (CAFO) permits with a third application currently under evaluation. address a variety of nonpoint sources of pollution. These plans are Activities administered by the Permitting Branch include the regulation developed in cooperation with the stakeholders, including federal, state of industrial solid waste land¿ lls and the land application of sewage and local government agencies, within the watershed. As a result of sludge, and developing wasteload allocations for new or expanding these plans, numerous nonpoint source remediation projects for acid sewage treatment facilities. Below is a list of permit actions for the time mine drainage, agriculture, streambank erosion, and dirt roads have period beginning in July 2011 and ending in June 2013. been undertaken. The goal of the watershed based plans is to restore the impaired streams to meet water quality standards. The successes to date In addition to permitting, compliance assessment and enforcement emphasize the need to focus more resources on voluntary installation of activities are coordinated between the Permitting Branch and best management practices in identi¿ ed priority watersheds where local Environmental Enforcement. Noncompliance is initially addressed stakeholders are interested in making a difference. by administrative actions to compel compliance. These may include warning letters, notices to comply, enforcement orders, or referrals for Groundwater Program civil action. Under the Groundwater Protection Act, West Virginia Code Chapter 22, Article 12, Section 6.a.3, DEP’s Groundwater Program is responsible Nonpoint Source Control Program for compiling and editing information for a biennial report to the The Nonpoint Source Control Program focuses on restoration and Legislature on the status of the state’s groundwater and groundwater protection of streams from nonpoint source pollution. The program management program. The DEP, the West Virginia Department of assesses nonpoint source impacts, then develops and implements Agriculture and the West Virginia Department of Health and Human watershed based plans and projects designed to reduce pollutant loads Resources all have groundwater regulatory responsibility and contribute from agricultural, silviculture, resource extraction, urban runoff, to the report. These state boards and six standing committees currently construction activities, and failing septic systems. Program initiatives share the responsibility of developing and implementing rules, are based upon education, technical assistance, ¿ nancial incentives, policies and procedures for the Ground Water Protection Act (1991). demonstration projects, and enforcement, as necessary. The division’s The Environmental Quality Board, the Groundwater Coordinating Nonpoint Source Program supports overall administration and Committee, the Groundwater Protection Act Committee, the coordination of the nonpoint source activities through these participating Groundwater Monitoring Well Drillers Advisory Board, the Well Head state agencies: the West Virginia Conservation Agency, the Of¿ ce of Oil Protection Committee, and the Nonpoint Source Coordinating Committee and Gas, and the Division of Health and Human Resources. Each year, are the standing committees. The report provides a concise, thorough speci¿ c activities are funded under the Nonpoint Source Program. overview of those programs that are charged with the responsibility of Many of the streams being listed on the state’s list of impaired waters are protecting and ensuring the continued viability of groundwater resources affected by nonpoint sources. The majority of the Total Maximum Daily in West Virginia. The current biennial report to the Legislature covers Loads being developed involve nonpoint source water quality impacts. the period from July 1, 2011 through June 30, 2013. Copies of the 27 DDivisionivision ooff WWaterater aandnd WWasteaJA2781ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 155 of Filed235 07/07/16 Page 41 of 279 PageID #: 4053 report “Groundwater Programs and Activities: Biennial Report to the Virginia annual report. West Virginia 2014 Legislature” may be obtained by contacting the Groundwater Program at the Division of Water and Waste Management, Division of Mining and Reclamation 601 57th St., Charleston, WV 25304 or by calling (304) 926-0495. The The mission of the Division of Mining and Reclamation (DMR) is to report also may be reviewed at http://www.dep.wv.gov/WWE/Programs/ regulate the mining industry in accordance with federal and state law. gw/Documents/2014/FinalReport14.pdf Activities include issuing both National Pollutant Discharge Elimination System and Surface Mining Control and Reclamation Act permits for The Ambient Groundwater Quality Monitoring Network was established mineral extraction sites and related facilities, inspecting facilities for by the DWWM in cooperation with the USGS in 1992 and is an compliance, monitoring water quality, tracking ownership and control, ongoing project. The network provides critical data needed for proper and issuing and assessing violations. The DMR is responsible for the management of West Virginia’s groundwater resources. The major computer databases that track their regulatory activities - Environmental objective of this USGS study is to assess the ambient groundwater Resources Information System (ERIS) and Applicant Violator System quality of major systems (geologic units) within West Virginia and to (AVS, the federal OSM database). The Permitting Unit is responsible for characterize the individual systems. Characterization of the quality of reviewing permit applications for surface and underground coal mines, water from the major systems helps to: preparation plants, coal loading facilities, haulage ways, and coal-related ¼ Determine which water quality constituents are problems dams. This unit also reviews permit applications for non-coal quarry within the state operations (sand, gravel, limestone, etc). Permit review teams staffed ¼ Determine which systems have potential water quality with geologists, hydrologists, engineers and others are located in each problems regional of¿ ce throughout the state and in the headquarters of¿ ce. The ¼ Assess the severity of water quality problems in respective DMR’s Inspection and Enforcement unit is responsible for inspecting all systems coal mining and quarry operations in the state. It enforces compliance ¼ Prioritize these concerns through regular inspections and Notices of Violation, and ensures site reclamation through ¿ nal release of the operation. This unit is also Only by documenting present ambient groundwater quality of the responsible for civil penalty assessments, show cause proceedings, state’s major systems can regulatory agencies assess whether water bond forfeiture and collection. The DMR’s Program Development unit quality degradation has occurred in certain areas and whether potential is responsible for implementing a proactive approach to policy issues, degradation is a result of natural processes or those associated with legislation and training. This unit is designed to keep the Division human activity. USGS is currently working with the DEP on a staff current with technological advances and to provide clear direction 5-year groundwater assessment framework. In year 1, they collect through development of cogent policy and guidance to meet legal and groundwater data from a network of 27 sentinel wells to obtain current regulatory requirements. This unit provides regulatory interpretation status of groundwater quality and track changes over time. In years 2 and support to ¿ eld of¿ ces, develops and updates handbooks and forms, through 5, USGS will conduct a variety of topical studies. The most drafts legislation and initiates regulation changes. Other responsibilities recent topical study provides a baseline of current surface water and of this unit include Small Operators Assistance Program, public relations, groundwater quality in the Monongahela River Basin related to shale including responses to Freedom of Information Act requests, special gas development. All associated groundwater quality data for each projects, employee training and research of laws, regulations and policy. well sampled and summaries of groundwater quality for each respective watershed are published in the USGS Water Resources Data for West 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 28 JA2782 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 156 of Filed235 07/07/16 Page 42 of 279 PageID #: 4054 Cost Benefi t Analysis These programs are described below. A true cost/bene¿ t analysis on the economic and social costs and bene¿ ts of water pollution control is a dif¿ cult and time consuming task. Low Interest Loan Program Particularly, the evaluation of industrial facilities would be a monumental A low interest loan program for construction of municipal wastewater task considering the various types of industry (mining, chemical, power treatment works is available for municipalities and public service districts generation, etc), each having a very different process of pollution control. to build, upgrade, or expand treatment facilities and collection systems. However, the information contained in the following paragraphs provides Conventional loans with a repayment period of 20 years are available an idea of the amount of money currently expended to construct and with an interest rate and annual administrative fee not exceeding 3% for upgrade both the municipal facilities within the state as well as programs certain communities. Loans with repayment periods from 21 to 40 years available to homeowners wanting to correct failing onsite sewage are available for disadvantaged communities where ¿ nancial affordability systems. is an issue. The interest rate and annual administration fee on these loans do not exceed 1/2%. From July 2011 through June 2013, 30 wastewater Funding for Water Quality Improvements treatment facility loans totaling $131,052,333 were funded. The DEP is responsible for administering a combination of state and federal funds expended for projects to improve water quality in state Agriculture Water Quality Loan Program streams. The following narrative provides an overview of the programs The Agriculture Water Quality Loan Program is a partnership with the within the DEP’s Division of Water and Waste Management that provide West Virginia Conservation Agency developed to address pollution funding for water quality improvements and a summary of the funds from nonpoint sources using Best Management Practices approved by dispersed between July 2011 and June 2013 to improve water quality. the U.S. Environmental Protection Agency. CWSRF money is loaned to participating banks so they can offer below market rate low interest Clean Water State Revolving Fund Program loans to qualifying applicants. For more information, contact your local Clean Water State Revolving Fund (CWSRF) program is a funding Conservation District of¿ ce, http://www.wvca.us/directory/cdo.cfm. program administered by the State Revolving Fund Branch to address From July 2011 through June 2013, 19 nonpoint source agriculture BMP water quality problems through wastewater facility construction, loans totaling $865,576 were funded. upgrades, or expansions. The branch is charged with general oversight, ¿ scal management and technical and administrative compliance Onsite Systems Loan Program review of local governmental entities that receive funds and provides In cooperation with the West Virginia Housing Development Fund and information and guidance on what administrative actions are needed Safe Housing and Economic Development of¿ ce (Welch, WV) a low to process a loan through the program. When a community has been interest loan program has been established to address onsite sewage recommended by the West Virginia Infrastructure and Jobs Development disposal problems. Called the “Onsite Systems Loan Program,” loans Council to seek CWSRF program funding for ¿ nancial assistance, the up to $10,000 are available to replace malfunctioning septic systems and community is contacted by a ¿ nancial manager and project engineer. to install new onsite sewage systems for homes that have direct sewage A meeting may be scheduled to advise the community leaders about discharges to ditches and streams. Centralized treatment for these homes the overall program requirements and speci¿ cally what they should do will not be available in the next ¿ ve years. For the current reporting next to obtain a CWSRF loan. There are federal, state, and program period of June 2011 through June 2013, a total of $350,000 pass through requirements that must be met prior to scheduling a loan closing. The was provided to the two agencies. CWSRF currently has three ¿ nancial assistance programs available. 29 DDivisionivision ooff WWaterater aandnd WWasteaJA2783ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 157 of Filed235 07/07/16 Page 43 of 279 PageID #: 4055 In conclusion, although funding for maintenance and improvement of continue annual assessments of algae growth in the segment upstream of water quality is often a controversial issue, the DEP recognizes that the mouth of Howards Creek. Monitoring plans are described in Table millions of dollars are expended annually by businesses, municipalities, 2 of the Greenbrier River Restoration Plan. The existing WV/NPDES private and public entities (including state and federal agencies) to permits for larger contributing point sources also contain efÀ uent nutrient improve and maintain water quality in West Virginia. These expenditures monitoring requirements. If new impairments are determined, then all address pollutants from various media including solid and hazardous available information will be evaluated to determine the most prudent waste, air and water. course of action. If point source phosphorus control is found to be the most signi¿ cant necessary action, then an approach similar to that being Public Participation and Responsiveness implemented in the Plan will be pursued. Summary The draft Section 303(d) List was advertised for public comment on One commenter stated that the WVDEP must use genus level benthic June 12, 2014. Legal notices of the availability of the draft document macroinvertebrate data to assess compliance with narrative water and request for public comments were placed in newspapers statewide. quality criteria, citing 2010 and 2012 EPA 303(d) list review and The draft document was promoted via news release, e-mail and the approval documents in which the EPA articulated expectations that a Internet. The public comment period extended from June 12, 2014 to genus level assessment would be performed in the subsequent listing July 11, 2014. At the conclusion of the public comment period, the DEP cycles. The commenter also stated that the WVDEP has a duty under considered all comments and made adjustments to the list as appropriate. federal law to assemble and evaluate all existing and readily available Public comments were received from the Greenbrier River Watershed data regardless of any confl icting or confounding state law and that Association, John M. Wood and Petra B. Wood, and Appalachian existing data and the GLIMPSS index allow incorporation of a genus- Mountain Advocates (on behalf of Ohio Valley Environmental Coalition, level macroinvertebrate assessment into the 2014 Section 303(d) list. West Virginia Rivers Coalition, West Virginia Highlands Conservancy The DEP interprets SB 562 as a mandate to secure prior Legislative and Sierra Club). Comments have been compiled and responded to approval of a new assessment methodology under which the DEP will in this summary. The DEP appreciates the efforts commenters have make impairment decisions pursuant to the narrative criterion at 47 CSR put forth to improve West Virginia’s listing process. Comments and 2-3.2.i. The DEP was not able to accommodate the EPA’s expectations comment summaries are bold and italicized. Agency responses appear in for a genus level benthic macroinvertebrate assessment in the 2014 plain text. Section 303(d) list because the GLIMPSS index has not been considered by the West Virginia Legislature and the use of a new index with One commenter expressed support for the TMDL alternative approach impairment thresholds independently developed by the DEP would be that is being implemented to address the algae impairment of the inconsistent with the Legislative mandate. Greenbrier River as described in the Greenbrier River Restoration Plan. The commenter requested continued algae assessment in the less The DEP regrets the delays that it has experienced but intends to present problematic segments of the River upstream of the impaired segment a methodology to the 2016 Legislature. The proposed methodology and suggested that a similar point source monitoring and phosphorus will include a benthic macroinvertebrate component based upon the best reduction scheme be implemented for contributing wastewater available science that when combined with the ¿ sh component will best treatment plants if additional segments are determined to be impaired. identify biological integrity impairments. The supportive comment is noted and appreciated. The DEP will 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 30 JA2784 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 158 of Filed235 07/07/16 Page 44 of 279 PageID #: 4056 One commenter stated that the WVDEP’s duty to assemble and The comment is generally accurate, but because of the Senate Bill 562 evaluate readily available data extends to the selenium and benthic mandate to present new methodologies for interpretation of 47 CSR macroinvertebrate stream data required to be collected and reported 2-3.2.i. to the Legislature, the DEP did not pursue WVSCI recalculation. in WV/NPDES permits. Compilations of instream selenium and biological data were provided with a recommendation that they be One commenter stated that the WVDEP has a duty under federal considered. The commenter incorrectly stated that the selenium data law to prioritize TMDL development for listed waters and has failed was not considered in the preparation of the draft 303(d) list, citing the to perform this duty for biologically impaired streams for which a lack of a selenium listing for Little Elk Creek (WVKC-39). specifi c projected TMDL year is not provided. The commenter also In the preparation of the draft Section 303(d) list, the DEP evaluated stated that the WVDEP’s intention to address such impairments “as stream selenium data reported under WV/NPDES mining permits for the soon as practicable after accomplishing SB 562 requirements” is not period July 1, 2008 thru June 30, 2013. After receipt of the comment, suffi cient to fulfi ll its priority ranking duty and that the responsibilities available selenium information for Little Elk Creek was reevaluated. No to prioritize and develop TMDLs are not altered by SB 562 . monitored location in Little Elk Creek exhibited selenium exceedances The DEP reconsidered the “TBD” placeholder used in the draft list. The that indicate impairment under 303(d) listing protocols. Also in response ¿ nal draft list now includes speci¿ c TMDL years for all impairments. to the comment, the DEP reassembled and reevaluated the entire dataset To accomplish this, the DEP considered available resources and of self-reported selenium data from permittees. The reevaluation resulted balanced the TMDL development needs associated with the legacy in two additional selenium impairment listings. biological impairments against those for other impairments. Water quality monitoring and source data needs were also considered. The The DEP did not evaluate biological data reported under WV/NPDES new prioritization schedules TMDL development for the previous mining permits when it prepared the draft list. The additional biological “TBD” biological impairments at the next practical opportunity afforded data was assembled and evaluated in response to the comment. by the Watershed Management Framework. The DEP will consider Consideration of this data resulted in 84 additional biological impairment special future projects that are not synchronized with the Framework to listings, nine impaired length adjustments and one delisting. accelerate TMDL development for long duration listings if resources and data allow. One commenter stated the DEP failed to explain its delisting methodology and that one marginally passing biological score is One commenter requested clarifi cation of the surrogate label used insuffi cient evidence to delist biologically impaired streams. in Tables B and B-1 related to biological impairments resolved by The DEP will continue to base biological listing and delisting decisions implementation of approved pollutant-specifi c TMDLs and why this on the most recent biological score. In the 2014 Draft 303(d) list, label was used in the Monongahela and West Fork River watersheds prior biological impairments were delisted if new, comparable data and not elsewhere. demonstrates a WVSCI score greater than 68. It should be noted that Biological TMDL development has been temporarily suspended in delisting based on one sample is commensurate with the amount of data response to Senate Bill 562. Therefore, biological TMDLs were not initially used to list the majority of biologically impaired segments. developed in the Monongahela River and West Fork River watershed TMDL projects. In contrast, prior TMDL projects included development One commenter noted that the WVSCI was designed to be updated as and formal approval of biological impairment TMDLs. Those TMDLs new data from reference sites are obtained and that an impairment are directly identi¿ ed in Table B. threshold greater than 68 is indicated by new data. 31 DDivisionivision ooff WWaterater aandnd WWasteaJA2785ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 159 of Filed235 07/07/16 Page 45 of 279 PageID #: 4057 In the Monongahela and West Fork River watershed TMDL projects, One commenter mistakenly indicated that the DEP did not issue a stressor identi¿ cation (SI) to determine the signi¿ cant stressor(s) to public notice for the 2014 Draft Section 303(d) list and requested an benthic macroinvertebrates was performed under the same methodology extension of the comment period. used in prior projects. The DEP performed SI for streams with available The draft Section 303(d) List was advertised for public comment on June biological information demonstrating WVSCI scores less than 68 at the 12, 2014. Legal notices of the availability of the draft document and same time it was developing TMDLs based on numeric water quality request for public comments were placed in newspapers statewide. The criteria for those streams. draft document was promoted via news release, e-mail and the Internet. For a subset of the streams subjected to SI, the DEP determined that The public comment period extended from June 12, 2014 to July 11, implementation of the TMDLs based upon numeric water quality criteria 2014. would resolve the impacts upon which the biological impairment listings were based. Those streams are identi¿ ed with the “surrogate” label in One commenter requested explanation of how “modifi cation of the Tables B and B-1, and the impairments are no longer included on the listing methodology” might be cause for delisting previous impairments 303(d) list. The reason for the Table B variation is simply that formal without TMDL development and the presentation of specifi c examples. biological impairment TMDLs were not presented or approved. The The Supplemental Table A description includes the subject scenario as absence of formal biological TMDLs does not invalidate the underlying a possible cause for including a stream/impairment delisting, but this science associated with SI that demonstrates that implementation of scenario did not exist in the 2014 assessment. An analogous situation approved numeric criteria TMDLs will resolve the biological stress that did occur in the re¿ nement of the listed length of the algae impairment caused the listings. in Greenbrier River. The new methodology described on page 12 of the draft report was applied to re¿ ne the listed length of the impairment. A It is important to note that biological impacts addressed in this manner past example involved the ¿ sh tissue based mercury methodology where represented only a subset of the SI results and that the DEP has retained assessments were previously based on ¿ llet and total mercury results many biological impairment listings where SI determined the presence of and changed in 2010 to a whole body/ methylmercury basis to improve stressors that are not resolved through implementation of numeric criteria consistency with the applicable water quality criterion. TMDLs. One commenter requested additional information to be presented in the The results of SI and the stream-speci¿ c numeric criteria TMDLs that various Supplemental Tables provided with the 303(d) list. are anticipated to resolve impacts are presented directly in the TMDL Specifi c requests included: reports. Table 4-1 in both the Monongahela River and West Fork River • The locations and sample dates of improved biological results in TMDL reports identi¿ es stream-speci¿ c surrogate TMDLs for biological Supplemental Table A impacts. The reports are available at: • Additional columns of data for Causative Stressor(s), Source, http://www.dep.wv.gov/WWE/watershed/TMDL/grpd/Pages/default. Impaired Size, Reach Description for TMDLs referenced in aspx#monongahela Supplemental Table B and the pollutant-specifi c TMDLs associated http://www.dep.wv.gov/WWE/watershed/TMDL/grpe/Pages/default. with CNA-Biological (Surrogate) designations aspx#west%20fork • Mean and confi dence level water quality statistics before and after implementation of water quality improvements for Supplemental Table C entries 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 32 JA2786 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 160 of Filed235 07/07/16 Page 46 of 279 PageID #: 4058 • Identifi cation of point source discharges by permit number for List Supplements Overview Supplemental Table D entries Six supplements are provided that contain additional information. The In many instances, the requested information is dif¿ cult to display six supplements are entitled: “Previously Listed Waters – No TMDL in the format of the document but is alternatively available in TMDL Developed,” “Previously Listed Waters – TMDL Developed,” “Water reports and/or upon request. The DEP’s Watershed Assessment Branch Quality Improvements,” “Impaired Waters – No TMDL Needed,” “Total welcomes stream-speci¿ c requests for information as they are often the Aluminum TMDLs Developed,” and “New Listings for 2014.” best mechanism for communicating details. Supplemental Table A - Previously Listed Waters – No TMDL The latter mechanism is suggested for the information requested in Developed Supplemental Tables A and C. Additionally, the database of water quality Previously listed waters from the 2012 list that are not on the 2014 list data generated by the Watershed Assessment Branch may be queried at are included in this supplement if a TMDL has not been developed, and the following link and biological data is intended to be made available in these waters have been reevaluated and determined not to be impaired. the near future.: https://apps.dep.wv.gov/dwwm/wqdata/ Causes for revision of the impairment status include recent water quality data demonstrating an improved water quality condition, revision to the The information requested relative to Supplemental Tables B is best water quality criteria associated with the previous listing, documentation obtained via review of approved TMDLs that are posted on the DEP’s that the water was previously listed in error or a modi¿ cation of the webpage. In contrast to 303(d) listings that have impaired segments listing methodology. and lengths identi¿ ed by simpli¿ ed rules for interpreting monitoring information, West Virginia develops watershed TMDLs through Supplemental Table B - Previously Listed Waters - TMDL Developed detailed modeling and prescribes allocations for multiple sources and TMDLs have been developed for many previously listed waters. TMDL source categories that are predicted to attain water quality criteria at all development allows the removal of impairments from the 303(d) list. delineated subwatersheds. All approved WV TMDLs can be viewed at: Waters included in Supplemental Table B have TMDLs developed for http://www.dep.wv.gov/WWE/watershed/TMDL/Pages/default.aspx the identi¿ ed impairments, but water quality improvements are not yet complete and/or documented. Waters in Supplemental Table B will have Descriptions of the biological stressor identi¿ cation process used in the an Integrated Report Category 4A designation unless TMDLs still need Monongahela and West Fork River watershed TMDL projects are also to be developed for other pollutants, in which case the stream will be provided at that website. Chapter 4 of each TMDL report summarizes included in Category 5. stressor identi¿ cation results. Table 4-1 of each report identi¿ es stream- speci¿ c surrogate TMDLs for biological impacts. Additional details Supplemental Table C - Water Quality Improvements are available in the Stressor Identi¿ cation Technical Report Appendix The goal of TMDLs and stream restoration projects is to bring the stream associated with each project. back to the point where it meets its designated uses and the associated water quality criteria. Supplement C includes a listing of streams Supplemental Table D has been modi¿ ed to include the permit numbers with improved water quality due to TMDL implementation or pre- associated with Category 4b point source discharges. TMDL stream restoration work resulting in delisting. In the Integrated Report, the waters in Supplement C can be included in Category 1 if all designated uses are being met. 33 DDivisionivision ooff WWaterater aandnd WWasteaJA2787ste MManagementanagement Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 161 of Filed235 07/07/16 Page 47 of 279 PageID #: 4059 Supplemental Table D - Impaired Waters - No TMDL Development Needed This table lists impaired waters for which either other control mechanisms are in place to control pollutants or the water is not impaired by a pollutant (i.e., À ow alterations caused by mining). These waters will be contained in Integrated Report Categories 4b and 4c unless TMDLs need to be developed for other pollutant-related impairments (Category 5). Supplemental Table E - Total Aluminum TMDLs Developed This table contains a list of previously listed waters for which total aluminum TMDLs were developed and established by the EPA. Due to a criteria change from total aluminum to dissolved aluminum, the state placed total aluminum TMDLs onto a separate table from Supplemental Table B. Streams are removed from this list after dissolved aluminum evaluations are made. Supplemental Table F - New Listings for 2014 This table is a list of impaired waters that are new on the list for 2014 and were not on the 2012 Section 303(d) list. 22014014 IIntegratedntegrated WWaterater QQualityuality MMonitoringonitoring aandnd AAssessmentssessment RReporteport 34 JA2788 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 162 of Filed235 07/07/16 Page 48 of 279 PageID #: 4060 WV 2014 Section 303(d) List Key List Format Impaired waters are first organized by their hydrologic group pursuant to the West Virginia Watershed Management Framework (i.e. Hydrologic Group A waters are shown first, followed by Hydrologic Group B, etc.). Within each hydrologic group, major watersheds are displayed alphabetically (e.g. within Hydrologic Group C, the Gauley Watershed is displayed first, followed by the Lower Guyandotte and so on). Within each major watershed, impaired waters are arranged by their stream code. The following table displays the format of the West Virginia 2014 Section 303(d) List and contains excerpts designed to display various intricacies. West Virginia’s streams are coded under an alphanumeric system. Major rivers have been assigned an alphabetical code that symbolizes their name. For example, the code for the Potomac - South Branch is “WVPSB” which symbolizes West Virginia – Potomac - South Branch. Adding a numerical suffix to the major river code codifies tributaries to the mainstems of the major rivers. Suffixes are applied in ascending order from mouth to headwaters. Tributaries of tributaries are codified by alternately adding numerical and alphabetical suffixes, always in ascending order from mouth to headwaters. In the example table, Mill Creek (WVPSB-9) is the 9th tributary of the Potomac - South Branch (WVPSB) and Elmlick Run (WVPSB-9-G) is the 7th tributary of Mill Creek. The “Criteria Affected” column identifies the water quality criterion that is not attained in the impaired water. On the list, a separate line is provided for each affected criterion. The “Source” column identifies the general source(s) of the impairment. In most instances, the actual source of impairment is not known at the time of listing. For all waters and impairments, the impaired length is provided, as well as the impaired reach description, in as much detail as possible. If the exact length of impairment is unknown, the entire length of the stream is indicated by default. Sources of impairment and impaired reach descriptions will be confirmed in the TMDL development process. The “Projected TMDL Year” column indicates the latest year in which the WVDEP plans to develop a TMDL for the impairment. Dates for some legacy biological impairments are not specified in the “Projected TMDL Year” column. The alternative “TBD” entries signify the DEP’s intent to address the impairments as soon as practicable after accomplishing SB 562 requirements. Projected TMDL Completion Year Hydrologic Group A 2014, 2019, 2024 Hydrologic Group B 2015, 2020, 2025 Hydrologic Group C 2016, 2021, 2026 Hydrologic Group D 2017, 2022, 2027 Hydrologic Group E 2018, 2023, 2028 The last column of the list provides information as to whether or not the stream appeared on the West Virginia 2012 Section 303(d) List or is a new listing. JA2789 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 163 of Filed235 07/07/16 Page 49 of 279 PageID #: 4061 Designated Uses The affected designated uses associated with each listing are not displayed in the tabular format. Instead, the following table and discussion provides information regarding the affected designated use(s) for all criteria exceedances that resulted in the listing of impaired waters. Affected Designated Use Criterion Contact Aquatic Life Public Water Supply All Other uses Recreation Aluminum, dissolved X Beryllium X X Chloride X X Chromium, hexavalent X CNA - Algae X X CNA - Biological X Dioxin (2,3,7,8 – TCDD) X X X Fecal Coliform / Bacteria X X Iron X X Lead, dissolved X Manganese X Mercury X X X Methylmercury X X X Nitrite X PCBs X pH X X X X Selenium X X Zinc X Abbreviations and Acronyms The following table defines abbreviations and acronyms used. AQ Aquatic Life Mi Miles CNA Conditions Not Allowable Mp Mile Point (dis) Dissolved RM River Mile HW Headwaters TMDL Total Maximum Daily Load HUC Hydrologic Unit Code UNT Unnamed Tributary (Trout) Used to signify trout water criterion * TBD - To be determined. TMDLs will be developed as soon as practicable after the effective date of rules enacted pursuant to Senate Bill 562. CNA-Biological (Surrogate). Used in Supplement B to identify biological impairments resolved by the implementation of approved pollutant- specific TMDLs. JA2790 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 164 of Filed235 07/07/16 Page 50 of 279 PageID #: 4062 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) HYDROLOGIC GROUP A CHEAT WATERSHED - HUC# 05020004 1 Lake 1730 acres 29 streams 151 miles Cheat Lake WVMC-(L1) Methylmercury Unknown 1730.0 Entire Lake 2024 Yes Cheat River WVMC Fecal Coliform Unknown 24.1 RM 20.1 to RM 44.2 2024 No Webster Run WVMC-12-B-0.5 CNA-Biological Unknown 3.2 Entire length 2024 Yes UNT/Greens Run RM 6.88 WVMC-16-E CNA-Biological Unknown 1.0 Entire length 2024 Yes Shavers Fork WVMCS pH Unknown 28.0 RM 40.6 (Bemis) to RM 68.6 2019 Yes Smoky Hollow WVMCS-0.5 CNA-Biological Unknown 1.8 Entire length 2019 Yes McGee Run WVMCS-39 pH Unknown 2.0 Entire length 2019 Yes Yokum Run WVMCS-40 pH Unknown 2.6 Entire length 2019 Yes Crouch Run WVMCS-41 pH Unknown 2.8 Entire length 2019 Yes Whitmeadow Run WVMCS-44 pH Unknown 2.5 Entire length 2019 Yes Stonecoal Run WVMCS-45 pH Unknown 2.6 Entire length 2019 Yes Fish Hatchery Run WVMCS-48 pH Unknown 2.8 Entire length 2019 Yes First Fork WVMCS-50 pH Unknown 5.4 Entire length 2019 Yes Buck Run WVMCS-52 pH Unknown 1.0 Entire length 2019 Yes Second Fork WVMCS-54 pH Unknown 4.4 Entire length 2019 Yes Lindy Run WVMC-60-D-2.5 pH Unknown 2.0 Entire length 2019 Yes Beaver Creek WVMC-60-D-5 CNA-Biological Unknown 2.3 RM 12.5 to HW 2024 No UNT/Beaver Creek RM 11.91 WVMC-60-D-5-H CNA-Biological Unknown 2.1 Entire length 2024 Yes Yellow Creek WVMC-60-D-7 CNA-Biological Unknown 3.0 Entire length 2019 Yes Freeland Run WVMC-60-D-12 CNA-Biological Unknown 1.8 Entire length 2019 Yes Laurel Run/Dry Fork WVMC-60-E pH Unknown 3.6 Entire length 2019 Yes Otter Creek WVMC-60-F pH Unknown 12.8 Entire length 2019 Yes Coal Run WVMC-60-F-1 pH Unknown 2.0 Entire length 2019 Yes Yellow Creek WVMC-60-F-7 pH Unknown 2.6 Entire length 2019 Yes JA2791 List Page 1 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 165 of Filed235 07/07/16 Page 51 of 279 PageID #: 4063 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) South Fork/Red Run WVMC-60-G-2 pH Unknown 1.6 Entire length 2019 Yes Red Creek WVMC-60-O CNA-Biological Unknown 9.7 RM 1.0 to RM 10.7 2024 No pH Unknown 19.8 Entire length 2019 Yes Gandy Run WVMC-60-O-3 pH Unknown 2.3 Entire length 2019 Yes South Fork/Red Creek WVMC-60-O-4 pH Unknown 6.0 Entire length 2019 Yes Stonecoal Run WVMC-60-O-6 pH Unknown 2.2 Entire length 2019 Yes Tory Camp Run WVMC-60-R CNA-Biological Unknown 2.6 Entire length 2019 Yes SHENANDOAH (HARDY) WATERSHED - HUC# 02070006 4 streams 7 miles UNT/Capon Run RM 4.49 WVSNF-1-A Fecal Coliform Unknown 2.2 Mouth to RM 2.2 2015 No Iron Unknown 2.2 Mouth to RM 2.2 2015 No Crab Run WVSNF-2 Fecal Coliform Unknown 1.3 RM 3.8 (VA/WV border) to 5.1 2015 No Iron Unknown 1.3 RM 3.8 (VA/WV border) to 5.1 2015 No UNT/Crab Run RM 3.97 WVSNF-2-N Fecal Coliform Unknown 1.9 Entire length 2015 No Iron Unknown 1.9 Entire length 2015 No UNT/Crab Run RM 5.65 WVSNF-2-T Fecal Coliform Unknown 1.1 Entire length 2015 No Iron Unknown 1.1 Entire length 2015 No SHENANDOAH (JEFFERSON) WATERSHED - HUC# 02070007 2 streams 13 miles Bullskin Run WVS-6 Fecal Coliform Unknown 8.5 Entire length 2024 Yes North Fork/Bullskin Run WVS-6-A Fecal Coliform Unknown 4.6 Entire length 2024 Yes Nitrite Unknown 4.6 Entire length 2024 Yes JA2792 List Page 2 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 166 of Filed235 07/07/16 Page 52 of 279 PageID #: 4064 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) SOUTH BRANCH POTOMAC WATERSHED - HUC# 02070001 34 streams 204 miles South Branch Potomac River WVPSB CNA-Algae Unknown 34.3 RM 23.7 (Johns Run) to RM 58 2024 Yes (South Fork) UNT/UNT RM 1.38/UNT RM WVPSB-1.9-A-1 Fecal Coliform Unknown 0.6 Entire length 2015 No 0.30/South Branch Potomac River RM 21.86 Buffalo Creek WVPSB-5 Fecal Coliform Unknown 1.5 Mouth to RM 1.5 2015 No Mill Creek WVPSB-9 DO Unknown 4.8 RM 1.0 to RM 5.8 2024 No Fecal Coliform Unknown 12.9 RM 1.0 to HW 2024 No Dumpling Run WVPSB-9-B Fecal Coliform Unknown 2.6 Entire length 2015 No Elmlick Run WVPSB-9-G Fecal Coliform Unknown 5.1 Entire length 2024 No Anderson Run WVPSB-18 CNA-Biological Unknown 4.9 Entire length 2015 Yes Mudlick Run WVPSB-18-A Fecal Coliform Unknown 8.4 Entire length 2015 No Iron Unknown 5.4 Mouth to RM 5.4 2015 No UNT/Mudlick Run RM 2.88 WVPSB-18-A-0.8 Fecal Coliform Unknown 1.0 Entire length 2015 No UNT/UNT RM 1.62/Mudlick Run WVPSB-18-A-0.8-B Fecal Coliform Unknown 2.4 Entire length 2015 No RM 2.88 Turnmill Run WVPSB-18-A-1 Fecal Coliform Unknown 2.3 Entire length 2015 No Iron Unknown 2.3 Entire length 2015 No Walnut Bottom Run WVPSB-18-B Fecal Coliform Unknown 5.2 Entire length 2015 No South Fork/South Branch WVPSB-21 CNA-Biological Unknown 11.8 RM 26.4 to RM 38.2 2024 Yes Potomac River Dumpling Run WVPSB-21-F CNA-Biological Unknown 1.5 Mouth to RM 1.5 2015 Yes UNT/South Branch Potomac WVPSB-21-T CNA-Biological Unknown 2.6 Entire length 2015 Yes River RM 40.44 Fecal Coliform Unknown 2.6 Entire length 2015 No Miller Run WVPSB-21-AA CNA-Biological Unknown 6.5 Entire length 2015 Yes JA2793 List Page 3 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 167 of Filed235 07/07/16 Page 53 of 279 PageID #: 4065 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/South Branch Potomac WVPSB-21.5 CNA-Biological Unknown 6.1 Entire length 2015 Yes River RM 59.19 Fecal Coliform Unknown 6.1 Entire length 2015 No UNT/UNT RM 2.27/South Branch WVPSB-21.5-E CNA-Biological Unknown 4.5 Entire length 2015 No Potomac River RM 59.19 Fecal Coliform Unknown 4.5 Entire length 2015 No UNT/UNT RM 4.07/South Branch WVPSB-21.5-G Fecal Coliform Unknown 2.1 Entire length 2015 No Potomac River RM 59.19 Johnson Run WVPSB-25-A Fecal Coliform Unknown 4.2 Entire length 2015 Yes North Mill Creek WVPSB-25-B Fecal Coliform Unknown 13.2 Entire length 2015 Yes Stony Creek WVPSB-25-B-1 CNA-Biological Unknown 3.4 Entire length 2024 No Fecal Coliform Unknown 3.4 Entire length 2015 No Iron Unknown 3.4 Entire length 2015 No Brushy Run WVPSB-25-B-2 CNA-Biological Unknown 4.9 Entire length 2024 No Fecal Coliform Unknown 4.9 Entire length 2015 Yes Iron Unknown 4.9 Entire length 2015 No South Mill Creek WVPSB-25-C CNA-Biological Unknown 6.2 Mouth to RM 6.2 2024 No Fecal Coliform Unknown 8.3 RM 6.2 to HW 2015 Yes Robinson Run WVPSB-26-A CNA-Biological Unknown 3.8 Mouth to RM 3.8 2015 Yes Fecal Coliform Unknown 5.4 Entire length 2015 No UNT/Robinson Run RM 2.84 WVPSB-26-A-4 DO Unknown 1.0 Entire length 2015 No Fecal Coliform Unknown 1.0 Entire length 2015 No JA2794 List Page 4 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 168 of Filed235 07/07/16 Page 54 of 279 PageID #: 4066 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) South Fork/Lunice Creek WVPSB-26-D CNA-Biological Unknown 5.2 Mouth to RM 5.2 2015 Yes DO Unknown 5.2 Mouth to RM 5.2 2015 No Fecal Coliform Unknown 10.3 Entire length 2015 No Iron (trout) Unknown 5.2 Mouth to RM 5.2 2015 No Big Star Run WVPSB-26-D-2 Fecal Coliform Unknown 4.8 Entire length 2015 No Powers Hollow WVPSB-28-0.2A CNA-Biological Unknown 1.8 Mouth to RM 1.8 2015 Yes Fecal Coliform Unknown 2.7 Entire length 2015 No Jordan Run WVPSB-28-A CNA-Biological Unknown 0.2 Mouth to RM 0.2 2015 Yes Fecal Coliform Unknown 5.9 Entire length 2015 No Laurel Run/Jordan Run WVPSB-28-A-2 Fecal Coliform Unknown 2.3 Entire length 2015 No Mill Creek WVPSB-28-M CNA-Biological Unknown 3.4 Entire length 2015 Yes Deer Run WVPSB-35 Fecal Coliform Unknown 9.5 Entire length 2015 No Gravel Lick Run WVPSB-46-B CNA-Biological Unknown 2.9 Entire length 2024 Yes UPPER KANAWHA WATERSHED - HUC# 05050006 82 streams 259 miles Mission Hollow (Venable Branch) WVK-46 CNA-Biological Unknown 2.3 Entire length 2015 Yes Fecal Coliform Unknown 2.3 Entire length 2015 No Chappel Hollow (Chappel WVK-46-A CNA-Biological Unknown 2.8 Entire length 2015 No Branch) Fecal Coliform Unknown 2.8 Entire length 2015 No Lower Donnally Branch WVK-48 CNA-Biological Unknown 2.0 Entire length 2015 Yes Fecal Coliform Unknown 2.0 Entire length 2015 No Iron Unknown 1.0 Mouth to RM 1.0 2015 No JA2795 List Page 5 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 169 of Filed235 07/07/16 Page 55 of 279 PageID #: 4067 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Pointlick Fork WVK-49-F CNA-Biological Mining 3.7 Entire length 2019 Yes Selenium Unknown 3.7 Entire length 2015 Yes UNT/Pointlick Fork RM 2.26 WVK-49-F-4 Selenium Unknown 0.7 Entire length 2015 Yes Rattlesnake Hollow WVK-49-I CNA-Biological Mining 2.0 Entire length 2019 Yes Selenium Unknown 2.0 Entire length 2015 Yes Big Ninemile Fork WVK-49-N CNA-Biological Unknown 0.9 Mouth to RM 0.9 2024 Yes Georges Creek WVK-50 CNA-Biological Unknown 2.8 Entire length 2015 Yes Fecal Coliform Unknown 2.8 Entire length 2015 No Rush Creek WVK-51 CNA-Biological Unknown 2.1 Entire length 2024 No UNT/Rush Creek RM 0.74 WVK-51-B CNA-Biological Unknown 1.4 Entire length 2024 No Halfway Hollow WVK-57-A.5 Aluminum (d) Unknown 0.8 Entire length 2024 No Iron Unknown 0.8 Entire length 2024 No pH Unknown 0.8 Entire length 2024 No Laurel Fork WVK-57-B Aluminum (d) Unknown 1.8 Entire length 2024 No Manganese Unknown 1.8 Entire length 2024 No UNT/Laurel Fork RM 0.78 WVK-57-B-1 Iron Unknown 0.5 Entire length 2024 No New West Hollow WVK-58-B.8-1 Chloride Unknown 1.2 Entire length 2015 No CNA-Biological Unknown 1.2 Entire length 2019 Yes Selenium Unknown 1.2 Entire length 2015 No Slaughter Creek WVK-60 CNA-Biological Unknown 2.5 Mouth to RM 2.5 2024 No Bradley Fork WVK-60-B CNA-Biological Unknown 1.0 Mouth to RM 1.0 2024 No Cabin Creek WVK-61 Selenium Unknown 22.7 Entire length 2024 Yes Wet Branch WVK-61-C CNA-Biological Mining 3.3 Entire length 2019 Yes Selenium Unknown 3.3 Entire length 2015 No Longbottom Creek WVK-61-F Chloride Unknown 1.8 Mouth to RM 1.8 2015 Yes CNA-Biological Unknown 1.8 Mouth to RM 1.8 2024 Yes JA2796 List Page 6 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 170 of Filed235 07/07/16 Page 56 of 279 PageID #: 4068 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Laurel Fork/Longbottom Creek WVK-61-F-2 Chloride Unknown 1.6 Entire length 2015 Yes CNA-Biological Unknown 1.6 Entire length 2024 No Coal Fork WVK-61-H Chloride Unknown 5.8 Entire length 2015 Yes CNA-Biological Mining 5.8 Entire length 2019 Yes Selenium Unknown 5.8 Entire length 2015 Yes Laurel Fork/Coal Fork WVK-61-H-1 Selenium Unknown 1.3 Mouth to RM 1.3 2015 No Left Fork/Laurel Fork WVK-61-H-1-A Selenium Unknown 2.2 Entire length 2015 Yes UNT/Left Fork RM 1.99/Laurel WVK-61-H-1-A-4 Selenium Unknown 0.4 Entire length 2015 No Fork UNT/Coal Fork RM 4.63 WVK-61-H-3 Chloride Unknown 1.3 Entire length 2015 Yes Selenium Unknown 1.3 Entire length 2015 Yes Toms Fork WVK-61-K CNA-Biological Unknown 1.8 Entire length 2024 Yes Selenium Unknown 1.8 Entire length 2015 Yes Tenmile Fork WVK-61-L Fecal Coliform Unknown 2.3 Mouth to RM 2.4 2015 No Selenium Unknown 6.0 Entire length 2015 Yes UNT/Tenmile Fork RM 1.22 WVK-61-L-0.5 CNA-Biological Unknown 0.4 Mouth to RM 0.4 2019 Yes Selenium Unknown 1.4 Entire length 2015 No UNT/Tenmile Fork RM 3.98 WVK-61-L-4 CNA-Biological Unknown 1.0 Entire length 2024 No Selenium Unknown 1.0 Entire length 2015 Yes UNT/Tenmile Fork RM 4.17 WVK-61-L-5 Selenium Unknown 0.3 Mouth to RM 0.3 2015 Yes UNT/Cabin Creek RM 16.65 WVK-61-N.8 Selenium Unknown 0.6 Entire length 2024 No Fifteenmile Fork WVK-61-O Selenium Unknown 3.6 Entire length 2024 Yes UNT/Cabin Creek RM 18.06 WVK-61-O.4 Selenium Unknown 0.7 Entire length 2024 Yes Abbott Creek WVK-61-O-1 Selenium Unknown 2.3 Entire length 2024 Yes Long Branch WVK-61-O-2 CNA-Biological Unknown 2.9 Entire length 2024 No Selenium Unknown 2.0 Mouth to RM 2.0 2024 Yes JA2797 List Page 7 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 171 of Filed235 07/07/16 Page 57 of 279 PageID #: 4069 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/Cabin Creek RM 20.30 WVK-61-P CNA-Biological Unknown 1.9 Entire length 2024 No Selenium Unknown 1.9 Entire length 2024 Yes UNT/Cabin Creek RM 20.70 WVK-61-Q Selenium Unknown 0.8 Entire length 2024 No Kellys Creek WVK-64 CNA-Biological Unknown 6.5 Entire length 2015 Yes Fecal Coliform Unknown 6.5 Entire length 2015 No Iron Unknown 2.5 Mouth to RM 2.5 2015 No Horsemill Branch WVK-64-A CNA-Biological Unknown 2.1 Entire length 2015 Yes Fecal Coliform Unknown 1.6 Mouth to RM 1.6 2015 No Manganese Unknown 1.6 Mouth to RM 1.6 2015 Yes pH Unknown 1.6 Mouth to RM 1.6 2015 Yes UNT/Horsemill Branch RM 0.50 WVK-64-A-1 Aluminum (d) Unknown 0.5 Entire length 2015 No pH Unknown 0.5 Entire length 2015 No UNT/Horsemill Branch RM 0.83 WVK-64-A-2 Aluminum (d) Unknown 0.7 Entire length 2015 No pH Unknown 0.7 Entire length 2015 No UNT/Horsemill Branch RM 1.58 WVK-64-A-4 Aluminum (d) Unknown 0.7 Entire length 2015 No Iron Unknown 0.7 Entire length 2015 No pH Unknown 0.7 Entire length 2015 No Frozen Branch WVK-64-B Fecal Coliform Unknown 1.4 Entire length 2015 No Selenium Unknown 1.4 Entire length 2015 No Sugarcamp Branch WVK-64-C CNA-Biological Unknown 1.5 Entire length 2015 Yes Manganese Unknown 1.5 Entire length 2015 No pH Unknown 1.5 Entire length 2015 No Bufflick Branch WVK-64-D CNA-Biological Unknown 2.6 Entire length 2019 Yes Left Fork/Kellys Creek WVK-64-J CNA-Biological Unknown 4.3 Entire length 2019 No JA2798 List Page 8 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 172 of Filed235 07/07/16 Page 58 of 279 PageID #: 4070 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Hurricane Fork WVK-64-K Fecal Coliform Unknown 1.9 Mouth to RM 1.9 2015 No Selenium Unknown 0.9 RM 1.9 to RM 2.8 2015 Yes Goose Hollow WVK-64-L Fecal Coliform Unknown 2.1 Entire length 2015 No Paint Creek WVK-65 CNA-Biological Unknown 42.1 Entire length 2024 No Iron (trout) Unknown 17.4 RM 14.13 (Larel Br) to RM 31.48 2019 Yes (Pax) Town Creek WVK-65-BB CNA-Biological Unknown 2.1 Entire length 2024 No Selenium Unknown 2.1 Entire length 2024 No Fourmile Fork WVK-65-E CNA-Biological Unknown 4.6 Entire length 2024 No Selenium Unknown 2.4 Mouth to RM 2.4 2024 Yes Toms Branch WVK-65-J CNA-Biological Unknown 1.9 Entire length 2024 No Selenium Unknown 1.9 Entire length 2024 No Sycamore Branch WVK-65-L CNA-Biological Unknown 3.2 Entire length 2024 Yes Tenmile Fork WVK-65-M CNA-Biological Unknown 2.4 Entire length 2024 Yes Long Branch WVK-65-M-1 Aluminum (d) Unknown 4.1 Entire length 2024 Yes CNA-Biological Unknown 4.1 Entire length 2024 No Cedar Creek WVK-65-Q Aluminum (d) Unknown 1.2 Entire length 2015 No CNA-Biological Unknown 1.2 Entire length 2015 Yes Milburn Creek WVK-65-V CNA-Biological Unknown 2.2 Entire length 2024 No Bishop Fork WVK-65-X CNA-Biological Unknown 1.7 Entire length Yes Mossy Creek WVK-65-Y CNA-Biological Unknown 4.7 Mouth to RM 4.7 2024 Yes Fecal Coliform Unknown 2.6 Mouth to RM 2.6 2015 No Austin Hollow WVK-65-Y.5 CNA-Biological Unknown 1.4 Entire length 2024 No Long Branch WVK-65-Y-2 CNA-Biological Unknown 1.0 Entire length 2015 No Fecal Coliform Unknown 1.0 Entire length 2015 No Town Creek WVK-65-BB Selenium Unknown 2.1 Entire length 2024 No JA2799 List Page 9 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 173 of Filed235 07/07/16 Page 59 of 279 PageID #: 4071 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) North Sand Branch WVK-65-HH-1 CNA-Biological Unknown 3.5 Entire length 2015 Yes Fecal Coliform Unknown 0.7 Mouth to RM 0.7 2015 No Maple Fork WVK-65-HH-1-A CNA-Biological Unknown 2.9 Entire length 2015 Yes Fecal Coliform Unknown 2.9 Entire length 2015 No Iron Unknown 2.9 Entire length 2015 No Hughes Creek WVK-66 CNA-Biological Unknown 6.2 Mouth to RM 6.2 2019 Yes Iron Unknown 3.7 RM 3.0 to HW 2015 No Selenium Unknown 7.0 Entire length 2015 Yes Barn Hollow WVK-66-B.6 CNA-Biological Unknown 0.7 Entire length 2019 Yes Selenium Unknown 0.7 Entire length 2015 No Graveyard Hollow WVK-66-B.7 Selenium Unknown 1.1 Entire length 2015 No Sixmile Hollow WVK-66-D Selenium Unknown 1.5 Entire length 2015 Yes Dunn Hollow WVK-69 Selenium Unknown 2.0 Entire length 2024 Yes Smithers Creek WVK-72 CNA-Biological Unknown 4.4 Mouth to RM 4.4 2024 Yes Bullpush Fork WVK-72-B CNA-Biological Unknown 2.4 Entire length 2019 Yes Selenium Unknown 2.4 Entire length 2015 Yes Burnett Hollow WVK-72-B-2 Fecal Coliform Unknown 1.2 Entire length 2015 No Riffle Hollow WVK-72-B-4 Selenium Unknown 0.8 Entire length 2015 No Fourmile Fork WVK-72-F CNA-Biological Unknown 1.1 Entire length 2019 No Selenium Unknown 1.1 Entire length 2015 No Armstrong Creek WVK-73 Selenium Unknown 8.6 Entire length 2024 Yes Loop Creek WVK-76 CNA-Biological Unknown 20.0 Entire length 2024 No Dempsey Branch WVK-76-C Fecal Coliform Unknown 2.7 Entire length 2024 No Big Run WVK-76-H CNA-Biological Unknown 1.7 Entire length 2024 No JA2800 List Page 10 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 174 of Filed235 07/07/16 Page 60 of 279 PageID #: 4072 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/Loop Creek RM 13.30 WVK-76-J.8 Selenium Unknown 0.6 Entire length 2024 Yes Open Fork WVK-76-M CNA-Biological Unknown 1.3 Entire length 2024 No UNT/Open Fork RM 0.22 WVK-76-M-1 Selenium Unknown 0.6 Entire length 2024 Yes Carter Branch WVK-76-N CNA-Biological Unknown 1.4 Mouth to RM 1.36 2024 No Taylor Branch WVK-76-N-1 CNA-Biological Unknown 1.3 Entire length 2024 No UPPER OHIO NORTH WATERSHED - HUC# 05030101 8 streams 42 miles Ohio River (Upper North) WVO-un Dioxin Unknown 31.4 MP 71.4 to MP 40 (PA line) 2020 Yes (Entire length) Fecal Coliform Unknown 31.4 MP 71.4 to MP 40 (PA line) 2016 Yes (Entire length) Iron Unknown 14.4 MP 54.4 to MP 40 (PA line) 2018 Yes Mahan Run WVO-96 CNA-Biological Unknown 2.8 Entire length 2019 Yes Fecal Coliform Unknown 2.8 Entire length 2015 Yes UNT/Mahan Run RM 2.04 WVO-96-A CNA-Biological Unknown 1.0 Entire length 2019 No Fecal Coliform Unknown 1.0 Entire length 2015 No UNT/Holbert Run RM 1.26 WVO-99-B Fecal Coliform Unknown 1.1 Entire length 2015 No Muchmores Run (Laurel Hollow) WVO-105 CNA-Biological Unknown 2.1 Entire length 2015 Yes Fecal Coliform Unknown 2.1 Entire length 2015 No Middle Run WVO-107 CNA-Biological Unknown 1.3 Mouth to RM 1.3 2015 Yes Fecal Coliform Unknown 1.3 Mouth to RM 1.3 2015 No Marks Run WVO-108 CNA-Biological Unknown 1.7 Entire length 2019 Yes Fecal Coliform Unknown 1.7 Entire length 2015 No UNT/Marks Run RM 0.89 WVO-108-A CNA-Biological Unknown 0.7 Entire length 2019 No Fecal Coliform Unknown 0.7 Entire length 2015 No JA2801 List Page 11 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 175 of Filed235 07/07/16 Page 61 of 279 PageID #: 4073 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) HYDROLOGIC GROUP B COAL WATERSHED - HUC# 05050009 79 streams 236 miles Fuquay Creek WVKC-8 CNA-Biological Unknown 5.4 Entire length 2025 Yes Cobb Creek WVKC-10-E CNA-Biological Unknown 3.8 Entire length 2025 No Tiny Creek WVKC-10-E-1 CNA-Biological Unknown 2.0 Entire length 2025 No Ely Fork WVKC-10-E-2 CNA-Biological Unknown 3.6 Entire length 2020 Yes Big Horse Creek WVKC-10-I Selenium Unknown 4.1 RM 6.0 to HW 2025 Yes Boone Block Hollow WVKC-10-I-6-A-1 Selenium Unknown 1.0 Entire length 2025 Yes Jule Webb Fork WVKC-10-I-11 Selenium Unknown 1.4 Entire length 2025 Yes Slippery Gut Branch WVKC-10-M CNA-Biological Unknown 1.9 Entire length 2020 Yes Spruce Fork WVKC-10-T CNA-Biological Unknown 23.6 Mouth to RM 23.6 2025 Yes Selenium Unknown 8.8 RM 22.2 to HW (to fks) 2025 Yes Trace Branch WVKC-10-T-11-B Selenium Unknown 2.2 Entire length 2025 Yes UNT/Trace Branch RM 0.64 WVKC-10-T-11-B-1 Selenium Unknown 0.9 Entire length 2025 Yes Rockhouse Creek WVKC-10-T-13 CNA-Biological Mining 0.8 Mouth to RM 0.8 2020 Yes Left Fork/Beech Creek WVKC-10-T-15-A CNA-Biological Mining 2.4 Entire length 2020 Yes White Oak Branch WVKC-10-T-22 Selenium Unknown 1.4 Mouth to RM 1.4 2025 Yes Garland Fork WVKC-10-T-23 CNA-Biological Unknown 3.2 Entire length 2025 No Selenium Unknown 3.2 Entire length 2025 Yes Abe burgess Fork WVKC-10-T-23-C Selenium Unknown 1.9 Entire length 2025 Yes Brushy Fork WVKC-10-T-24 Selenium Unknown 3.8 Entire length 2025 Yes Avis Fork WVKC-10-T-24-B CNA-Biological Unknown 1.5 Entire length 2025 No Robinson Creek WVKC-10-U-3 CNA-Biological Unknown 5.3 Entire length 2025 No Selenium Unknown 2.6 RM 2.7 to HW 2025 Yes Bull Creek WVKC-10-U-5 Selenium Unknown 3.5 Entire length 2025 Yes UNT/Bull Creek RM 2.69 WVKC-10-U-5-G Selenium Unknown 0.5 Entire length 2025 Yes JA2802 List Page 12 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 176 of Filed235 07/07/16 Page 62 of 279 PageID #: 4074 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) West Fork/Pond Fork WVKC-10-U-7 Selenium Unknown 4.6 RM 7.9 to RM 12.5 2025 Yes Whites Branch WVKC-10-U-7-B CNA-Biological Unknown 3.8 Entire length 2025 No Bandy Branch WVKC-10-U-7-E Selenium Unknown 2.8 Entire length 2025 Yes Mudlick Branch WVKC-10-U-7-E-1 Selenium Unknown 2.0 Entire length 2025 Yes James Creek WVKC-10-U-7-I CNA-Biological Unknown 2.1 Entire length 2025 No UNT/West Fork RM 9.41/Pond WVKC-10-U-7-I.3 Selenium Unknown 0.4 Entire length 2025 No Fork UNT/James Creek RM 0.22 WVKC-10-U-7-I-1 CNA-Biological Unknown 2.9 Entire length 2025 No Selenium Unknown 2.9 Entire length 2025 Yes UNT/UNT RM 0.86/James Creek WVKC-10-U-7-I-1-A CNA-Biological Unknown 1.2 Entire length 2025 No RM 0.22 Selenium Unknown 1.2 Entire length 2025 Yes UNT/James Creek RM 0.76 WVKC-10-U-7-I-2 Selenium Unknown 0.7 Entire length 2025 Yes Matts Creek WVKC-10-U-7-J Selenium Unknown 0.9 Mouth to RM 0.9 2025 Yes Jarrell Branch WVKC-10-U-11 CNA-Biological Unknown 3.9 Entire length 2025 No Selenium Unknown 0.9 RM 0.9 to HW 2025 Yes Trace Fork WVKC-10-U-12-A CNA-Biological Unknown 0.9 Entire length 2020 Yes Workman Branch WVKC-10-U-15 CNA-Biological Unknown 1.8 Entire length 2025 No James Branch WVKC-10-U-16 CNA-Biological Mining 2.3 Mouth to RM 2.3 2020 Yes UNT/James Branch RM 0.52 WVKC-10-U-16-A CNA-Biological Unknown 1.8 Entire length 2025 No Big Coal River WVKC-Big Selenium Unknown 6.9 RM 25.7 to RM 32.6 2025 Yes Brier Creek WVKC-13 CNA-Biological Unknown 8.4 Entire length 2020 Yes Fork Creek WVKC-14 CNA-Biological Unknown 3.6 Mouth to RM 3.6 2025 Yes Selenium Unknown 2.5 Mouth to RM 2.5 2025 Yes River Fork WVKC-14-A CNA-Biological Unknown 2.7 Entire length 2025 No Locust Fork WVKC-14-B CNA-Biological Unknown 0.7 RM 0.8 to RM 1.52 2025 No Left Fork/Bull Creek WVKC-16-A CNA-Biological Unknown 2.8 Entire length 2025 No JA2803 List Page 13 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 177 of Filed235 07/07/16 Page 63 of 279 PageID #: 4075 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Road Fork WVKC-16-D Selenium Unknown 1.7 Entire length 2025 Yes Roundbottom Creek WVKC-23 CNA-Biological Unknown 1.8 Entire length 2025 No Mill Branch WVKC-25.5 CNA-Biological Unknown 1.1 Entire length 2025 No UNT/Big Coal River RM 23.83 WVKC-30.8 CNA-Biological Unknown 0.7 Mouth to RM 0.73 2025 No Carrow Fork WVKC-29-A-2 CNA-Biological Unknown 1.6 Entire length 2025 No Laurel Creek WVKC-31 CNA-Biological Unknown 8.6 Entire length 2025 No Selenium Unknown 8.6 Entire length 2025 Yes Hopkins Fork WVKC-31-B CNA-Biological Unknown 8.3 RM 0.85 to RM 9.19 2020 Yes Big Jarrells Creek WVKC-31-B-2 CNA-Biological Unknown 6.1 Entire length 2025 No Stolling Fork WVKC-31-I Selenium Unknown 2.5 Entire length 2025 Yes UNT/Moccasin Hollow RM 0.31 WVKC-35-E-2-A CNA-Biological Unknown 0.5 Entire length 2025 No White Oak Creek WVKC-35 CNA-Biological Unknown 5.5 Entire length 2025 No Moccasin Hollow WVKC-35-E-2 CNA-Biological Unknown 0.4 Mouth to RM 0.4 2025 No Selenium Unknown 0.4 Mouth to RM 0.4 2025 Yes Right Fork/White Oak Creek WVKC-35-F Selenium Unknown 1.1 Mouth to RM 1.1 2025 Yes Seng Creek WVKC-42 CNA-Biological Mining 5.9 Entire length 2020 Yes Culvert Hollow WVKC-42-A Selenium Unknown 1.5 Entire length 2025 Yes Little Marsh Fork WVKC-46-A CNA-Biological Unknown 6.2 Entire length 2025 Yes Brushy Fork WVKC-46-A-4 Selenium Unknown 1.9 Entire length 2025 Yes Bacon Hollow WVKC-46-A-5 Selenium Unknown 0.5 Mouth to 0.5 2025 Yes Beetree Branch WVKC-46-A-6 CNA-Biological Unknown 0.0 Mouth to RM 0.03 2025 No UNT/Marsh Fork RM 4.13 (Upper WVKC-46-A.7 Selenium Unknown 1.1 RM 1.4 to HW 2025 Yes Big Branch) Ellis Creek WVKC-46-B CNA-Biological Mining 1.2 Mouth to RM 1.2 2020 Yes Hazy Creek WVKC-46-C CNA-Biological Unknown 0.9 Mouth to RM 0.9 2025 No Horse Creek WVKC-46-F CNA-Biological Unknown 2.8 RM 2.3 to HW 2025 No Rock Creek WVKC-46-I CNA-Biological Unknown 5.2 Entire length 2020 Yes JA2804 List Page 14 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 178 of Filed235 07/07/16 Page 64 of 279 PageID #: 4076 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Spanker Branch WVKC-46-M CNA-Biological Unknown 2.0 Entire length 2020 Yes Rockhouse Creek WVKC-47-A CNA-Biological Unknown 3.3 Entire length 2025 No Selenium Unknown 3.3 Entire length 2020 Yes UNT/Rockhouse Creek RM 0.99 WVKC-47-A-2 Selenium Unknown 1.6 Entire length 2025 Yes UNT/Rockhouse Creek RM 2.04 WVKC-47-A-5 Selenium Unknown 1.3 Entire length 2025 Yes Gardner Branch WVKC-47-B Selenium Unknown 1.4 Entire length 2025 Yes Laurel Branch WVKC-47-D Selenium Unknown 1.3 Entire length 2025 Yes Fulton Creek WVKC-47-I CNA-Biological Unknown 3.2 Entire length 2025 No White Oak Creek WVKC-47-K Selenium Unknown 4.0 Entire length 2025 Yes Horse Creek WVKC-47-K.5 Selenium Unknown 1.9 Entire length 2025 Yes Toney Fork WVKC-47-L CNA-Biological Mining 2.0 Mouth to RM 2.03 2020 Yes Selenium Unknown 2.6 Mouth to RM 2.6 2025 Yes Buffalo Fork WVKC-47-L-1 CNA-Biological Mining 1.1 Mouth to RM 1.1 2020 Yes Selenium Unknown 2.5 Entire length 2025 Yes Ewing Fork WVKC-47-L-2 CNA-Biological Unknown 1.9 Entire length 2025 Yes Selenium Unknown 1.9 Entire length 2025 Yes Reeds Branch WVKC-47-L-3 CNA-Biological Unknown 1.3 Entire length 2025 No ELK WATERSHED - HUC# 05050007 1 Lake 1500 acres 13 streams 102 miles Elk River WVKE CNA-Biological Unknown 26.0 Mouth to RM 26.0 2025 No Sutton Lake WVKE-(L1) Methylmercury Unknown 1500.0 Entire Lake 2025 Yes Pigeonroost Fork WVKE-14-G-3 CNA-Biological Unknown 1.9 Entire length 2025 Yes Laurel Creek WVKE-37 CNA-Biological Unknown 7.6 Entire length 2025 Yes Leatherwood Creek WVKE-46 CNA-Biological Mining 11.3 Entire length 2020 Yes Right Fork/Leatherwood Creek WVKE-46-C CNA-Biological Mining 4.0 Entire length 2020 Yes Bullpen Fork WVKE-46-C-1 Selenium Unknown 2.3 Entire length 2025 Yes JA2805 List Page 15 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 179 of Filed235 07/07/16 Page 65 of 279 PageID #: 4077 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Cannel Coal Hollow WVKE-46-C-2 Selenium Unknown 1.4 Entire length 2025 Yes Road Fork WVKE-46-D CNA-Biological Mining 2.4 Entire length 2020 Yes Big Branch WVKE-50-B-3 CNA-Biological Mining 2.3 Entire length 2020 Yes Little Birch River WVKE-76-E Selenium Unknown 19.8 Entire length 2025 Yes Jacks Run WVKE-76-W CNA-Biological Mining 0.2 Entire length 2020 Yes Right Fork/Holly River WVKE-98-B CNA-Biological Unknown 13.6 Mouth to RM 13.6 2025 No Laurel Creek WVKE-102 CNA-Biological Unknown 9.4 RM 4.9 to RM 14.3 2025 No LOWER KANAWHA WATERSHED - HUC# 05050008 2 Lake 49 acres 5 streams 71 miles Kanawha River (Lower) WVK-lo Fecal Coliform Unknown 56.4 RM 1.5 to RM 57.9 (confluence 2020 Yes with Elk River) PCBs Unknown 53.5 Mouth (confluence with Ohio) to 2020 Yes RM 53.5 (Dunbar) Krodel Lake WVK-1-(L1) Chlorophyll-A Unknown 22.0 Entire lake 2025 No Phosphorus Unknown 22.0 Entire lake 2025 No Second Branch WVK-26.8 CNA-Biological Unknown 2.0 Entire length 2025 No Ridenour Lake WVK-30-A-(L1) Phosphorus Unknown 27.0 Entire Lake 2025 No Kanawha Fork WVK-39 CNA-Biological Unknown 2.4 Entire length 2025 No Middle Fork/Davis Creek WVK-39-E CNA-Biological Unknown 6.0 Entire length 2025 No Kanawha Fork WVK-39-M CNA-Biological Unknown 2.4 Entire length 2025 No Joplin Branch WVK-42 CNA-Biological Mining 2.9 Entire length 2020 Yes NORTH BRANCH POTOMAC WATERSHED - HUC# 05020001 1 stream 3 miles Laurel Run WVPNB-16-C CNA-Biological Unknown 3.0 Entire length 2025 Yes JA2806 List Page 16 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 180 of Filed235 07/07/16 Page 66 of 279 PageID #: 4078 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) TYGART VALLEY WATERSHED - HUC# 05020001 173 streams 901 miles Tygart Valley River WVMT CNA-Algae Unknown 8.0 RM 72.3 to RM 80.3 2025 No CNA-Biological Unknown 21.7 RM 45.9 to RM 67.6 2016 No Fecal Coliform Unknown 134.7 Entire length 2016 Yes Goose Creek WVMT-4 Aluminum (d) Unknown 0.9 Mouth to RM 0.9 2016 No Fecal Coliform Unknown 2.6 Entire length 2016 No Lost Run WVMT-5 Fecal Coliform Unknown 7.1 RM 1.5 to HW 2016 No Wickwire Run WVMT-8 CNA-Biological Unknown 8.0 Entire length 2016 Yes Fecal Coliform Unknown 8.0 Entire length 2016 No Otter Creek WVMT-9 Fecal Coliform Unknown 2.2 Entire length 2016 No Berkeley Run WVMT-11 CNA-Biological Unknown 7.2 Entire length 2016 No Fecal Coliform Unknown 7.2 Entire length 2016 No Shelby Run WVMT-11-A Fecal Coliform Unknown 3.6 Entire length 2016 No Long Run WVMT-11-B Fecal Coliform Unknown 3.6 Entire length 2016 No Berry Run WVMT-11-B-1 Fecal Coliform Unknown 1.5 Entire length 2016 No Three Fork Creek WVMT-12 CNA-Biological Unknown 17.2 RM 1.85 to HW 2016 Yes Fecal Coliform Unknown 9.6 Mouth to RM 9.6 2016 No UNT/Three Fork Creek RM 2.02 WVMT-12-0.5A Fecal Coliform Unknown 5.0 Entire length 2016 No Rocky Branch WVMT-12-A Fecal Coliform Unknown 1.7 Entire length 2016 No Raccoon Creek WVMT-12-C Aluminum (d) Unknown 8.8 Entire length 2016 Yes CNA-Biological Unknown 8.8 Entire length 2016 Yes Little Raccoon Creek WVMT-12-C-2 Fecal Coliform Unknown 2.6 Entire length 2016 No Laurel Run WVMT-12-D Fecal Coliform Unknown 7.0 Entire length 2016 No Martins Run WVMT-12-E Fecal Coliform Unknown 2.9 Entire length 2016 No Lick Run WVMT-12-F Aluminum (d) Unknown 2.6 Entire length 2016 No pH Unknown 2.6 Entire length 2016 No JA2807 List Page 17 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 181 of Filed235 07/07/16 Page 67 of 279 PageID #: 4079 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Fields Creek WVMT-12-G Aluminum (trout) (d) Unknown 3.1 Mouth to RM 3.1 2016 No Fecal Coliform Unknown 3.1 Mouth to RM 3.1 2016 No Iron (trout) Unknown 3.1 Mouth to RM 3.1 2016 No pH Unknown 3.1 Mouth to RM 3.1 2016 No Brains Creek WVMT-12-G-2 Fecal Coliform Unknown 4.9 Entire length 2016 No Birds Creek WVMT-12-H Aluminum (d) Unknown 5.5 Entire length 2016 No Beryllium Unknown 5.5 Entire length 2016 No CNA-Biological Unknown 5.5 Entire length 2016 No Squires Creek WVMT-12-H-1 Aluminum (d) Unknown 4.5 Entire length 2016 No Beryllium Unknown 4.5 Entire length 2016 No CNA-Biological Unknown 4.5 Entire length 2016 Yes UNT/Squires Creek RM 2.40 WVMT-12-H-1-B Aluminum (d) Unknown 2.1 Entire length 2016 No CNA-Biological Unknown 2.1 Entire length 2016 No Iron Unknown 2.1 Entire length 2016 No pH Unknown 2.1 Entire length 2016 No UNT/Birds Creek RM 0.64 WVMT-12-H-2 Aluminum (d) Unknown 4.1 Entire length 2016 No Iron Unknown 4.1 Entire length 2016 No pH Unknown 4.1 Entire length 2016 Yes UNT/Birds Creek RM 2.57 WVMT-12-H-4 Aluminum (d) Unknown 2.2 Entire length 2016 No CNA-Biological Unknown 2.2 Entire length 2016 Yes Pleasant Creek WVMT-15 Fecal Coliform Unknown 6.8 Entire length 2016 No Sandy Creek WVMT-18 Fecal Coliform Unknown 16.4 Entire length 2016 No Little Cove Run WVMT-18-D Fecal Coliform Unknown 5.0 Entire length 2016 No Little Sandy Creek WVMT-18-E Aluminum (d) Unknown 10.6 Entire length 2016 Yes CNA-Biological Unknown 10.6 Entire length 2016 Yes Maple Run WVMT-18-E-1 Aluminum (d) Unknown 4.8 Entire length 2016 No CNA-Biological Unknown 4.8 Entire length 2016 No JA2808 List Page 18 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 182 of Filed235 07/07/16 Page 68 of 279 PageID #: 4080 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) York Run WVMT-18-E-2 Fecal Coliform Unknown 4.2 Entire length 2016 No Left Fork/Little Sandy Creek WVMT-18-E-3 Aluminum (d) Unknown 5.4 Entire length 2016 No Beryllium Unknown 5.4 Entire length 2016 No CNA-Biological Unknown 5.4 Entire length 2016 No Right Fork/Little Sandy Creek WVMT-18-E-4 CNA-Biological Unknown 3.2 Entire length 2016 No Left Fork/Sandy Creek WVMT-18-G CNA-Biological Unknown 8.0 Entire length 2016 No Fecal Coliform Unknown 8.0 Entire length 2016 No UNT/Left Fork RM 4.58/Sandy WVMT-18-G-2 Fecal Coliform Unknown 3.1 Entire length 2016 No Creek UNT/Sandy Creek RM 10.47 WVMT-18-H Fecal Coliform Unknown 2.8 Entire length 2016 No UNT/UNT RM 0.56/Sandy Creek WVMT-18-H-1 CNA-Biological Unknown 4.6 Entire length 2016 Yes RM 10.47 pH Unknown 4.6 Entire length 2016 No Stony Run WVMT-19.5 Fecal Coliform Unknown 1.6 Entire length 2016 No Big Cove Run WVMT-20 Fecal Coliform Unknown 5.8 Entire length 2016 No Teter Creek WVMT-23 Fecal Coliform Unknown 13.1 Mouth to RM 13.1 2016 No Glade Run WVMT-23-A Fecal Coliform Unknown 4.2 Entire length 2016 No Raccoon Creek WVMT-23-B Fecal Coliform Unknown 6.6 Entire length 2016 No Stony Run WVMT-23-B-1 Fecal Coliform Unknown 1.6 Entire length 2016 No Brushy Fork WVMT-23-C Fecal Coliform Unknown 8.6 Entire length 2016 No Mill Run WVMT-23-F CNA-Biological Unknown 3.8 Entire length 2016 No Fecal Coliform Unknown 3.8 Entire length 2016 No Jimmy Run WVMT-23-G pH Unknown 3.2 Entire length 2016 No Mill Run WVMT-23-H CNA-Biological Unknown 3.3 Entire length 2016 No Laurel Creek WVMT-24 Aluminum (trout) (d) Unknown 5.3 Entire length 2016 No Frost Run WVMT-24-A Fecal Coliform Unknown 2.2 Entire length 2016 No Bonica Run WVMT-24-B Fecal Coliform Unknown 3.8 Entire length 2016 No JA2809 List Page 19 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 183 of Filed235 07/07/16 Page 69 of 279 PageID #: 4081 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Sugar Creek WVMT-24-C CNA-Biological Unknown 12.0 Entire length 2016 Yes DO Unknown 12.0 Entire length 2016 No Fecal Coliform Unknown 12.0 Entire length 2016 No Glady Creek WVMT-24-C-0.5 Fecal Coliform Unknown 7.2 Entire length 2016 No Iron Unknown 7.2 Entire length 2016 No Whitman Run WVMT-24-C-1.5 Fecal Coliform Unknown 2.6 Entire length 2016 No Hunter Fork WVMT-24-C-3.5 Fecal Coliform Unknown 4.0 Entire length 2016 No Long Run WVMT-24-C-4 CNA-Biological Unknown 1.6 Entire length 2016 Yes Fecal Coliform Unknown 1.6 Entire length 2016 No Mitchell Run WVMT-25 CNA-Biological Unknown 2.8 Entire length 2016 No Fecal Coliform Unknown 2.8 Entire length 2016 No Hackers Creek WVMT-26 CNA-Biological Unknown 4.6 Entire length 2016 Yes Fecal Coliform Unknown 4.6 Entire length 2016 No Iron Unknown 4.6 Entire length 2016 No Taylor Drain WVMT-26-A Fecal Coliform Unknown 2.6 Entire length 2016 No Iron Unknown 2.6 Entire length 2016 No Foxgrape Run WVMT-26-B CNA-Biological Unknown 3.4 Entire length 2016 Yes Fecal Coliform Unknown 3.4 Entire length 2016 No Iron Unknown 3.4 Entire length 2016 No Little Hackers Creek WVMT-26-C CNA-Biological Unknown 1.6 Entire length 2016 No Fecal Coliform Unknown 1.6 Entire length 2016 No Iron Unknown 1.6 Entire length 2016 No Fords Run WVMT-27 Aluminum (d) Unknown 1.5 Mouth to RM 1.5 2016 No Fecal Coliform Unknown 2.7 Entire length 2016 No Shooks Run WVMT-28 Fecal Coliform Unknown 2.8 Entire length 2016 No Anglins Run WVMT-29 Fecal Coliform Unknown 2.6 Entire length 2016 No JA2810 List Page 20 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 184 of Filed235 07/07/16 Page 70 of 279 PageID #: 4082 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Buckhannon River WVMTB Fecal Coliform Unknown 34.2 Mouth to RM 16.7 and RM 22.1 to 2016 No RM 39.6 First Big Run WVMTB-1 CNA-Biological Unknown 2.7 Entire length 2016 No Fecal Coliform Unknown 2.7 Entire length 2016 No Cottrill Run WVMTB-2 Fecal Coliform Unknown 3.4 Entire length 2016 No Iron Unknown 3.4 Entire length 2016 No Big Run WVMTB-3 Fecal Coliform Unknown 6.0 Entire length 2016 No Iron Unknown 6.0 Entire length 2016 No Lick Shoals Run WVMTB-4 Fecal Coliform Unknown 2.9 Entire length 2016 No Pecks Run WVMTB-5 CNA-Biological Unknown 8.2 Entire length 2016 No Fecal Coliform Unknown 8.2 Entire length 2016 No UNT/Pecks Run RM 2.24 WVMTB-5-0.8A Fecal Coliform Unknown 1.0 Entire length 2016 No Little Pecks Run WVMTB-5-B Fecal Coliform Unknown 2.5 Entire length 2016 No Mud Run WVMTB-5-C Fecal Coliform Unknown 1.2 Entire length 2016 No Sand Run WVMTB-7 Fecal Coliform Unknown 13.8 Entire length 2016 No Laurel Fork/Sand Run WVMTB-7-A Fecal Coliform Unknown 6.8 Entire length 2016 No Left Fork/Sand Run WVMTB-7-B Fecal Coliform Unknown 4.6 Entire length 2016 No Big Run WVMTB-8 CNA-Biological Unknown 1.9 Entire length 2016 Yes Fecal Coliform Unknown 1.9 Entire length 2016 No Iron Unknown 1.9 Entire length 2016 No Childers Run WVMTB-9 CNA-Biological Unknown 2.3 Entire length 2016 Yes Fecal Coliform Unknown 2.3 Entire length 2016 No Turkey Run WVMTB-10 Fecal Coliform Unknown 7.0 Entire length 2016 No Sugar Run WVMTB-10-A Fecal Coliform Unknown 1.7 Entire length 2016 No Fink Run WVMTB-11 Fecal Coliform Unknown 8.2 Entire length 2016 No Brushy Fork WVMTB-11-A Fecal Coliform Unknown 2.4 Entire length 2016 No Iron Unknown 2.4 Entire length 2016 No JA2811 List Page 21 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 185 of Filed235 07/07/16 Page 71 of 279 PageID #: 4083 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Mud Lick WVMTB-11-B Fecal Coliform Unknown 2.4 Entire length 2016 No Wash Run WVMTB-11-B.5 CNA-Biological Unknown 1.9 Entire length 2016 Yes Fecal Coliform Unknown 1.9 Entire length 2016 No Bridge Run WVMTB-11-B.7 DO Unknown 2.5 Entire length 2016 No Fecal Coliform Unknown 2.5 Entire length 2016 No Little Sand Run WVMTB-13 DO Unknown 0.9 Mouth to RM 0.9 2016 No Fecal Coliform Unknown 3.4 Entire length 2016 Yes Left Fork/Little Sand Run WVMTB-13-A Fecal Coliform Unknown 2.5 Entire length 2016 Yes Ratcliff Run WVMTB-14 Fecal Coliform Unknown 2.9 Entire length 2016 Yes Stony Run WVMTB-15 Fecal Coliform Unknown 3.1 Entire length 2016 No Hickory Flat Run WVMTB-16 Fecal Coliform Unknown 2.5 Entire length 2016 No Cutright Run WVMTB-17 Fecal Coliform Unknown 4.2 Entire length 2016 No Iron Unknown 4.2 Entire length 2016 No Lick Run WVMTB-17-A Fecal Coliform Unknown 1.6 Entire length 2016 No Iron Unknown 1.6 Entire length 2016 No French Creek WVMTB-18 Fecal Coliform Unknown 18.5 Entire length 2016 No Iron Unknown 18.5 Entire length 2016 Yes Bull Run WVMTB-18-B CNA-Biological Unknown 3.9 Entire length 2016 No DO Unknown 1.1 Mouth to RM 1.1 2016 No Fecal Coliform Unknown 3.9 Entire length 2016 No Blacklick Run WVMTB-18-B-2 Aluminum (d) Unknown 2.1 Entire length 2016 No pH Unknown 2.1 Entire length 2016 No Mudlick Run WVMTB-18-B-3 DO Unknown 1.1 Entire length 2016 No Fecal Coliform Unknown 1.1 Entire length 2016 No Grand Camp Run WVMTB-18-C Aluminum (trout) (d) Unknown 7.0 Entire length 2016 No Fecal Coliform Unknown 7.0 Entire length 2016 No Laurel Fork/French Creek WVMTB-18-D Fecal Coliform Unknown 7.6 Entire length 2016 No JA2812 List Page 22 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 186 of Filed235 07/07/16 Page 72 of 279 PageID #: 4084 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Morgan Run WVMTB-18-F Fecal Coliform Unknown 1.3 Entire length 2016 No Iron Unknown 1.3 Entire length 2016 No Grub Hollow WVMTB-18-G Fecal Coliform Unknown 1.5 Entire length 2016 No Iron Unknown 1.5 Entire length 2016 No Brush Run WVMTB-18-H Fecal Coliform Unknown 4.5 Entire length 2016 No Slab Camp Fork WVMTB-18-I Fecal Coliform Unknown 4.6 Entire length 2016 No Iron Unknown 4.6 Entire length 2016 No Left Fork/French Creek WVMTB-18-K Fecal Coliform Unknown 2.5 Entire length 2016 No Trubie Run WVMTB-19 Fecal Coliform Unknown 2.9 Entire length 2016 No Sawmill Run WVMTB-20 CNA-Biological Unknown 1.6 Entire length 2016 Yes Fecal Coliform Unknown 1.6 Entire length 2016 No Iron Unknown 1.6 Entire length 2016 No UNT/Sawmill Run RM 0.23 WVMTB-20-A Selenium Unknown 1.1 Entire length 2016 Yes Laurel Run/Buckhannon River WVMTB-24 Fecal Coliform Unknown 2.5 Entire length 2016 No Tenmile Creek WVMTB-25 CNA-Biological Unknown 4.4 Entire length 2016 No Manganese Unknown 4.4 Entire length 2016 No Right Fork/Tenmile Creek WVMTB-25-A Fecal Coliform Unknown 4.0 Entire length 2016 No Swamp Run WVMTB-29 CNA-Biological Unknown 1.7 Entire length 2016 No Right Fork/Buckhannon River WVMTB-31 CNA-Biological Unknown 10.2 Mouth to RM 10.2 2025 No UNT/Right Fork RM WVMTB-31-K pH Unknown 1.3 Entire length 2016 No 12.18/Buckhannon River Laurel Run/Tygart Valley River WVMT-32 Fecal Coliform Unknown 6.2 Entire length 2016 No Smooth Rock Lick Run WVMTB-32-A pH Unknown 2.0 Entire length 2016 Yes Bearcamp Run WVMTB-32-D pH Unknown 5.5 Entire length 2016 Yes Beech Run WVMTB-32-H CNA-Biological Unknown 5.2 Entire length 2025 No Middle Fork River WVMTM CNA-Biological Unknown 10.9 RM 2.9 to RM 19.8 2016 No Iron Unknown 11.2 RM 11.7 to RM 28.9 (Cassity Fk) 2016 No JA2813 List Page 23 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 187 of Filed235 07/07/16 Page 73 of 279 PageID #: 4085 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Hooppole Run WVMTM-3 CNA-Biological Unknown 1.6 Entire length 2016 Yes Iron Unknown 1.6 Entire length 2016 No Service Run WVMTM-5 pH Unknown 1.0 Entire length 2016 Yes Hell Run WVMTM-6 Aluminum (trout) (d) Unknown 3.2 Entire length 2016 No Short Run WVMTM-7 Aluminum (trout) (d) Unknown 1.7 Entire length 2016 No pH Unknown 1.7 Entire length 2016 Yes UNT/White Oak Run RM 0.44 WVMTM-8-A Aluminum (d) Unknown 1.1 Entire length 2016 No pH Unknown 1.1 Entire length 2016 No Gum Run WVMTM-9 Fecal Coliform Unknown 2.5 Entire length 2016 No UNT/Gum Run RM 1.18 WVMTM-9-B Fecal Coliform Unknown 0.6 Entire length 2016 No Laurel Creek/Middle Fork River WVMTM-10 Fecal Coliform Unknown 5.6 Mouth to RM 3.7 2016 No Brook Run WVMTM-10-A Aluminum (trout) (d) Unknown 3.2 Entire length 2016 No CNA-Biological Unknown 3.2 Entire length 2016 No Fecal Coliform Unknown 3.2 Entire length 2016 No pH Unknown 3.2 Entire length 2016 No Right Fork/Middle Fork River WVMTM-11 Fecal Coliform Unknown 12.2 Mouth to RM 12.2 2016 No Iron (trout) Unknown 7.0 Mouth to RM 7 2016 Yes Jenks Fork WVMTM-11-E pH Unknown 6.6 RM 3.1 to HW 2016 No Kettle Run WVMTM-12 Aluminum (d) Unknown 2.4 Entire length 2016 No pH Unknown 2.4 Entire length 2016 No Lick Run WVMTM-15 pH Unknown 2.0 Entire length 2016 No Cassity Fork WVMTM-16 Aluminum (d) Unknown 2.0 Mouth to RM 2.0 2016 Yes Aluminum (trout) (d) Unknown 1.7 RM 2.0 to RM 3.7 2016 Yes Beryllium Unknown 2.0 Mouth to RM 2.0 2016 No CNA-Biological Unknown 6.5 Entire length 2016 No pH Unknown 4.5 RM 2.0 to HW 2016 Yes Panther Run WVMTM-16-A Aluminum (trout) (d) Unknown 5.5 RM 0.25 to HW 2016 No JA2814 List Page 24 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 188 of Filed235 07/07/16 Page 74 of 279 PageID #: 4086 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/Panther Run RM 0.62 WVMTM-16-A-1 Aluminum (trout) (d) Unknown 3.6 Mouth to RM 0.8 2016 No pH Unknown 3.6 RM 0.8 to HW 2016 No Mulberry Fork WVMTM-16-B pH Unknown 2.5 Entire length 2016 No Three Forks Run WVMTM-17 CNA-Biological Unknown 2.6 Entire length 2016 Yes Stonecoal Run WVMTM-20 Aluminum (trout) (d) Unknown 1.6 Mouth to RM 1.6 2016 No pH Unknown 3.2 Entire length 2016 No Pleasant Run WVMTM-21 CNA-Biological Unknown 2.3 Entire length 2016 Yes pH Unknown 2.3 Entire length 2016 No Birch Fork WVMTM-25-A Aluminum (trout) (d) Unknown 1.6 Entire length 2016 No pH Unknown 1.6 Entire length 2016 No Rocky Run WVMTM-26-B Aluminum (trout) (d) Unknown 5.8 Entire length 2016 No pH Unknown 4.0 Mouth to RM 4.0 2016 No UNT/Tygart Valley River RM WVMT-33.6 Iron Unknown 0.9 Entire length 2016 No 58.40 Mill Creek WVMT-35 CNA-Biological Unknown 4.9 Entire length 2016 No DO Unknown 4.9 Entire length 2016 No Fecal Coliform Unknown 4.9 Entire length 2016 No Iron (trout) Unknown 4.9 Entire length 2016 No Shooks Run WVMT-35.5 CNA-Biological Unknown 1.0 Entire length 2016 No Fecal Coliform Unknown 1.0 Entire length 2016 No Island Run WVMT-36 CNA-Biological Unknown 1.2 Entire length 2016 No Beaver Creek WVMT-37 Aluminum (d) Unknown 4.6 Entire length 2016 Yes Zebs Creek WVMT-38 CNA-Biological Unknown 1.3 Mouth to RM 1.3 2016 No Fecal Coliform Unknown 4.2 Entire length 2016 No Little Laurel Run WVMT-40-A Aluminum (trout) (d) Unknown 3.8 Entire length 2016 No pH Unknown 3.8 Entire length 2016 Yes JA2815 List Page 25 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 189 of Filed235 07/07/16 Page 75 of 279 PageID #: 4087 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/Tygart Valley River RM WVMT-40.5 Aluminum (d) Unknown 1.4 Entire length 2016 No 72.55 Grassy Run WVMT-41 Aluminum (d) Unknown 2.8 Entire length 2016 Yes CNA-Biological Unknown 2.8 Entire length 2016 No Roaring Creek WVMT-42 Aluminum (d) Unknown 7.7 Mouth to RM 7.7 2016 Yes UNT/Roaring Creek RM 4.09 WVMT-42-0.8A Aluminum (d) Unknown 1.2 Entire length 2016 No CNA-Biological Unknown 1.2 Entire length 2016 No Iron Unknown 1.2 Entire length 2016 No pH Unknown 1.2 Entire length 2016 Yes Flatbush Fork WVMT-42-B Aluminum (trout) (d) Unknown 4.9 Entire length 2016 No pH Unknown 4.9 Entire length 2016 No UNT/Flatbush Fork RM 0.78 WVMT-42-B-0.5 Aluminum (d) Unknown 1.4 Entire length 2016 No pH Unknown 1.4 Entire length 2016 No UNT/Flatbush Fork RM 1.80 WVMT-42-B-1 Aluminum (d) Unknown 1.4 Entire length 2016 No pH Unknown 1.4 Entire length 2016 No UNT/Roaring Creek RM 11.0 WVMT-42-E pH Unknown 1.1 Entire length 2016 No UNT/Tygart Valley River RM WVMT-42.5 Fecal Coliform Unknown 0.8 Entire length 2016 No 76.87 Iron Unknown 0.8 Entire length 2016 No Leading Creek WVMT-43 Fecal Coliform Unknown 17.4 Entire length 2016 No Iron Unknown 14.1 Mouth to RM 14.1 2016 No Craven Run WVMT-43-A CNA-Biological Unknown 5.6 Entire length 2016 Yes Fecal Coliform Unknown 5.6 Entire length 2016 No Davis Lick WVMT-43-H CNA-Biological Unknown 2.3 Mouth to RM 2.3 2016 Yes Fecal Coliform Unknown 3.8 Entire length 2016 No Iron Unknown 3.8 Entire length 2016 No Laurel Run WVMT-43-O Fecal Coliform Unknown 1.6 Mouth to RM 1.6 2016 No JA2816 List Page 26 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 190 of Filed235 07/07/16 Page 76 of 279 PageID #: 4088 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/Tygart Valley River RM WVMT-43.8 Iron Unknown 0.5 Entire length 2016 No 81.92 UNT/Tygart Valley River RM WVMT-43.9 Fecal Coliform Unknown 0.5 Entire length 2016 No 82.27 Iron Unknown 0.5 Entire length 2016 No Chenoweth Creek WVMT-45 CNA-Biological Unknown 2.8 Mouth to RM 2.8 2016 No Fecal Coliform Unknown 5.8 Entire length 2016 No Isner Creek WVMT-45-A Fecal Coliform Unknown 4.4 Entire length 2016 No Kings Run WVMT-48 Fecal Coliform Unknown 2.7 Entire length 2016 No Dodson Run WVMT-49 Fecal Coliform Unknown 3.6 Entire length 2016 No UNT/Tygart Valley River RM WVMT-51.8 Fecal Coliform Unknown 3.1 Entire length 2016 No 92.85 Iron Unknown 3.1 Entire length 2016 No Sea Run WVMT-56 Fecal Coliform Unknown 3.4 Entire length 2016 No Jones Run WVMT-58 Fecal Coliform Unknown 3.1 Entire length 2016 No Dry Run WVMT-63 Fecal Coliform Unknown 3.2 Entire length 2016 No Mill Creek WVMT-64 Fecal Coliform Unknown 8.4 Mouth to RM 8.4 2016 No UNT/Tygart Valley River RM WVMT-64.2 Fecal Coliform Unknown 1.5 Entire length 2016 No 105.69 Iron Unknown 1.5 Entire length 2016 No McCall Run WVMT-64-0.5A Fecal Coliform Unknown 1.0 Entire length 2016 No Right Fork/Mill Creek WVMT-64-A Fecal Coliform Unknown 5.4 Entire length 2016 No Meatbox Run WVMT-64-E Aluminum (trout) (d) Unknown 1.3 Entire length 2016 No pH Unknown 1.3 Entire length 2016 Yes Potatohole Fork WVMT-64-F Aluminum (trout) (d) Unknown 2.0 Entire length 2016 No pH Unknown 2.0 Entire length 2016 Yes JA2817 List Page 27 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 191 of Filed235 07/07/16 Page 77 of 279 PageID #: 4089 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) HYDROLOGIC GROUP C GAULEY WATERSHED - HUC# 05050005 1 Lake 2700 acres 42 streams 258 miles Summersville Lake WVKG-(L1) Methylmercury Unknown 2700.0 Entire Lake 2026 No Scrabble Creek WVKG-1 CNA-Biological Mining 1.2 Mouth to RM 1.2 2021 Yes Left Fork/Scrabble Creek WVKG-1-A CNA-Biological Mining 2.2 Entire length 2021 Yes Big Creek WVKG-3 Selenium Unknown 3.1 Entire length 2026 Yes Twentymile Creek WVKG-5 Selenium Unknown 11.0 RM 7.4 to RM 18.4 2026 Yes Buckles Branch WVKG-5-A CNA-Biological Unknown 1.8 Entire length 2026 Yes UNT/Bells Creek RM 4.39 WVKG-5-B-5.1 Selenium Unknown 1.0 Entire length 2026 Yes Hardway Branch WVKG-5-K Selenium Unknown 2.0 Entire length 2026 Yes Peters Fork WVKG-5-K-1 Selenium Unknown 1.6 Entire length 2026 Yes Boardtree Branch WVKG-5-M CNA-Biological Mining 2.1 Entire length 2021 Yes Stillhouse Branch WVKG-5-O CNA-Biological Mining 1.9 Entire length 2021 Yes Robinson Fork WVKG-5-P CNA-Biological Mining 3.6 Entire length 2021 Yes Right Fork/Robinson Fork WVKG-5-P-1 CNA-Biological Unknown 1.4 Entire length 2021 Yes Meadow River WVKG-19 Fecal Coliform Unknown 68.8 Entire length 2016 Yes UNT/Meadow Creek RM 5.37 WVKG-19-P-0.8 Iron Unknown 0.9 Entire length 2016 Yes Otter Creek WVKG-19-W Iron Unknown 6.5 Entire length 2016 Yes UNT/McMillion Creek RM 4.16 WVKG-26-I-0.6 Selenium Unknown 1.7 Entire length 2026 No Crooked Run WVKG-26-O-1 Selenium Unknown 1.1 Entire length 2026 Yes Big Beaver Creek WVKG-30 Selenium Unknown 3.1 RM 13.3 to HW 2026 Yes Left Fork/Big Beaver Creek WVKG-30-I CNA-Biological Unknown 1.9 Entire length 2026 No UNT/Left Fork RM 0.77/Big WVKG-30-I-2 CNA-Biological Unknown 1.0 Entire length 2026 No Beaver Creek Board Fork WVKG-30-Q Selenium Unknown 2.8 Mouth to RM 2.8 2026 Yes O'brien Fork WVKG-30-S Selenium Unknown 4.0 Entire length 2026 Yes JA2818 List Page 28 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 192 of Filed235 07/07/16 Page 78 of 279 PageID #: 4090 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Jims Branch WVKG-32-G Iron (trout) Unknown 4.6 Entire length 2021 Yes Elklick Run WVKG-34-G-5 Iron (trout) Unknown 1.9 Entire length 2021 Yes North Fork/Cherry River WVKG-34-H Aluminum (trout) (d) Unknown 21.6 Entire length 2021 Yes Desert Branch WVKG-34-H-2 pH Unknown 1.9 Entire length 2021 Yes Hunters Run WVKG-34-H-4 pH Unknown 2.7 Entire length 2026 Yes Rabbit Run WVKG-34-H-11 pH Unknown 1.4 Entire length 2021 Yes Bear Run WVKG-34-H-14 pH Unknown 2.2 Entire length 2021 Yes Cranberry River WVKGC Aluminum (trout) (d) Unknown 27.6 Entire length 2021 Yes Bear Run WVKGC-6 pH Unknown 3.1 Entire length 2026 Yes Mill Branch WVKGC-11 pH Unknown 1.7 Entire length 2026 Yes Queer Branch WVKGC-13 pH Unknown 2.1 Entire length 2026 Yes Hanging Rock Branch WVKGC-15 pH Unknown 1.6 Entire length 2026 Yes Rough Run WVKGC-17 pH Unknown 2.7 Entire length 2026 Yes Big Ditch Run WVKG-46 CNA-Biological Unknown 3.1 Entire length 2021 Yes Williams River WVKGW Aluminum (trout) (d) Unknown 29.8 RM 3.0 to HW 2021 Yes Middle Fork/Williams River WVKGW-10 Aluminum (trout) (d) Unknown 12.9 Entire length 2021 Yes Little Fork WVKGW-10-A pH Unknown 3.4 Entire length 2026 Yes Beechy Run WVKGW-10-C pH Unknown 3.9 Entire length 2021 Yes UNT/Williams River RM 15.86 WVKGW-12.4 CNA-Biological Unknown 1.4 Entire length 2026 Yes Sugar Creek WVKGW-21 Aluminum (trout) (d) Unknown 3.8 Entire length 2021 Yes JA2819 List Page 29 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 193 of Filed235 07/07/16 Page 79 of 279 PageID #: 4091 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) LOWER GUYANDOTTE WATERSHED - HUC# 05070102 1 Lake 17 acres 60 streams 210 miles Tanyard Branch WVOGM-1.5 CNA-Biological Unknown 1.5 Entire length 2021 Yes Little Cabell Creek WVOGM-3 CNA-Biological Unknown 3.3 Entire length 2021 Yes Big Cabell Creek WVOGM-4 CNA-Biological Unknown 7.4 Entire length 2021 Yes Fudges Creek WVOGM-6 CNA-Biological Unknown 6.7 Entire length 2021 Yes Wire Branch WVOGM-6-0.5A CNA-Biological Unknown 1.9 Entire length 2021 Yes Mill Creek WVOGM-8 CNA-Biological Unknown 4.2 Entire length 2021 Yes Left Fork/Mill Creek WVOGM-8-B CNA-Biological Unknown 3.7 Entire length 2026 No Right Fork/Mill Creek WVOGM-8-C CNA-Biological Unknown 2.8 Entire length 2021 Yes Johns Branch WVOGM-11 CNA-Biological Unknown 2.5 Entire length 2021 Yes Indian Fork WVOGM-12-A CNA-Biological Unknown 6.5 Entire length 2021 Yes Charley Creek WVOGM-14 CNA-Biological Unknown 8.7 Entire length 2021 Yes Trace Creek WVOGM-19 CNA-Biological Unknown 3.0 Entire length 2021 Yes Trace Fork WVOGM-20 CNA-Biological Unknown 17.9 RM 6.4 to HW 2021 Yes Coon Creek WVOGM-20-A CNA-Biological Unknown 3.3 Entire length 2021 Yes Tango Branch WVOGM-20-T-2 CNA-Biological Unknown 1.6 Entire length 2026 No Straight Fork WVOGM-22-A CNA-Biological Unknown 1.7 Mouth to RM 1.7 2021 Yes Meadow Branch WVOGM-25-A CNA-Biological Unknown 1.8 Entire length 2021 Yes Straight Fork WVOGM-25-H CNA-Biological Unknown 7.4 Entire length 2021 Yes Valley Fork WVOGM-25-H-1 CNA-Biological Unknown 2.9 Entire length 2021 Yes Sugartree Fork WVOGM-25-I CNA-Biological Unknown 1.4 Mouth to RM 1.4 2021 Yes Big Creek WVOGM-35 CNA-Biological Unknown 1.8 Mouth to RM 1.8 2021 Yes Parsner Creek WVOGM-38 CNA-Biological Unknown 3.3 Entire length 2026 Yes Left Fork/Mud River WVOGM-39 CNA-Biological Unknown 7.2 RM 5.0 to HW 2021 Yes Stinson Branch WVOGM-39-E CNA-Biological Unknown 2.6 Entire length 2021 Yes Upton Branch WVOGM-40 CNA-Biological Unknown 2.9 Entire length 2021 Yes Berry Branch WVOGM-44 Selenium Unknown 2.8 Entire length 2026 Yes JA2820 List Page 30 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 194 of Filed235 07/07/16 Page 80 of 279 PageID #: 4092 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Mullins Branch WVOGM-45 Selenium Unknown 1.2 Entire length 2026 Yes Ballard Fork WVOGM-49 CNA-Biological Unknown 2.3 Entire length 2021 Yes Lukey Fork WVOGM-50 Selenium Unknown 1.3 Mouth to RM 1.3 2026 Yes Davis Creek WVOG-3 CNA-Biological Unknown 2.8 Entire length 2021 Yes Edens Branch WVOG-3-0.5A CNA-Biological Unknown 1.0 Entire length 2021 Yes Barboursville Lake WVOG-5.3-(L1) Chlorophyll-A Unknown 17.0 Entire Lake 2026 No Phosphorus Unknown 17.0 Entire Lake 2026 No Smith Creek WVOG-11 CNA-Biological Unknown 3.7 Entire length 2021 Yes Cavill Creek WVOG-12 CNA-Biological Unknown 2.6 Entire length 2021 Yes Madison Creek WVOG-17 CNA-Biological Unknown 4.0 Entire length 2021 Yes Twomile Creek WVOG-24 CNA-Biological Unknown 3.8 Entire length 2021 Yes Fourmile Creek WVOG-27 CNA-Biological Unknown 8.0 Entire length 2021 Yes Ninemile Creek WVOG-31 CNA-Biological Unknown 7.1 Entire length 2021 Yes Tenmile Creek WVOG-32 CNA-Biological Unknown 7.5 Entire length 2021 Yes Lick Branch WVOG-34-A CNA-Biological Unknown 2.3 Entire length 2021 Yes Aarons Creek WVOG-35 CNA-Biological Unknown 3.0 Entire length 2021 Yes Laurel Creek WVOG-38-D CNA-Biological Unknown 2.3 Mouth to RM 2.3 2021 Yes Chestnut Oak Creek WVOG-38-D-4 Selenium Unknown 1.9 Entire length 2026 No Right Fork/Laurel Creek WVOG-38-D-5 Selenium Unknown 1.3 Entire length 2026 No Fawn Hollow WVOG-38-M Selenium Unknown 0.9 Entire length 2026 Yes Dry Run WVOG-41 CNA-Biological Unknown 1.3 Entire length 2021 Yes Short Bend Fork WVOG-42-A CNA-Biological Unknown 1.2 Entire length 2021 Yes Laurel Fork WVOG-42-C CNA-Biological Unknown 1.7 Entire length 2021 Yes West Fork/Big Harts Creek WVOG-44-A CNA-Biological Unknown 2.4 Entire length 2021 Yes Smokehouse Fork WVOG-44-E CNA-Biological Unknown 8.7 Entire length 2021 Yes Buck Fork WVOG-44-G CNA-Biological Unknown 5.7 Entire length 2021 Yes Bulwark Branch WVOG-44-K CNA-Biological Unknown 1.6 Entire length 2021 Yes JA2821 List Page 31 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 195 of Filed235 07/07/16 Page 81 of 279 PageID #: 4093 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Vickers Branch WVOG-49-C CNA-Biological Unknown 1.2 Entire length 2021 Yes UNT/Big Creek RM 3.28 WVOG-49-C.1 CNA-Biological Unknown 0.3 Entire length 2021 Yes Trace Fork WVOG-49-D CNA-Biological Unknown 5.9 Entire length 2021 Yes Hurricane Branch WVOG-49-D-1 CNA-Biological Unknown 1.9 Entire length 2021 Yes Garrett Fork WVOG-49-E CNA-Biological Unknown 4.0 Entire length 2021 Yes Perrys Branch WVOG-49-E-1 CNA-Biological Unknown 1.0 Entire length 2021 Yes South Fork/Crawley Creek WVOG-51-G.5 CNA-Biological Unknown 1.8 Entire length 2021 Yes Fowler Branch WVOG-51.5 CNA-Biological Unknown 1.1 Entire length 2021 Yes Mill Creek WVOG-59 CNA-Biological Unknown 2.4 Entire length 2021 Yes MIDDLE OHIO NORTH WATERSHED - HUC# 05030201 2 streams 62 miles Ohio River (Middle North) WVO-mn Dioxin Unknown 58.4 MP 172.2 to MP 113.8 (Entire 2020 Yes length) Fecal Coliform Unknown 40.1 MP 172.2 to MP 163.1; 157.7- 2016 Yes 146.9; 141.5-136.1; 131.3-127.0; 124.3-113.8 Iron Unknown 10.4 MP 172.2 to MP 161.8 2018 Yes Scheidler Run WVO-69-C-5 CNA-Biological Unknown 3.6 Entire length 2026 Yes JA2822 List Page 32 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 196 of Filed235 07/07/16 Page 82 of 279 PageID #: 4094 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) MIDDLE OHIO SOUTH WATERSHED - HUC# 05030202 5 Lake 612 acres 1 streams 93 miles Ohio River (Middle South) WVO-ms Dioxin Unknown 65.8 Ohio R from MP 238.0 to MP 2020 Yes 172.2 (mouth of Muskingham R) Fecal Coliform Unknown 79.9 MP 265.7 to MP 203.2; 193.3- 2016 Yes 188.4; 184.7-172.2 Iron Unknown 93.5 MP 265.7 to MP 172.2 (Entire 2018 Yes length) McClintic Ponds WVO-21-(L1) Phosphorus Unknown 61.0 Entire Lake 2026 No Rollins Lake WVO-32-(L1) Chlorophyll-A Unknown 41.0 Entire Lake 2026 No Phosphorus Unknown 41.0 Entire Lake 2026 No O'Brien Lake (Mill Creek #13) WVO-32-L-(L1) Chlorophyll-A Unknown 217.0 Entire Lake 2026 No Phosphorus Unknown 217.0 Entire Lake 2026 No Elk Fork Lake WVO-32-M-(L1) Methylmercury Unknown 278.0 Entire Lake 2026 Yes Turkey Run Lake WVO-37-(L1) Chlorophyll-A Unknown 15.0 Entire Lake 2026 No Phosphorus Unknown 15.0 Entire Lake 2026 No POTOMAC DIRECT DRAINS WATERSHED - HUC# 02070004 11 streams 73 miles Rattlesnake Run WVP-2 CNA-Biological Unknown 4.4 Entire length 2021 Yes Rockymarsh Run WVP-3 Fecal Coliform Unknown 4.7 Entire length 2021 Yes UNT/Rockymarsh Run RM 3.99 WVP-3-B Fecal Coliform Unknown 2.9 Entire length 2016 Yes Opequon Creek WVP-4 Iron (trout) Unknown 30.7 Entire length 2026 No Nitrite (trout) Unknown 9.2 Mouth to RM 9.2 2021 Yes UNT/Opequon Creek RM 10.21 WVP-4-C.4 CNA-Biological Unknown 1.0 Entire length 2021 Yes Roaring Run WVP-9-B-1 CNA-Biological Unknown 2.9 Entire length 2021 Yes Middle Fork/Sleepy Creek WVP-9-E CNA-Biological Unknown 10.2 RM 1.5 to HW 2021 Yes JA2823 List Page 33 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 197 of Filed235 07/07/16 Page 83 of 279 PageID #: 4095 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) South Fork/Indian Run WVP-9-G-2 pH Unknown 3.0 Entire length 2026 Yes Warm Spring Run WVP-10 CNA-Biological Unknown 10.3 Entire length 2021 Yes Fecal Coliform Unknown 10.3 Entire length 2016 Yes UNT/Warm Spring Run RM 4.97 WVP-10-G Fecal Coliform Unknown 0.9 Entire length 2026 Yes UNT/Warm Spring Run RM 7.96 WVP-10-J CNA-Biological Unknown 1.6 Entire length 2026 Yes TUG FORK WATERSHED - HUC# 05070201 61 streams 402 miles Tug Fork WVBST CNA-Biological Unknown 87.5 RM 27.5 to HW 2021 Yes Fecal Coliform Unknown 155.0 Entire length 2021 Yes Mill Creek WVBST-1 CNA-Biological Unknown 8.7 Entire length 2021 Yes Lost Creek WVBST-7 CNA-Biological Unknown 4.5 Entire length 2021 Yes Silver Creek WVBST-16 CNA-Biological Unknown 2.5 Entire length 2021 Yes Jennie Creek WVBST-17 CNA-Biological Unknown 12.0 Entire length 2026 Yes Marrowbone Creek WVBST-19 CNA-Biological Unknown 14.1 Entire length 2026 Yes Parsley Big Branch WVBST-23 CNA-Biological Unknown 2.2 Entire length 2021 Yes Pigeon Creek WVBST-24 CNA-Biological Unknown 32.0 Entire length 2026 Yes Big Branch WVBST-24-B Selenium Unknown 3.0 Mouth to RM 3.0 2026 Yes Right Fork/Laurel Fork/Pigeon WVBST-24-E-1 CNA-Biological Unknown 6.7 Mouth to RM 6.74 2026 No Middle Fork/Spruce Fork WVBST-24-E-2-A-1 Selenium Unknown 2.2 Entire length 2026 Yes UNT/Laurel Fork RM 9.61 WVBST-24-E-7.3 CNA-Biological Unknown 0.7 Entire length 2026 No Right Fork/Trace Fork WVBST-24-K-4 Selenium Unknown 3.0 Entire length 2026 Yes Left Fork/Right Fork/Trace Fork WVBST-24-K-4-A Selenium Unknown 1.9 Entire length 2021 Yes Left Fork/Elk Creek WVBST-24-N-4 CNA-Biological Unknown 2.6 Entire length 2026 No Middle Fork/Elk Creek WVBST-24-N-5 Selenium Unknown 1.4 RM 2.4 to HW 2026 Yes UNT/Oldfield Branch RM 0.46 WVBST-24-T-1 Selenium Unknown 0.6 Entire length 2021 Yes JA2824 List Page 34 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 198 of Filed235 07/07/16 Page 84 of 279 PageID #: 4096 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Slick Rock Branch WVBST-24-AA Selenium Unknown 1.4 Entire length 2021 Yes Ferrell Branch WVBST-39 CNA-Biological Unknown 1.7 Entire length 2026 No Sulphur Creek WVBST-41 CNA-Biological Unknown 1.7 Entire length 2021 Yes Wolfpen Fork WVBST-43-B CNA-Biological Unknown 1.6 Entire length 2026 No Millseat Branch WVBST-43-B.5 CNA-Biological Unknown 1.4 Mouth to RM 1.41 2026 No Grapevine Fork WVBST-46-B CNA-Biological Unknown 0.2 Mouth to RM 0.24 2026 No UNT/Grapevine Fork RM 0.22 WVBST-46-B-1 CNA-Biological Unknown 1.0 Entire length 2026 No Ben Creek WVBST-52 CNA-Biological Unknown 8.2 Entire length 2026 Yes Selenium Unknown 8.2 Entire length 2021 Yes White Oak Hollow WVBST-52-G.5 CNA-Biological Unknown 0.8 Entire length 2026 Yes Bull Creek WVBST-57 Fecal Coliform Unknown 4.9 Entire length 2021 Yes Left Fork/Bull Creek WVBST-57-B Fecal Coliform Unknown 2.0 Entire length 2021 Yes Mohawk Branch WVBST-58 CNA-Biological Unknown 1.1 Entire length 2026 No Greenbrier Fork WVBST-60-A CNA-Biological Unknown 3.5 Entire length 2021 Yes Horse Creek WVBST-63 CNA-Biological Unknown 4.6 Entire length 2021 Yes Dry Fork WVBST-70 CNA-Biological Unknown 34.5 Entire length 2021 Yes Fecal Coliform Unknown 34.5 Entire length 2021 Yes Grapevine Branch WVBST-70-F CNA-Biological Unknown 1.8 Entire length 2021 Yes Bradshaw Creek WVBST-70-M Fecal Coliform Unknown 5.5 Entire length 2021 Yes Wolfpen Branch WVBST-70-M-3 CNA-Biological Unknown 1.6 Entire length 2021 Yes Little Slate Creek WVBST-70-N CNA-Biological Unknown 4.5 Mouth to RM 4.5 2026 No Fecal Coliform Unknown 6.8 Entire length 2021 Yes Pruett Branch WVBST-70-S CNA-Biological Unknown 1.4 Entire length 2026 No Jacobs Fork WVBST-70-W Fecal Coliform Unknown 10.6 Entire length 2021 Yes Mountain Fork WVBST-70-W-1-A CNA-Biological Unknown 4.2 Entire length 2021 Yes North Fork/Big Creek WVBST-70-W-1-F Selenium Unknown 2.7 Entire length 2026 No Middle Fork/Big Creek WVBST-70-W-1-G CNA-Biological Unknown 1.6 Entire length 2021 Yes JA2825 List Page 35 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 199 of Filed235 07/07/16 Page 85 of 279 PageID #: 4097 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Beech Fork WVBST-70-AA CNA-Biological Unknown 1.0 Entire length 2021 Yes Clear Fork WVBST-76 Fecal Coliform Unknown 10.5 Entire length 2021 Yes Spice Creek WVBST-78 CNA-Biological Unknown 5.7 Entire length 2021 Yes Badway Branch WVBST-78-G CNA-Biological Unknown 1.3 Entire length 2021 Yes Davy Branch WVBST-85 CNA-Biological Unknown 4.1 Entire length 2021 Yes Fecal Coliform Unknown 4.1 Entire length 2021 Yes Upper Shannon Branch WVBST-95 CNA-Biological Unknown 2.4 Entire length 2021 Yes Browns Creek WVBST-98 CNA-Biological Unknown 5.1 Entire length 2021 Yes Fecal Coliform Unknown 5.1 Entire length 2021 Yes Puncheoncamp Branch WVBST-98-A CNA-Biological Unknown 3.0 Entire length 2021 Yes Trail Fork WVBST-98-B Fecal Coliform Unknown 2.4 Entire length 2021 Yes Elkhorn Creek WVBST-99 CNA-Biological Unknown 19.5 Mouth to RM 19.5 2026 Yes Iron (trout) Unknown 22.7 Entire length 2021 Yes Clark Branch WVBST-99-J Selenium Unknown 1.8 Entire length 2026 Yes North Fork/Elkhorn Creek WVBST-99-L Fecal Coliform Unknown 8.0 Entire length 2021 Yes Bearwallow Branch WVBST-99-L-2 Selenium Unknown 2.8 Entire length 2026 Yes Rock Narrows Branch WVBST-103 CNA-Biological Unknown 1.7 Entire length 2021 Yes Sandlick Creek WVBST-109 Selenium Unknown 3.0 RM 2.3 to HW 2021 Yes UNT/Left Fork RM 0.89/Sandlick WVBST-109-B-3 Selenium Unknown 1.2 Entire length 2026 Yes Creek UNT/Tug Fork RM 145.75 WVBST-114.2 Selenium Unknown 0.9 Entire length 2026 Yes Little Creek WVBST-120 Fecal Coliform Unknown 4.2 Entire length 2021 Yes Ballard Harmon Branch WVBST-122 Selenium Unknown 1.4 RM 0.6 to HW 2026 Yes UNT/Ballard Harmon Branch RM WVBST-122-A Selenium Unknown 0.5 Entire length 2026 Yes 1.49 JA2826 List Page 36 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 200 of Filed235 07/07/16 Page 86 of 279 PageID #: 4098 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) HYDROLOGIC GROUP D GREENBRIER WATERSHED - HUC# 05050003 2 streams 39 miles Greenbrier River WVKNG CNA-Algae Unknown 37.9 RM 12.1 (Mouth or Stony) to RM 2022 Yes 50.0 (mouth of Howard) UNT/Stony Run RM 1.12 WVKNG-22-E-1-B-1-B CNA-Biological Unknown 1.5 Entire length 2022 Yes LITTLE KANAWHA WATERSHED - HUC# 05030203 1 Lake 968 acres 31 streams 371 miles Little Kanawha River WVLK Fecal Coliform Unknown 132.6 Mouth to RM 132.6 (Burnsville 2022 Yes Dam) Burnsville Lake WVLK-(L1) Methylmercury Unknown 968.0 Entire Lake 2027 Yes Berry Run WVLK-2-A Fecal Coliform Unknown 2.7 Entire length 2027 Yes Gillespie Run WVLK-2-D Fecal Coliform Unknown 3.6 Entire length 2027 Yes Mill Run WVLK-4 Fecal Coliform Unknown 2.3 Entire length 2027 Yes Walker Creek WVLK-10 CNA-Biological Unknown 15.6 Entire length 2022 Yes Hughes River WVLKH Fecal Coliform Unknown 13.8 Entire length 2017 Yes Iron Unknown 13.8 Entire length 2017 Yes Goose Creek WVLKH-4 CNA-Biological Unknown 1.5 Mouth to RM 1.5 2017 Yes South Fork/Hughes River WVLKH-9 CNA-Biological Unknown 30.0 RM 1.9 to RM 32.0 2017 Yes Indian Creek WVLKH-9-J CNA-Biological Unknown 7.5 Mouth to RM 7.5 2017 Yes Left Fork/Slab Creek WVLKH-9-W-4 CNA-Biological Unknown 3.5 Entire length 2027 Yes Bone Creek WVLKH-9-X CNA-Biological Unknown 7.8 Entire length 2017 Yes Middle Fork/South Fork/Hughes WVLKH-9-AA CNA-Biological Unknown 11.0 Entire length 2017 Yes River Beech Run WVLKH-10-R-4-A CNA-Biological Unknown 1.3 Entire length 2017 Yes JA2827 List Page 37 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 201 of Filed235 07/07/16 Page 87 of 279 PageID #: 4099 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Tanner Run WVLK-31-X Fecal Coliform Unknown 4.4 Entire length 2022 Yes Laurel Run WVLKW-15-F CNA-Biological Unknown 5.2 Entire length 2022 Yes Sang Run WVLKW-15-I-9 CNA-Biological Unknown 1.6 Entire length 2022 Yes Leading Creek WVLK-40 CNA-Biological Unknown 5.6 Mouth to RM 5.6 2022 Yes Rush Run WVLKS-4 CNA-Biological Unknown 3.0 Entire length 2022 Yes Right Fork/Steer Creek WVLKS-9 CNA-Biological Unknown 25.4 Entire length 2022 Yes Tanner Fork WVLKS-9-D CNA-Biological Unknown 4.0 Entire length 2027 Yes Left Fork/Steer Creek WVLKS-10 CNA-Biological Unknown 24.5 Entire length 2022 Yes White Oak Run WVLKS-10-D CNA-Biological Unknown 1.9 Entire length 2022 Yes Steer Run WVLKS-10-E CNA-Biological Unknown 5.1 Entire length 2022 Yes Bender Run WVLKS-10-P CNA-Biological Unknown 2.5 Entire length 2022 Yes Tanner Creek WVLK-66 CNA-Biological Unknown 15.3 Entire length 2022 Yes Butchers Run WVLK-72-M CNA-Biological Unknown 2.5 Entire length 2022 Yes Sand Fork WVLK-75-N-5 CNA-Biological Unknown 5.1 Entire length 2022 Yes Copen Run WVLK-90 CNA-Biological Unknown 3.7 Mouth to RM 3.7 2022 Yes Right Fork/Little Kanawha River WVLK-115 pH Unknown 13.7 RM 0.4 to HW 2022 Yes UNT/Little Kanawha River RM WVLK-130.5 pH Unknown 2.6 Entire length 2022 Yes 165.34 Getout Run WVLK-131 pH Unknown 2.5 Entire length 2022 Yes JA2828 List Page 38 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 202 of Filed235 07/07/16 Page 88 of 279 PageID #: 4100 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) LOWER NEW WATERSHED - HUC# 05050004 11 streams 35 miles Wilson Branch WVKN-5-A-1 CNA-Biological Unknown 2.0 Entire length 2027 Yes Dempsey Branch WVKN-5-E CNA-Biological Unknown 2.6 Entire length 2027 No Fern Creek WVKN-11 Fecal Coliform Unknown 6.2 Entire length 2027 No pH Unknown 6.2 Entire length 2022 Yes Hamilton Branch WVKN-22-D-1 CNA-Biological Unknown 2.9 Entire length 2022 Yes Soak Creek WVKN-26-K CNA-Biological Unknown 5.5 Entire length 2027 No UNT/ Soak Creek RM 1.98 WVKN-26-K-3 CNA-Biological Unknown 0.9 Entire length 2027 No Bowyer Creek WVKN-26-M CNA-Biological Unknown 4.4 Entire length 2022 Yes Squealing Fork WVKN-29-E-7 CNA-Biological Unknown 3.5 Entire length 2027 Yes UNT/Sal Willis Branch RM 0.73 WVKN-29-F.5-1 CNA-Biological Unknown 1.2 Entire length 2027 Yes Owens Branch WVKN-40 Fecal Coliform Unknown 2.4 Entire length 2027 Yes Tug Creek WVKN-43 Fecal Coliform Unknown 3.2 Entire length 2027 Yes MONONGAHELA WATERSHED - HUC# 05020003 39 streams 194 miles Monongahela River (Upper) WVM-up Fecal Coliform Unknown 37.5 Entire length 2017 Yes Camp Run WVM-2.1 CNA-Biological Unknown 3.2 Entire length 2022 Yes UNT/Camp Run RM 0.79 WVM-2.1-A CNA-Biological Unknown 1.5 Entire length 2022 Yes Crooked Run WVM-2.5 CNA-Biological Unknown 5.4 Entire length 2022 Yes West Run WVM-3 CNA-Biological Unknown 6.4 Entire length 2022 Yes Robinson Run WVM-4 CNA-Biological Unknown 4.4 Entire length 2022 Yes Crafts Run WVM-4-A CNA-Biological Unknown 2.6 Entire length 2022 Yes UNT/Robinson Run RM 1.09 WVM-4-B CNA-Biological Unknown 1.2 Entire length 2022 Yes UNT/Robinson Run RM 4.09 WVM-4-F CNA-Biological Unknown 0.6 Entire length 2022 Yes Scotts Run WVM-6 CNA-Biological Unknown 6.0 Entire length 2022 Yes JA2829 List Page 39 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 203 of Filed235 07/07/16 Page 89 of 279 PageID #: 4101 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Wades Run WVM-6-A CNA-Biological Unknown 2.8 Entire length 2022 Yes Guston Run WVM-6-B CNA-Biological Unknown 2.6 Entire length 2022 Yes Dents Run WVM-7 CNA-Biological Unknown 8.5 Mouth to RM 8.5 2022 Yes Flaggy Meadow Run WVM-7-A CNA-Biological Unknown 1.0 Entire length 2022 Yes UNT/Dents Run RM 5.82 WVM-7-G CNA-Biological Unknown 1.7 Entire length 2022 Yes UNT/Dents Run RM 7.26 WVM-7-K CNA-Biological Unknown 1.4 Entire length 2027 No Hartman Run WVM-8-0.5A CNA-Biological Unknown 1.6 Entire length 2022 Yes UNT/Deep Hollow (Beulah WVM-8-A.7-2 Aluminum (d) Unknown 0.8 Entire length 2027 No Hollow) RM 0.94 pH Unknown 0.8 Entire length 2027 No UNT/Deckers Creek RM 18.48 WVM-8-J Lead Unknown 1.5 Entire length 2017 Yes Owl Creek WVM-10-D CNA-Biological Unknown 4.0 Entire length 2022 Yes UNT/Booths Creek RM 7.43 WVM-10-I CNA-Biological Unknown 3.1 Entire length 2022 Yes Flaggy Meadow Run WVM-14 CNA-Biological Unknown 3.0 Entire length 2022 Yes UNT/Flaggy Meadow Run RM WVM-14-D CNA-Biological Unknown 0.8 Entire length 2022 Yes 2.15 Indian Creek WVM-17 CNA-Biological Unknown 9.4 Entire length 2022 Yes Little Indian Creek WVM-17-A CNA-Biological Unknown 5.6 Entire length 2022 Yes Snider Run WVM-17-A-1 CNA-Biological Unknown 2.8 Entire length 2022 Yes UNT/Little Indian Creek RM 3.19 WVM-17-A-6 CNA-Biological Unknown 0.6 Entire length 2022 Yes UNT/Indian Creek RM 7.23 WVM-17-E CNA-Biological Unknown 1.5 Entire length 2022 Yes Paw Paw Creek WVM-22 CNA-Biological Unknown 14.4 Entire length 2022 Yes Sugar Run WVM-22-K CNA-Biological Unknown 2.2 Entire length 2022 Yes Harvey Run WVM-22-L CNA-Biological Unknown 1.4 Entire length 2022 Yes JA2830 List Page 40 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 204 of Filed235 07/07/16 Page 90 of 279 PageID #: 4102 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/Monongahela River RM WVM-22.9 Aluminum (d) Unknown 0.5 Entire length 2027 Yes 126.94 pH Unknown 0.5 Entire length 2027 Yes Buffalo Creek WVM-23 CNA-Biological Unknown 30.2 Entire length 2022 Yes Moody Run WVM-23-C CNA-Biological Unknown 1.2 Mouth to RM 1.2 2022 Yes Pyles Fork WVM-23-O CNA-Biological Unknown 11.0 Entire length 2022 Yes Flat Run WVM-23-O-3 CNA-Biological Unknown 5.0 Entire length 2022 Yes Llewellyn Run WVM-23-O-3-A CNA-Biological Unknown 2.6 Entire length 2022 Yes Whetstone Run WVM-23-Q CNA-Biological Unknown 2.6 Entire length 2022 Yes UNT/Monongahela River RM WVM-25.9 CNA-Biological Unknown 1.2 Entire length 2022 Yes 128.55 UPPER NEW WATERSHED - HUC# 05050002 5 streams 78 miles Bluestone River WVKNB PCBs Unknown 67.1 Entire length 2017 Yes UNT/Jumping Branch RM 2.48 WVKNB-3-C-1-E CNA-Biological Unknown 0.9 Entire length 2022 Yes Widemouth Creek WVKNB-28 Iron (trout) Unknown 0.7 Mouth to RM 0.7 2022 Yes Belcher Branch WVKNB-30-C Selenium Unknown 2.2 Entire length 2027 Yes East River WVKN-60 CNA-Biological Unknown 6.9 RM 16.0 to HW 2022 Yes JA2831 List Page 41 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 205 of Filed235 07/07/16 Page 91 of 279 PageID #: 4103 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) HYDROLOGIC GROUP E BIG SANDY WATERSHED - HUC# 05070204 11 streams 62 miles Big Sandy River WVBS Iron Unknown 26.6 Entire length 2018 Yes Miller Creek WVBS-1 CNA-Biological Unknown 1.7 Entire length 2018 Yes Fecal Coliform Unknown 1.7 Entire length 2023 Yes Cedar Run WVBS-3 CNA-Biological Unknown 1.5 Entire length 2018 Yes Whites Creek WVBS-5 CNA-Biological Unknown 8.8 Entire length 2018 Yes Gragston Creek WVBS-6 CNA-Biological Unknown 6.5 Entire length 2018 Yes Elijah Creek WVBS-7 CNA-Biological Unknown 2.2 Entire length 2018 Yes Gilkerson Branch WVBS-7-B CNA-Biological Unknown 1.2 Entire length 2018 Yes Hurricane Creek WVBS-8 CNA-Biological Unknown 7.9 Entire length 2018 Yes Sugar Branch WVBS-8-0.7A CNA-Biological Unknown 0.8 Entire length 2018 Yes Tabor Creek WVBS-10 CNA-Biological Unknown 3.8 RM 1.0 to RM 4.8 2018 Yes Redhead Branch WVBS-13 CNA-Biological Unknown 0.7 Entire length 2018 Yes CACAPON WATERSHED - HUC# 02070003 7 streams 76 miles Cacapon River WVPC CNA-Algae Unknown 37.0 RM 39 (North R) to RM 76 (Rte 2023 Yes 259 bridge near Wardensville) Hiett Run WVPC-7-D CNA-Biological Unknown 5.7 Entire length 2018 Yes UNT/Bearwallow Creek RM 0.98 WVPC-7-F-1-B CNA-Biological Unknown 3.4 Entire length 2018 Yes UNT/Mill Branch RM 1.99 WVPC-12-B CNA-Biological Unknown 2.6 Entire length 2023 Yes Upper Cove Run WVPC-24-K CNA-Biological Unknown 1.2 Mouth to RM 1.2 2018 Yes Dawson Run WVP-18.5 CNA-Biological Unknown 2.9 Entire length 2023 Yes Little Cacapon River WVP-19 CNA-Biological Unknown 23.3 RM 5.7 to HW 2018 Yes JA2832 List Page 42 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 206 of Filed235 07/07/16 Page 92 of 279 PageID #: 4104 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) DUNKARD WATERSHED - HUC# 05020005 7 streams 21 miles UNT/Building Run RM 0.47 WVM-1-C-3-A-1 Selenium Unknown 0.4 Entire length 2023 Yes Miracle Run WVM-1-E CNA-Biological Mining 7.6 Entire length 2023 Yes UNT/Right Branch/Miracle Run WVM-1-E-2-C CNA-Biological Unknown 0.6 Entire length 2023 No RM 0.95 UNT/Miracle Run RM 4.89 WVM-1-E-4.7 Selenium Unknown 0.8 Entire length 2023 Yes Building Run WVM-1-E-5 CNA-Biological Mining 1.3 Entire length 2023 Yes West Virginia Fork/Dunkard WVM-1-F CNA-Biological Mining 5.8 Entire length 2023 Yes Creek South Fork/West Virginia WVM-1-F-7 CNA-Biological Mining 4.8 Entire length 2023 Yes Fork/Dunkard Creek LOWER OHIO WATERSHED - HUC# 05090101 15 streams 131 miles Ohio River (Lower) WVO-lo Fecal Coliform Unknown 48.8 MP 317.3 to MP 306.4; 303.6- 2016 Yes 265.7 Iron Unknown 13.5 MP 279.2 to MP 265.7 2018 Yes Fourpole Creek WVO-3 CNA-Biological Unknown 11.7 Entire length 2018 Yes Sevenmile Creek WVO-6 CNA-Biological Unknown 5.9 Entire length 2018 Yes Ninemile Creek WVO-7 CNA-Biological Unknown 7.0 Mouth to RM 7.0 2018 Yes Guyan Creek WVO-9 CNA-Biological Unknown 12.5 Mouth to RM 12.5 2018 Yes Spurlock Creek WVO-9-A CNA-Biological Unknown 5.5 Entire length 2018 Yes McCowan Branch WVO-9-B CNA-Biological Unknown 2.5 Entire length 2018 Yes UNT/Bear Hollow Creek RM 1.20 WVO-9-F-2 CNA-Biological Unknown 1.4 Entire length 2023 No Rocky Fork WVO-10-A CNA-Biological Unknown 2.7 Entire length 2018 Yes JA2833 List Page 43 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 207 of Filed235 07/07/16 Page 93 of 279 PageID #: 4105 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Mud Run WVO-10-D CNA-Biological Unknown 1.5 Mouth to RM 1.5 2018 Yes Sixteenmile Creek WVO-11 CNA-Biological Unknown 13.2 Mouth to RM 13.2 2018 Yes Stonecoal Run WVO-11-A CNA-Biological Unknown 2.5 Entire length 2018 Yes Crab Creek WVO-13 CNA-Biological Unknown 6.7 Mouth to RM 6.7 2018 Yes Mud Run WVO-13-A CNA-Biological Unknown 4.4 Entire length 2018 Yes Middle Fork/Crab Creek WVO-13-D CNA-Biological Unknown 4.3 Entire length 2018 Yes TWELVEPOLE WATERSHED - HUC# 05090102 34 streams 213 miles Twelvepole Creek WVO-2 CNA-Biological Unknown 19.1 RM 13.9 to HW 2018 Yes Fecal Coliform Unknown 33.0 Entire length 2018 Yes Iron Unknown 33.0 Entire length 2018 Yes Krout Creek WVO-2-0.1A CNA-Biological Unknown 2.4 Entire length 2018 Yes UNT/Twelvepole Creek RM 5.72 WVO-2-0.8A CNA-Biological Unknown 2.0 Entire length 2018 Yes Buffalo Creek WVO-2-C CNA-Biological Unknown 6.6 Entire length 2018 Yes Camp Creek WVO-2-G CNA-Biological Unknown 3.4 Entire length 2018 Yes Right Fork/Camp Creek WVO-2-G-1 CNA-Biological Unknown 2.6 Entire length 2018 Yes Beech Fork WVO-2-H CNA-Biological Unknown 20.2 Mouth to RM 3.7 (dam) and Lake 2018 Yes backwaters to HW Rubens Branch WVO-2-H-3 CNA-Biological Unknown 1.3 RM 0.7 to HW 2018 Yes Long Branch WVO-2-H-7 CNA-Biological Unknown 3.6 Entire length 2018 Yes Butler Branch WVO-2-H-8 CNA-Biological Unknown 1.8 Entire length 2018 Yes Lynn Creek WVO-2-I CNA-Biological Unknown 3.0 Entire length 2023 Yes Shoal Branch WVO-2-M CNA-Biological Unknown 1.1 Entire length 2018 Yes Left Fork/Wilson Creek WVO-2-N-1 CNA-Biological Unknown 2.2 Entire length 2018 Yes Toms Creek WVO-2-O CNA-Biological Unknown 2.6 Entire length 2018 Yes West Fork/Twelvepole Creek WVO-2-P CNA-Biological Unknown 58.4 Entire length 2018 Yes Big Branch WVO-2-P-1 CNA-Biological Unknown 2.2 Entire length 2018 Yes JA2834 List Page 44 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 208 of Filed235 07/07/16 Page 94 of 279 PageID #: 4106 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Trace Fork WVO-2-P-4 CNA-Biological Unknown 4.5 Entire length 2018 Yes Billy Branch WVO-2-P-12 CNA-Biological Unknown 2.8 Entire length 2018 Yes Wells Branch WVO-2-P-19 CNA-Biological Unknown 1.7 Entire length 2018 Yes Moses Fork WVO-2-P-21 CNA-Biological Unknown 3.7 Mouth to RM 3.7 2018 Yes Right Fork/Moses Fork WVO-2-P-21-C CNA-Biological Unknown 1.7 Entire length 2018 Yes Turkey Creek WVO-2-P-29 CNA-Biological Unknown 5.3 Entire length 2023 No Breeden Creek WVO-2-P-36 CNA-Biological Unknown 3.2 Entire length 2018 Yes Moses Fork WVO-2-P-43 CNA-Biological Unknown 2.5 Entire length 2018 Yes East Fork/Twelvepole Creek WVO-2-Q CNA-Biological Unknown 13.5 RM 4.4 to RM 10.5 (East Lynn 2018 Yes Dam) and RM 41.3 to RM 48.65 Lynn Creek WVO-2-Q-9 CNA-Biological Unknown 1.9 Entire length 2018 Yes Rich Creek WVO-2-Q-14 Iron Unknown 3.5 Entire length 2018 Yes Cove Creek WVO-2-Q-17 CNA-Biological Unknown 4.8 Entire length 2018 Yes Kiah Creek WVO-2-Q-18 CNA-Biological Unknown 8.6 Mouth to RM 8.6 2018 Yes Parker Branch WVO-2-Q-18-D CNA-Biological Unknown 1.4 Mouth to RM 1.4 (below 2018 Yes impoundment) Copley Trace Branch WVO-2-Q-18-G CNA-Biological Unknown 1.5 Mouth to RM 1.5 2018 Yes Jims Branch WVO-2-Q-18-H CNA-Biological Unknown 0.9 Mouth to RM 0.9 2023 Yes Maynard Branch WVO-2-Q-23 CNA-Biological Unknown 0.2 Mouth to RM 0.2 2018 Yes Honey Branch WVO-2-Q-29 CNA-Biological Unknown 0.2 Mouth to RM 0.2 (below 2018 Yes impoundment) JA2835 List Page 45 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 209 of Filed235 07/07/16 Page 95 of 279 PageID #: 4107 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UPPER GUYANDOTTE WATERSHED - HUC# 05070101 1 Lake 630 acres 78 streams 254 miles Island Creek WVOG-65 CNA-Biological Unknown 18.1 Entire length 2018 Yes Rockhouse Branch WVOG-65-B-1-F CNA-Biological Unknown 2.3 Entire length 2018 Yes Whitman Creek WVOG-65-B-2 CNA-Biological Unknown 6.8 Entire length 2018 Yes Selenium Unknown 3.0 RM 3.8 to HW 2023 Yes UNT/Whitman Creek RM 3.83 WVOG-65-B-2-C Selenium Unknown 0.8 Entire length 2023 Yes UNT/Trace Fork RM 2.95 WVOG-65-B-4-G Selenium Unknown 0.7 Entire length 2023 Yes Curry Branch WVOG-65-B-5 CNA-Biological Unknown 0.9 Entire length 2018 Yes Mill Creek WVOG-65-C CNA-Biological Unknown 1.6 Entire length 2018 Yes Pine Creek WVOG-65-H CNA-Biological Unknown 1.4 Mouth to RM 1.35 2023 Yes Selenium Unknown 6.4 Entire length 2023 Yes Right Fork/Pine Creek WVOG-65-H-1 CNA-Biological Unknown 2.9 Entire length 2018 Yes Selenium Unknown 2.9 Entire length 2023 Yes Left Fork/Pine Creek WVOG-65-H-3 Selenium Unknown 2.4 Entire length 2023 Yes UNT/Left Fork RM 1.31/Pine WVOG-65-H-3-B Selenium Unknown 0.5 Entire length 2023 No Creek UNT/Pine Creek RM 5.96 WVOG-65-H-5 Selenium Unknown 0.7 Entire length 2023 Yes Cow Creek WVOG-65-J CNA-Biological Unknown 5.8 Mouth to RM 5.8 2018 Yes Littles Creek WVOG-65-K CNA-Biological Unknown 3.7 Entire length 2023 Yes Lower Dempsey Branch WVOG-65-L.5 CNA-Biological Unknown 1.1 Entire length 2018 Yes Upper Dempsey Branch WVOG-65-O CNA-Biological Unknown 1.5 Entire length 2023 No Dingess Run WVOG-68 CNA-Biological Unknown 7.4 Entire length 2023 Yes Selenium Unknown 6.3 Mouth to RM 6.3 2023 Yes Bandmill Hollow (Righthand WVOG-68-A CNA-Biological Unknown 3.6 Entire length 2023 No Fork) Selenium Unknown 3.6 Entire length 2023 No JA2836 List Page 46 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 210 of Filed235 07/07/16 Page 96 of 279 PageID #: 4108 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Freeze Fork WVOG-68-G CNA-Biological Unknown 2.1 Entire length 2023 No Selenium Unknown 2.1 Entire length 2023 Yes UNT/Freeze Fork RM 1.05 WVOG-68-G-1 CNA-Biological Unknown 1.7 Entire length 2023 No Georges Creek WVOG-68-H CNA-Biological Unknown 2.1 Mouth to RM 2.1 2023 No Selenium Unknown 1.5 Mouth to RM 1.5 2023 Yes UNT/Georges Creek RM 1.07 WVOG-68-H-1 Selenium Unknown 1.2 Entire length 2023 Yes Rum Creek WVOG-70 CNA-Biological Unknown 8.8 Entire length 2023 Yes Selenium Unknown 8.8 Entire length 2023 Yes Right Hand Fork/Rum Creek WVOG-70-A CNA-Biological Unknown 4.0 Entire length 2018 Yes Burgess Branch WVOG-70-A-1 CNA-Biological Unknown 1.5 Entire length 2023 Yes Slab Fork WVOG-70-B Selenium Unknown 4.0 Entire length 2023 Yes Camp Branch WVOG-71.5 CNA-Biological Unknown 1.9 Entire length 2018 Yes Madison Branch WVOG-72 CNA-Biological Unknown 1.7 Entire length 2023 No UNT/Madison Branch RM 0.68 WVOG-72-A CNA-Biological Unknown 1.0 Entire length 2023 No Right Fork/Buffalo Creek WVOG-75-A CNA-Biological Unknown 8.1 Entire length 2018 Yes Selenium Unknown 8.1 Entire length 2023 Yes Perry Branch WVOG-75-A-1 CNA-Biological Unknown 1.4 Entire length 2023 Yes UNT/Mudlick Branch RM 0.54 WVOG-75-C.5-1 Selenium Unknown 0.8 Entire length 2023 Yes Robinette Branch WVOG-75-D CNA-Biological Unknown 1.5 Entire length 2018 Yes Middle Fork/Buffalo Creek WVOG-75-L CNA-Biological Unknown 2.2 Entire length 2018 Yes Sugarcamp Branch WVOG-76-J CNA-Biological Unknown 1.3 Entire length 2023 No Beech Branch WVOG-76-K CNA-Biological Unknown 1.6 Entire length 2023 No UNT/Beech Branch RM 0.61 WVOG-76-K-1 CNA-Biological Unknown 1.0 Entire length 2023 No Paynter Branch WVOG-76-M CNA-Biological Unknown 2.5 Entire length 2018 Yes Selenium Unknown 2.5 Entire length 2023 Yes UNT/Paynter Branch RM 1.86 WVOG-76-M-3 Selenium Unknown 0.8 Entire length 2023 Yes Road Branch WVOG-76-O Selenium Unknown 2.5 Entire length 2023 Yes JA2837 List Page 47 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 211 of Filed235 07/07/16 Page 97 of 279 PageID #: 4109 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/Road Branch RM 1.79 WVOG-76-O-3 Selenium Unknown 0.5 Entire length 2023 Yes Lefthand Fork/Rockhouse Creek WVOG-77-D CNA-Biological Unknown 2.4 Entire length 2018 Yes Right Fork/Sandlick Creek WVOG-78-A CNA-Biological Unknown 1.3 Entire length 2018 Yes Spice Creek WVOG-82 CNA-Biological Unknown 1.8 Entire length 2018 Yes Stafford Branch WVOG-88 CNA-Biological Unknown 1.4 Entire length 2018 Yes Browning Fork WVOG-89-B-1 CNA-Biological Unknown 3.8 RM 0.58 to HW 2018 Yes Little Huff Creek WVOG-92 CNA-Biological Unknown 7.9 Mouth to RM 7.9 2018 Yes Little Cub Creek WVOG-92-B CNA-Biological Unknown 2.8 Entire length 2018 Yes Suke Creek WVOG-92-M CNA-Biological Unknown 2.4 Entire length 2018 Yes R D Bailey Lake WVOG-(L1) PCBs Unknown 630.0 Entire Lake 2018 Yes Big Cub Creek WVOG-96 CNA-Biological Unknown 2.9 RM 2.54 to RM 5.39 2023 No Road Branch WVOG-96-B CNA-Biological Unknown 1.6 Entire length 2023 No UNT/Road Branch RM 1.13 WVOG-96-B-2 CNA-Biological Unknown 0.5 Entire length 2023 No Long Branch WVOG-97 CNA-Biological Unknown 2.7 Entire length 2018 Yes Chestnut Flats Branch WVOGC-16-B-1 CNA-Biological Unknown 1.0 Entire length 2018 Yes Cabin Branch WVOGC-16-C CNA-Biological Unknown 2.0 Entire length 2018 Yes Tom Bailey Branch WVOGC-16-J-1 CNA-Biological Unknown 2.0 Entire length 2018 Yes Franks Fork WVOGC-16-U CNA-Biological Unknown 1.8 Entire length 2018 Yes Knob Fork WVOGC-28 CNA-Biological Unknown 2.0 Entire length 2026 No Indian Creek WVOG-110 CNA-Biological Unknown 19.7 Entire length 2023 Yes UNT/Big Branch RM 1.54 WVOG-120-C CNA-Biological Unknown 0.7 Entire length 2023 No Rockcastle Creek WVOG-123 CNA-Biological Unknown 4.0 Mouth to RM 4.0 2018 Yes Little White Oak Creek WVOG-124-E CNA-Biological Unknown 3.2 Entire length 2023 No Sulphur Branch WVOG-124-E-0.5 CNA-Biological Unknown 2.0 Entire length 2023 No Little Pinnacle Creek WVOG-124-P CNA-Biological Unknown 3.4 Entire length 2018 Yes Sugar Run WVOG-125 CNA-Biological Unknown 2.1 Entire length 2018 Yes Marsh Fork WVOG-127-D CNA-Biological Unknown 3.5 Entire length 2018 Yes JA2838 List Page 48 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 212 of Filed235 07/07/16 Page 98 of 279 PageID #: 4110 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Barkers Creek WVOG-131 Fecal Coliform Unknown 8.0 Entire length 2023 Yes Mill Branch WVOG-131-C CNA-Biological Unknown 2.6 Entire length 2018 Yes Gooney Otter Creek WVOG-131-F CNA-Biological Unknown 6.8 Entire length 2023 Yes Marsh Fork WVOG-134-C CNA-Biological Unknown 3.9 Entire length 2018 Yes UNT/Slab Fork RM 8.87 WVOG-134-L CNA-Biological Unknown 0.7 Entire length 2023 No Big Branch WVOG-136 CNA-Biological Unknown 0.4 Mouth to RM 0.4 2018 Yes Devils Fork WVOG-137 Fecal Coliform Unknown 4.9 Entire length 2023 Yes Wiley Spring Branch WVOG-137-C CNA-Biological Unknown 3.5 RM 0.7 to HW 2018 Yes Winding Gulf WVOG-138 Fecal Coliform Unknown 15.5 Entire length 2023 Yes Berry Branch WVOG-138-A Fecal Coliform Unknown 2.9 Entire length 2023 Yes Mullens Branch WVOG-138-E CNA-Biological Unknown 1.4 Entire length 2018 Yes Tommy Creek WVOG-139-A CNA-Biological Unknown 3.4 Mouth to RM 3.4 2018 Yes UPPER OHIO SOUTH WATERSHED - HUC# 05030106 17 streams 109 miles Ohio River (Upper South) WVO-us Dioxin Unknown 42.4 MP 113.8 to MP 71.4 (Entire 2020 Yes length) Fecal Coliform Unknown 42.4 MP 113.8 to MP 71.4 (Entire 2016 Yes length) Fish Creek WVO-77 CNA-Biological Unknown 8.0 RM 16.2 to RM 24.2 2023 Yes Conner Run WVO-77-A CNA-Biological Unknown 0.4 Mouth to RM 0.4 2018 Yes Bark Camp Run WVO-77-H-0.8 CNA-Biological Unknown 1.6 Entire length 2018 Yes West Virginia Fork/Fish Creek WVO-77-O CNA-Biological Unknown 22.0 Entire length 2023 Yes Church Fork WVO-77-O-11 CNA-Biological Unknown 3.6 Entire length 2023 Yes Boggs Run WVO-86 CNA-Biological Mining 4.2 Entire length 2023 Yes Browns Run WVO-86-A CNA-Biological Mining 1.7 Entire length 2023 Yes UNT/Boggs Run RM 2.69 WVO-86-C CNA-Biological Mining 1.4 Entire length 2023 Yes UNT/Wheeling Creek RM 25.77 WVO-88-M.3 CNA-Biological Mining 1.5 Entire length 2023 Yes JA2839 List Page 49 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 213 of Filed235 07/07/16 Page 99 of 279 PageID #: 4111 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Graeb Hollow WVO-89-A CNA-Biological Mining 1.3 Entire length 2023 Yes Short Creek WVO-90 CNA-Biological Mining 10.3 Entire length 2023 Yes Girty Run WVO-90-A CNA-Biological Mining 2.0 Entire length 2023 Yes North Fork/Short Creek WVO-90-D CNA-Biological Mining 4.4 Entire length 2023 Yes Huff Run WVO-90-D-1 CNA-Biological Mining 2.0 Entire length 2023 Yes UNT/Short Creek RM 6.03 WVO-90-H CNA-Biological Unknown 0.7 Entire length 2023 No Iron Unknown 0.7 Entire length 2023 No UNT/Ohio River MP 79.4 WVO-91 CNA-Biological Mining 1.0 Entire length 2023 Yes (Harrison Run) WEST FORK WATERSHED - HUC# 05020002 1 Lake 2667 acres 111 streams 412 miles Stonewall Jackson Lake WVMW-(L1) Chlorophyll-A Unknown 2090 9.6 miles above dam to HW of 2023 No lake Methylmercury Unknown 2650 Entire Lake 2023 Yes UNT/Booths Creek RM 1.39 WVMW-2-0.1A CNA-Biological Unknown 1.0 Entire length 2023 Yes UNT/Booths Creek RM 4.11 WVMW-2-0.6A CNA-Biological Unknown 1.0 Entire length 2023 Yes UNT/Booths Creek RM 4.81 WVMW-2-0.8A CNA-Biological Unknown 0.8 Entire length 2023 Yes Horners Run WVMW-2-D CNA-Biological Unknown 2.6 Entire length 2023 Yes Purdys Run WVMW-2-D-1 CNA-Biological Unknown 1.4 Entire length 2023 Yes Coons Run WVMW-3 CNA-Biological Unknown 1.0 Entire length 2023 Yes Camp Run WVMW-6 CNA-Biological Unknown 2.2 Entire length 2023 Yes Bingamon Creek WVMW-7 CNA-Biological Unknown 14.6 Entire length 2023 Yes Cunningham Run WVMW-7-D CNA-Biological Unknown 2.4 Entire length 2023 Yes Glade Fork WVMW-7-F CNA-Biological Unknown 5.0 Entire length 2023 Yes Harris Fork WVMW-7-H CNA-Biological Unknown 1.8 Entire length 2023 Yes UNT/Harris Fork RM 0.65 WVMW-7-H-2 CNA-Biological Unknown 0.8 Entire length 2023 Yes JA2840 List Page 50 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 214 of Filed 235 07/07/16 Page 100 of 279 PageID #: 4112 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/West Fork River RM 11.44 WVMW-7.1 CNA-Biological Unknown 0.7 Entire length 2023 Yes Laurel Run WVMW-8 CNA-Biological Unknown 1.2 Entire length 2023 Yes UNT/West Fork River RM 13.10 WVMW-8.5 CNA-Biological Unknown 0.8 Entire length 2023 Yes Mudlick Run WVMW-9 CNA-Biological Unknown 2.9 Entire length 2023 Yes UNT/West Fork River RM 13.91 WVMW-9.5 CNA-Biological Unknown 0.7 Entire length 2023 Yes Browns Run WVMW-10 CNA-Biological Unknown 1.0 Entire length 2023 Yes Shinns Run WVMW-11 CNA-Biological Unknown 6.6 Entire length 2023 Yes UNT/Shinns Run RM 3.69 WVMW-11-D CNA-Biological Unknown 1.6 Entire length 2023 Yes UNT/Shinns Run RM 4.15 WVMW-11-E CNA-Biological Unknown 1.0 Entire length 2023 Yes UNT/Shinns Run RM 5.61 WVMW-11-F CNA-Biological Unknown 0.6 Entire length 2023 Yes UNT/Shinns Run RM 5.97 WVMW-11-G CNA-Biological Unknown 0.8 Entire length 2023 Yes Robinson Run WVMW-12 CNA-Biological Unknown 5.4 Entire length 2023 Yes Tenmile Creek WVMW-13 CNA-Biological Unknown 23.6 Mouth to RM 23.6 2023 Yes Jack Run WVMW-13-0.5A CNA-Biological Unknown 1.0 Entire length 2023 Yes Jones Creek WVMW-13-A CNA-Biological Unknown 8.8 Entire length 2023 Yes Little Tenmile Creek WVMW-13-B CNA-Biological Unknown 13.0 Entire length 2023 Yes Peters Run WVMW-13-B-1 CNA-Biological Unknown 1.2 Entire length 2023 Yes UNT/Little Tenmile Creek RM WVMW-13-B-1.5 CNA-Biological Unknown 1.0 Entire length 2023 Yes 1.91 Bennett Run WVMW-13-B-2 CNA-Biological Unknown 2.4 Entire length 2023 Yes Big Elk Creek WVMW-13-B-6 CNA-Biological Unknown 3.0 Entire length 2023 Yes Isaac Creek WVMW-13-C CNA-Biological Unknown 2.8 Entire length 2023 Yes Gregory Run WVMW-13-D CNA-Biological Unknown 2.4 Entire length 2023 Yes Katy Lick Run WVMW-13-E CNA-Biological Unknown 2.8 Entire length 2023 Yes Flag Run WVMW-13-E.5 CNA-Biological Unknown 2.0 Entire length 2023 Yes UNT/Tenmile Creek RM 10.82 WVMW-13-E.7 CNA-Biological Unknown 1.2 Entire length 2023 Yes Rockcamp Run WVMW-13-F CNA-Biological Unknown 6.8 Entire length 2023 Yes JA2841 List Page 51 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 215 of Filed 235 07/07/16 Page 101 of 279 PageID #: 4113 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/Tenmile Creek RM 22.53 WVMW-13-M.5 CNA-Biological Unknown 0.4 Entire length 2023 Yes UNT/West Fork River RM 20.42 WVMW-14.2 CNA-Biological Unknown 0.8 Entire length 2023 Yes Simpson Creek WVMW-15 CNA-Biological Unknown 28.0 Entire length 2023 Yes UNT/Simpson Creek RM 1.23 WVMW-15-0.5A CNA-Biological Unknown 1.0 Entire length 2023 Yes Jack Run WVMW-15-A CNA-Biological Unknown 1.6 Entire length 2023 Yes Smith Run WVMW-15-B CNA-Biological Unknown 2.0 Entire length 2023 Yes Barnett Run WVMW-15-C CNA-Biological Unknown 2.4 Entire length 2023 Yes Beards Run WVMW-15-G CNA-Biological Unknown 2.8 Entire length 2023 Yes Berry Run WVMW-15-I CNA-Biological Unknown 3.3 Entire length 2023 Yes Right Fork/Simpson Creek WVMW-15-J CNA-Biological Unknown 3.6 Entire length 2023 Yes UNT/Right Fork RM WVMW-15-J-0.3 CNA-Biological Unknown 0.3 Entire length 2023 Yes 0.33/Simpson Creek Buck Run WVMW-15-J-1 CNA-Biological Unknown 2.7 Entire length 2023 Yes Sand Lick Run WVMW-15-J-2 CNA-Biological Unknown 3.2 Entire length 2023 Yes Gabe Fork WVMW-15-J-3 CNA-Biological Unknown 5.5 Entire length 2023 Yes UNT/Simpson Creek RM 21.92 WVMW-15-J.5 CNA-Biological Unknown 1.7 Entire length 2023 Yes Bartlett Run WVMW-15-K CNA-Biological Unknown 1.8 Entire length 2023 Yes UNT/Simpson Creek RM 22.72 WVMW-15-K.7 CNA-Biological Unknown 0.8 Entire length 2023 Yes West Branch/Simpson Creek WVMW-15-L CNA-Biological Unknown 3.4 Entire length 2023 Yes UNT/West Branch RM WVMW-15-L-0.5 CNA-Biological Unknown 0.8 Entire length 2023 Yes 0.63/Simpson Creek Stillhouse Run WVMW-15-L-1 CNA-Biological Unknown 1.0 Entire length 2023 Yes UNT/West Branch RM WVMW-15-L-2 CNA-Biological Unknown 1.0 Entire length 2023 Yes 1.57/Simpson Creek Camp Run WVMW-15-M CNA-Biological Unknown 1.8 Entire length 2023 Yes UNT/Simpson Creek RM 26.94 WVMW-15-N CNA-Biological Unknown 0.9 Entire length 2023 Yes Lambert Run WVMW-16 CNA-Biological Unknown 4.4 Entire length 2023 Yes JA2842 List Page 52 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 216 of Filed 235 07/07/16 Page 102 of 279 PageID #: 4114 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) UNT/Lambert Run RM 2.77 WVMW-16-B CNA-Biological Unknown 1.7 Entire length 2023 Yes Jack Run WVMW-17 CNA-Biological Unknown 2.4 Entire length 2023 Yes Fall Run WVMW-18 CNA-Biological Unknown 1.2 Entire length 2023 Yes Crooked Run WVMW-19 CNA-Biological Unknown 2.5 Entire length 2023 Yes Limestone Run WVMW-20 CNA-Biological Unknown 6.2 Entire length 2023 Yes Stone Coal Run WVMW-20-A CNA-Biological Unknown 1.6 Entire length 2023 Yes Simpson Fork WVMW-20-B CNA-Biological Unknown 1.4 Entire length 2023 Yes Johnson Fork WVMW-20-C CNA-Biological Unknown 1.5 Entire length 2023 Yes Elk Creek WVMW-21 CNA-Biological Unknown 29.0 Entire length 2023 Yes Murphy Run WVMW-21-A CNA-Biological Unknown 2.0 Entire length 2023 Yes Ann Moore Run WVMW-21-B CNA-Biological Unknown 0.8 Entire length 2023 Yes Nutter Run WVMW-21-D CNA-Biological Unknown 1.4 Entire length 2023 Yes Turkey Run WVMW-21-E CNA-Biological Unknown 1.7 Entire length 2023 Yes Hooppole Run WVMW-21-F CNA-Biological Unknown 1.4 Entire length 2023 Yes Brushy Fork WVMW-21-G CNA-Biological Unknown 14.0 Entire length 2023 Yes Coplin Run WVMW-21-G-1 CNA-Biological Unknown 1.8 Entire length 2023 Yes Glade Run WVMW-21-G-2 CNA-Biological Unknown 1.3 Entire length 2023 Yes Stonecoal Run WVMW-21-G-3 CNA-Biological Unknown 2.0 Entire length 2023 Yes Gnatty Creek WVMW-21-M CNA-Biological Unknown 8.9 Entire length 2023 Yes Rooting Creek WVMW-21-M-1 CNA-Biological Unknown 8.4 Entire length 2023 Yes Right Branch/Gnatty Creek WVMW-21-M-5 CNA-Biological Unknown 2.7 Entire length 2023 Yes Charity Fork WVMW-21-M-5-A CNA-Biological Unknown 1.9 Entire length 2023 Yes Left Branch/Gnatty Creek WVMW-21-M-6 CNA-Biological Unknown 2.4 Entire length 2023 Yes Stouts Run WVMW-21-N CNA-Biological Unknown 2.6 Entire length 2023 Yes Birds Run WVMW-21-O CNA-Biological Unknown 1.8 Entire length 2023 Yes Arnold Run WVMW-21-P CNA-Biological Unknown 2.8 Entire length 2023 Yes Isaacs Run WVMW-21-Q CNA-Biological Unknown 2.0 Entire length 2023 Yes JA2843 List Page 53 Appeal: 17-1430 Doc: 13Case 3:15-cv-00271 Filed: 05/08/2017 Document Pg: 65-21 217 of Filed 235 07/07/16 Page 103 of 279 PageID #: 4115 WEST VIRGINIA 2014 Section 303(d) List WEST VIRGINIA Impaired Projected Stream Criteria Reach TMDL Year 2012 Stream Name Source Size Code Affected (stream-miles) Description (No Later list? (lake-acres) Than) Stewart Run WVMW-21-S CNA-Biological Unknown 3.6 Entire length 2023 Yes UNT/Elk Creek RM 27.87 WVMW-21-T.7 CNA-Biological Unknown 1.4 Entire length 2023 Yes Davisson Run WVMW-22 CNA-Biological Unknown 4.8 Entire length 2023 Yes Washburncamp Run WVMW-22-A CNA-Biological Unknown 1.2 Entire length 2023 Yes Browns Creek WVMW-23 CNA-Biological Unknown 5.0 Entire length 2023 Yes Coburns Creek WVMW-24 CNA-Biological Unknown 3.2 Entire length 2023 Yes Sycamore Creek WVMW-25 CNA-Biological Unknown 5.7 Entire length 2023 Yes UNT/Sycamore Creek RM 3.04 WVMW-25-F CNA-Biological Unknown 2.8 Entire length 2023 Yes Lost Creek WVMW-26 CNA-Biological Unknown 11.4 Entire length 2023 Yes UNT/Lost Creek RM 3.32 WVMW-26-0.5A CNA-Biological Unknown 1.0 Entire length 2023 Yes Bonds Run WVMW-26-A CNA-Biological Unknown 1.4 Entire length 2023 Yes Buffalo Creek WVMW-27 CNA-Biological Unknown 4.7 Entire length 2023 Yes Duck Creek WVMW-28 CNA-Biological Unknown 4.0 Entire length 2023 Yes Two Lick Creek WVMW-30 CNA-Biological Unknown 3.8 Entire length 2023 Yes Hackers Creek WVMW-31 CNA-Biological Unknown 25.4 Entire length 2023 Yes McKinney Run WVMW-31-A CNA-Biological Unknown 2.9 Entire length 2023 Yes Stony Run WVMW-31-E CNA-Biological Unknown 1.4 Entire length 2023 Yes Browns Run WVMW-32-B CNA-Biological Unknown 1.4 Entire length 2023 Yes Sand Fork WVMW-32-F CNA-Biological Unknown 2.4 Entire length 2023 Yes Grass Run WVMW-38-E CNA-Biological Unknown 1.4 Entire length 2023 Yes Right Fork/Stonecoal Creek WVMW-38-G CNA-Biological Unknown 8.1 Mouth to RM 8.1 2023 Yes Washburn Run WVMW-45 CNA-Biological Unknown 2.4 Entire length 2023 Yes JA2844 List Page 54 Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 218 of 235 Attachment 6 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-24 Filed 07/07/16 Pg: 219 of Page 235 10 of 289 PageID #: 4569 JA3298 Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 220 of 235 Case 3:15-cv-00271 Document 65-24 Filed 07/07/16 Page 11 of 289 PageID #: 4570 JA3299 Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 221 of 235 Attachment 7 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-3 Filed 07/07/16 Pg: 222 of Page 235 21 of 154 PageID #: 1316 Total Maximum Daily Loads for the West Fork River Watershed, West Virginia Final Draft Report REVISED July 2014 On the cover: Photos provided by WVDEP Division of Water and Waste Management JA58 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-3 Filed 07/07/16 Pg: 223 of Page 235 53 of 154 PageID #: 1348 West Fork River Watershed: TMDL Report 4.4 Stressor Identification Results The SI process identified significant biological stressors for each stream. Biological impact was linked to a single stressor in some cases and multiple stressors in others. The SI process identified the following stressors to be present in the impacted waters in the West Fork River Watershed: x Aluminum toxicity x pH toxicity x Organic enrichment (the combined effects of oxygen-demanding pollutants, nutrients, and the resultant algal and habitat alteration) x Sedimentation x Ionic toxicity After stressors were identified, WVDEP also determined the pollutants in need of control to address the impacts. The SI process identified aluminum and pH toxicity as significant biological stressors in waters that also demonstrated violations of the aluminum and pH water quality criteria for protection of aquatic life. WVDEP determined that the implementation of those pollutant-specific TMDLs would address those stressors. In all streams for which the SI process identified organic enrichment as a significant biological stressor, data also indicated violations of the fecal coliform water quality criteria. The predominant sources of both organic enrichment and fecal coliform bacteria in the watershed are inadequately treated sewage and runoff from agricultural landuses. WVDEP determined that implementation of fecal coliform TMDLs would remove untreated sewage and significantly reduce loadings in agricultural runoff and thereby resolve organic enrichment stress. All of the streams for which the SI process identified sedimentation as a significant stressor are also impaired pursuant to total iron water quality criteria and the TMDL assessment for iron included representation and allocation of iron loadings associated with sediment. WVDEP compared the amount of sediment reduction necessary in the iron TMDLs to the amount of reduction needed to achieve the normalized sediment loading of an unimpacted reference stream. In each stream, the sediment loading reduction necessary for attainment of water quality criteria for iron exceeds that which was determined to be necessary using the reference approach. Implementation of the iron TMDLs will resolve biological stress from sedimentation. See the Technical Report for further description of the correlation between sedimentation and iron. The streams for which biological stress would be resolved through the implementation of the pollutant-specific TMDLs developed in this project are presented in Table 4-1. 22 JA90 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-3 Filed 07/07/16 Pg: 224 of Page 235 54 of 154 PageID #: 1349 West Fork River Watershed: TMDL Report Table 4-1. Significant stressors of biologically impacted streams in the West Fork River Watershed and pollutant TMDL to be developed. Stream Name NHD-Code Significant Stressors TMDLs Developed West Fork River WV-MW Sedimentation, Organic Enrichment, Iron, Fecal Coliform Mill Fall Run WV-MW-4 Sedimentation, Organic Enrichment Iron, Fecal Coliform Booths Creek WV-MW-5 Sedimentation, Organic Enrichment Iron, Fecal Coliform Sapp Run WV-MW-5-G Sedimentation, Organic Enrichment Iron, Fecal Coliform UNT/Booths Creek RM 8.22 WV-MW-5-K Sedimentation Iron Corbin Branch WV-MW-5-M Sedimentation Iron Thomas Fork WV-MW-5-N Sedimentation, Organic Enrichment Iron, Fecal Coliform Helens Run WV-MW-9 Sedimentation, Organic Enrichment Iron, Fecal Coliform Tevebaugh Creek WV-MW-10 Sedimentation, Organic Enrichment Iron, Fecal Coliform Little Bingamon Creek WV-MW-14-A Sedimentation Iron UNT/Little Bingamon Creek RM 1.59 WV-MW-14-A-3 Sedimentation, Organic Enrichment Iron, Fecal Coliform Long Run WV-MW-14-B Sedimentation, Organic Enrichment Iron, Fecal Coliform Coal Lick Run WV-MW-14-P-1 Sedimentation, Organic Enrichment Iron, Fecal Coliform Quaker Fork WV-MW-14-W Sedimentation, Organic Enrichment Iron, Fecal Coliform Little Elk Creek WV-MW-27-E-11 Sedimentation, Organic Enrichment Iron, Fecal Coliform Middle Run/Little Tenmile Creek WV-MW-27-E-15 Sedimentation, Organic Enrichment Iron, Fecal Coliform Mudlick Run WV-MW-27-E-18 Sedimentation, Organic Enrichment Iron, Fecal Coliform Little Rockcamp Run WV-MW-27-N-2 Sedimentation, Organic Enrichment Iron, Fecal Coliform Salem Fork WV-MW-27-X Sedimentation, Organic Enrichment Iron, Fecal Coliform UNT/Salem Fork RM 2.43 WV-MW-27-X-2 Organic Enrichment Fecal Coliform Cherrycamp Run WV-MW-27-X-4 Sedimentation, Organic Enrichment Iron, Fecal Coliform Patterson Fork WV-MW-27-X-8 Sedimentation, Organic Enrichment Iron, Fecal Coliform UNT/Patterson Fork RM 0.59 WV-MW-27-X-8-B Sedimentation, Organic Enrichment Iron, Fecal Coliform Coburn Fork WV-MW-27-AM Sedimentation, Organic Enrichment Iron, Fecal Coliform Ann Run WV-MW-31-K Sedimentation, Organic Enrichment Iron, Fecal Coliform Phoenix Hollow WV-MW-36-H Sedimentation, Organic Enrichment Iron, Fecal Coliform UNT/Brushy Fork RM 3.37 WV-MW-37-J-4 Sedimentation, Organic Enrichment Iron, Fecal Coliform Zachs Run WV-MW-37-L Organic Enrichment Fecal Coliform Chub Run WV-MW-37-M Sedimentation, Organic Enrichment Iron, Fecal Coliform Fall Run WV-MW-37-P Sedimentation, Organic Enrichment Iron, Fecal Coliform Hastings Run WV-MW-37-R Sedimentation, Organic Enrichment Iron, Fecal Coliform UNT/West Fork River RM 37.02 WV-MW-43 Sedimentation, Organic Enrichment Iron, Fecal Coliform UNT/Lost Creek RM 6.91 WV-MW-55-K Organic Enrichment Fecal Coliform Isaacs Creek WV-MW-66 Sedimentation, Organic Enrichment Iron, Fecal Coliform UNT/Isaacs Creek RM 2.90 WV-MW-66-E Sedimentation Iron West Run WV-MW-72-I Sedimentation Iron 23 JA91 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-3 Filed 07/07/16 Pg: 225 of Page 235 55 of 154 PageID #: 1350 West Fork River Watershed: TMDL Report Stream Name NHD-Code Significant Stressors TMDLs Developed Jesse Run WV-MW-72-K Sedimentation, Organic Enrichment Iron, Fecal Coliform Lifes Run WV-MW-72-P Sedimentation, Organic Enrichment Iron, Fecal Coliform Laurel Lick WV-MW-72-Y Sedimentation, Organic Enrichment Iron, Fecal Coliform Buckhannon Run WV-MW-72-AA Sedimentation, Organic Enrichment Iron, Fecal Coliform Lefthand Fork WV-MW-72-AJ Sedimentation Iron Right Fork/Kincheloe Creek WV-MW-75-G Sedimentation, Organic Enrichment Iron, Fecal Coliform Tanner Fork WV-MW-75-O Sedimentation, Organic Enrichment Iron, Fecal Coliform McCann Run WV-MW-79 Sedimentation, Organic Enrichment Iron, Fecal Coliform Sycamore Lick WV-MW-80 Sedimentation, Organic Enrichment Iron, Fecal Coliform Freemans Creek WV-MW-83 Sedimentation, Organic Enrichment Iron, Fecal Coliform Geelick Run WV-MW-83-A Sedimentation, Organic Enrichment Iron, Fecal Coliform Left Fork/Freemans Creek WV-MW-83-H Sedimentation, Organic Enrichment Iron, Fecal Coliform UNT/West Fork River RM 65.49 WV-MW-85 Sedimentation, Organic Enrichment Iron, Fecal Coliform Maxwell Run WV-MW-88 Sedimentation, Organic Enrichment Iron, Fecal Coliform Stonecoal Creek WV-MW-90 Sedimentation, Organic Enrichment Iron, Fecal Coliform UNT/Stonecoal Creek RM 2.43 WV-MW-90-C Sedimentation, Organic Enrichment Iron, Fecal Coliform Hilly Upland Run WV-MW-90-F Sedimentation, Organic Enrichment Iron, Fecal Coliform Spruce Fork WV-MW-90-L-17 Sedimentation, Organic Enrichment Iron, Fecal Coliform Glady Fork WV-MW-90-L-16 Sedimentation, Organic Enrichment Iron, Fecal Coliform Fall Run WV-MW-90-L-16-A Sedimentation, Organic Enrichment Iron, Fecal Coliform Polk Creek WV-MW-89 Sedimentation, Organic Enrichment Iron, Fecal Coliform Dry Fork WV-MW-89-G Sedimentation, Organic Enrichment Iron, Fecal Coliform Skin Creek WV-MW-98 Sedimentation, Organic Enrichment Iron, Fecal Coliform Hughes Fork WV-MW-98-O Sedimentation Iron Right Fork/West Fork River WV-MW-132 Sedimentation, Organic Enrichment Iron, Fecal Coliform Big Run WV-MW-132-C Sedimentation, Organic Enrichment Iron, Fecal Coliform Peddler Run WV-MW-31-M Sedimentation Iron Sand Fork WV-MW-112 Sedimentation Iron Note: RM is River Mile UNT is unnamed tributary. 5.0 METALS SOURCE ASSESSMENT This section identifies and examines the potential sources of metals impairments in the West Fork River Watershed. Sources can be classified as point (permitted) or nonpoint (non- permitted) sources. A point source, according to 40 CFR 122.3, is any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete 24 JA92 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-5 Filed 07/07/16 Pg: 226 of Page 235 1 of 152 PageID #: 1487 JA229 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-5 Filed 07/07/16 Pg: 227 of Page 235 2 of 152 PageID #: 1488 Total Maximum Daily Loads for Selected Streams in the Monongahela River Watershed, West Virginia Final Draft Report February 2014 On the cover: Photos provided by WVDEP Division of Water and Waste Management Top Middle: West Ru (WV-M-7). Special thanks to West Virginia Water Research Institute JA230 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-5 Filed 07/07/16 Pg: 228 of Page 235 34 of 152 PageID #: 1520 Monongahela River Watershed: TMDL Report 4.4 Stressor Identification Results The SI process identified significant biological stressors for each stream. Biological impact was linked to a single stressor in some cases and multiple stressors in others. The SI process identified the following stressors to be present in the impacted waters in the Monongahela River Watershed: x Aluminum toxicity x pH toxicity x Organic enrichment (the combined effects of oxygen-demanding pollutants, nutrients, and the resultant algal and habitat alteration) x Sedimentation x Ionic toxicity After stressors were identified, WVDEP also determined the pollutants in need of control to address the impacts. The SI process identified aluminum and pH toxicity as significant biological stressors in waters that also demonstrated violations of the aluminum and pH water quality criteria for protection of aquatic life. WVDEP determined that the implementation of those pollutant-specific TMDLs would address those stressors. In all streams for which the SI process identified organic enrichment as a significant biological stressor, data also indicated violations of the fecal coliform water quality criteria. The predominant sources of both organic enrichment and fecal coliform bacteria in the watershed are inadequately treated sewage and runoff from agricultural landuses. WVDEP determined that implementation of fecal coliform TMDLs would remove untreated sewage and significantly reduce loadings in agricultural runoff and thereby resolve organic enrichment stress. All of the streams for which the SI process identified sedimentation as a significant stressor are also impaired pursuant to total iron water quality criteria and the TMDL assessment for iron included representation and allocation of iron loadings associated with sediment. WVDEP compared the amount of sediment reduction necessary in the iron TMDLs to the amount of reduction needed to achieve the normalized sediment loading of an unimpacted reference stream. In each stream, the sediment loading reduction necessary for attainment of water quality criteria for iron exceeds that which was determined to be necessary using the reference approach. Implentation of the iron TMDLs will resolve biological stress from sedimentation. Little Paw Paw Creek (WV-M-49-D) was selected as the achievable reference stream as it shares similar landuse, ecoregion and geomorphologic characteristics with the sediment impaired streams. The location of Little Paw Paw Creek is shown in Figure 4-2. 21 JA262 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-5 Filed 07/07/16 Pg: 229 of Page 235 35 of 152 PageID #: 1521 Monongahela River Watershed: TMDL Report ® Sediment Reference Stream Miles Sediment Reference Watershed 0120.5 Figure 4-2. Location of the sediment reference stream, Little Paw Paw Creek (WV-M-49-D) See Section 10.5 for further description of the correlation between sedimentation and iron. The streams for which biological stress would be resolved through the implementation of the pollutant-specific TMDLs developedinthisprojectarepresentedinTable 4-1. Table 4-2 presents streams for which the SI process identified the presence of significant stressors that would not be positively addressed by TMDLs based on effective numeric water quality criteria. Table 4-1. Significant stressors of biologically impacted streams in the Monongahela River Watershed and pollutant TMDL to be developed. Stream Name NHD-Code Significant Stressors TMDLs Developed UNT/Crooked Run RM WV-M-2-B Organic Enrichment, Sedimentation Fecal Coliform, Total Iron 2.27 Deckers Creek WV-M-14 Organic Enrichment, Sedimentation Fecal Coliform, Total Iron Aaron Creek WV-M-14-B Sedimentation Total Iron UNT/Deckers Creek WV-M-14-E Organic Enrichment, Sedimentation Fecal Coliform, Total Iron RM 5.70 Glady Run WV-M-14-P pH Toxicity, Metals Toxicity, Metal pH, Total Iron, Dissolved Hydroxides Aluminum 22 JA263 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-5 Filed 07/07/16 Pg: 230 of Page 235 36 of 152 PageID #: 1522 Monongahela River Watershed: TMDL Report Stream Name NHD-Code Significant Stressors TMDLs Developed Booths Creek WV-M-17 pH Toxicity, Aluminum Toxicity pH, Dissolved Aluminum Brand Run WV-M-20 pH Toxicity, Aluminum Toxicity, pH, Dissolved Aluminum, Total Iron Toxicity Iron Little Creek WV-M-42 Sedimentation Total Iron Prickett Creek WV-M-44 Organic Enrichment, Sedimentation Fecal Coliform, Total Iron Scratchers Run WV-M-44-H Organic Enrichment, Sedimentation Fecal Coliform, Total Iron Robinson Run WV-M-49-K Sedimentation Total Iron UNT/Finchs Run RM WV-M-54-D- Sedimentation Total Iron 1.15 2 UNT/Bethel Run RM WV-M-54-I- Organic Enrichment Fecal Coliform 0.80 1-A Mod Run WV-M-54-T Organic Enrichment, Sedimentation Fecal Coliform, Total Iron Mahan Run WV-M-54-U Organic Enrichment, Sedimentation Fecal Coliform, Total Iron Flaggy Meadow Run WV-M-54-W Organic Enrichment, Sedimentation Fecal Coliform, Total Iron State Road Fork WV-M-54-X- Organic Enrichment, Sedimentation Fecal Coliform, Total Iron 7 Campbell Run WV-M-54-X- Organic Enrichment, Sedimentation Fecal Coliform, Total Iron 9 Dents Run WV-M-54-Z Organic Enrichment, Sedimentation Fecal Coliform, Total Iron Joes Run WV-M-54-AC Organic Enrichment, Sedimentation Fecal Coliform, Total Iron Owen Davy Fork WV-M-54-AI Organic Enrichment, Sedimentation Fecal Coliform, Total Iron Bartholomew Fork WV-M-54-AK Organic Enrichment, Sedimentation Fecal Coliform, Total Iron Warrior Fork WV-M-54- Sedimentation, Organic Enrichment Fecal Coliform, Total Iron AM Hickman Run WV-M-55 Organic Enrichment, Sedimentation Fecal Coliform, Total Iron Note: RM is River Mile UNT is unnamed tributary. Table 4-2: Significant stressors of biologically impacted streams in the Monongahela River Watershed not entirely addressed by TMDLs based on effective numeric water quality criteria presented herein. Stream Name NHD-Code Significant Stressors Camp Run WV-M-1 pH Toxicity, Aluminum Toxicity, Iron Toxicity, Ionic Stress, Metal Hydroxides Scotts Run WV-M-10 Ionic Stress, Organic Enrichment Wades Run WV-M-10-C Ionic Stress Guston Run WV-M-10-D Ionic Stress Dents Run WV-M-12 Organic Enrichment, Sedimentation, Ionic Stress Flaggy Meadow Run WV-M-12-A Organic Enrichment, Ionic Stress UNT/Dents Run RM 5.82 WV-M-12-H Ionic Stress Hartman Run WV-M-14-A Ionic Stress 23 JA264 Appeal: 17-1430Case 3:15-cv-00271 Doc: 13 Document Filed: 05/08/2017 65-5 Filed 07/07/16 Pg: 231 of Page 235 37 of 152 PageID #: 1523 Monongahela River Watershed: TMDL Report Stream Name NHD-Code Significant Stressors Owl Creek WV-M-17-G pH Toxicity, Aluminum Toxicity, Ionic Stress, Metal Hydroxides UNT/Booths Creek RM WV-M-17-L Inconclusive 7.43 UNT/Camp Run RM 0.79 WV-M-1-A pH Toxicity, Aluminum Toxicity, Iron Toxicity, Ionic Stress, Metal Hydroxides Crooked Run WV-M-2 pH Toxicity, Aluminum Toxicity, Ionic Stress, Metal Hydroxides Flaggy Meadow Run WV-M-30 Ionic Stress UNT/Flaggy Meadow Run WV-M-30-D Ionic Stress RM 2.15 Indian Creek WV-M-33 Ionic Stress Little Indian Creek WV-M-33-E Ionic Stress Snider Run WV-M-33-E-2 Ionic Stress UNT/Little Indian Creek WV-M-33-E-6 Ionic Stress RM 3.19 UNT/Indian Creek RM WV-M-33-P Ionic Stress 7.23 Paw Paw Creek WV-M-49 Ionic Stress, Organic Enrichment, Sedimentation Sugar Run WV-M-49-W Organic Enrichment, Sedimentation, Ionic Stress, Metal Hydroxides Harvey Run WV-M-49-X Ionic Stress Buffalo Creek WV-M-54 Ionic Stress, Organic Enrichment, Sedimentation Whetstone Run WV-M-54-AA Ionic Stress, Organic Enrichment, Sedimentation Moody Run WV-M-54-E Inconclusive Pyles Fork WV-M-54-X Ionic Stress, Sedimentation, Organic Enrichment Flat Run WV-M-54-X-3 Ionic Stress, Organic Enrichment, Sedimentation, Metal Hydroxides Llewellyn Run WV-M-54-X-3-A Ionic Stress, Sedimentation, Metal Hydroxides UNT/Monongahela River WV-M-57 Sedimentation, Ionic Stress RM 128.55 West Run WV-M-7 pH Toxicity, Aluminum Toxicity, Iron Toxicity, Ionic Stress, Metal Hydroxides Robinson Run WV-M-8 Ionic Stress, Sedimentation, Metal Hydroxides Crafts Run WV-M-8-A pH Toxicity, Aluminum Toxicity, Iron Toxicity, Ionic Stress, Metal Hydroxides UNT/Robinson Run RM WV-M-8-B pH Toxicity, Aluminum Toxicity, Iron Toxicity, Ionic 1.09 Stress, Metal Hydroxides UNT/Robinson Run RM WV-M-8-F Ionic Stress 4.09 Note: RM is River Mile UNT is unnamed tributary. Inconclusive indicates that insufficient data were available to link likely pollutant stressors to biological assessment. 24 JA265 Appeal: 17-1430CaseCase 3:15-cv-00271 3:15-cv-00271 Doc: 13 Document Document Filed: 05/08/2017 65-25 44-4 Filed Filed 07/07/16 03/18/16Pg: 232 of Page Page235 77 1 ofof 109185 PageIDPageID #:#: 6974925 PLAINTIFFS' RESPONSE/REPLY EXHIBIT 4 JA3654 Appeal: 17-1430CaseCase 3:15-cv-00271 3:15-cv-00271 Doc: 13 Document Document Filed: 05/08/2017 65-25 44-4 Filed Filed 07/07/16 03/18/16Pg: 233 of Page Page235 78 2 ofof 109185 PageIDPageID #:#: 6984926 Total Maximum Daily Loads for the Tygart Valley River Watershed, West Virginia Draft Report October 2015 On the cover: Photos provided by WVDEP Division of Water and Waste Management PLAINTIFFS' RESPONSE/REPLY EXHIBIT 4 JA3655 Appeal: 17-1430CaseCase 3:15-cv-00271 3:15-cv-00271 Doc: 13 Document Document Filed: 05/08/201765-25 44-4 Filed Filed 07/07/16 03/18/16 Pg: 234 of Page Page 235 111 35 of of 109 185 PageID PageID #: #: 731 4959 Tygart Valley River Watershed: TMDL Report 4.4 Stressor Identification Results The SI process identified significant biological stressors for each stream. Biological impact was linked to a single stressor in some cases and multiple stressors in others. The SI process identified the following stressors to be present in the impacted waters in the Tygart Valley River Watershed: x Aluminum toxicity x pH toxicity x Increased metals flocculation and deposition causes habitat alterations (e.g., embeddedness) x Organic enrichment (the combined effects of oxygen-demanding pollutants, nutrients, and the resultant algal and habitat alteration) x Sedimentation x Increased ionic strength causes toxicity After stressors were identified, WVDEP also determined the pollutants in need of control to address the impacts. The SI process identified aluminum and pH toxicity as significant biological stressors in waters that also demonstrated violations of the aluminum and pH water quality criteria for protection of aquatic life. WVDEP determined that the implementation of those pollutant-specific TMDLs would address those stressors. In all streams for which the SI process identified organic enrichment as a significant biological stressor, data also indicated violations of the fecal coliform water quality criteria. The predominant sources of both organic enrichment and fecal coliform bacteria in the watershed are inadequately treated sewage and runoff from agricultural landuses. WVDEP determined that implementation of fecal coliform TMDLs would remove untreated sewage and significantly reduce loadings in agricultural runoff and thereby resolve organic enrichment stress. Certain streams for which the SI process identified sedimentation as a significant stressor are also impaired pursuant to total iron water quality criteria and the TMDL assessment for iron included representation and allocation of iron loadings associated with sediment. WVDEP compared the amount of sediment reduction necessary in the iron TMDLs to the amount of reduction needed to achieve the normalized sediment loading of an unimpacted reference stream. In these streams, the sediment loading reduction necessary for attainment of water quality criteria for iron exceeds that which was determined to be necessary using the reference approach. Implementation of the iron TMDLs will resolve biological stress from sedimentation in these streams. See the Technical Report for further descriptions of the correlation between sediment and iron and the comparisons of sediment reductions under iron criterion attainment and reference watershed approaches. 23 PLAINTIFFS' RESPONSE/REPLY EXHIBIT 4 JA3688 Appeal: 17-1430CaseCase 3:15-cv-00271 3:15-cv-00271 Doc: 13 Document Document Filed: 05/08/201765-25 44-4 Filed Filed 07/07/16 03/18/16 Pg: 235 of Page Page 235 112 36 of of 109 185 PageID PageID #: #: 732 4960 Tygart Valley River Watershed: TMDL Report The streams for which biological stress to benthic macroinvertebrates would be resolved through the implementation of the pollutant-specific TMDLs developed in this project are presented in Table 4-1. There are 26 streams for which the SI process did not indicate that TMDLs for numeric criteria would resolve the biological impacts. Reference Appendix K of the Technical Report for complete SI results. Table 4-1. Biological impacts resolved by implementation of pollutant-specific TMDLs Stream Name NHD-Code Significant Stressors TMDLs Developed Tygart Valley River WV-MT organic enrichment Fecal coliform Wickwire Run WV-MT-18 organic enrichment, sedimentation Fecal coliform, iron Sandy Creek WV-MT-34 sedimentation, organic enrichment Fecal coliform, iron pH, dissolved metals, metal flocculation/deposition, Iron, dissolved aluminum, Little Sandy Creek WV-MT-34-J sedimentation pH Right Fork/Little Sandy Creek WV-MT-34-J-18 sedimentation Iron Left Fork/Sandy Creek WV-MT-34-L sedimentation, organic enrichment Fecal coliform, iron UNT/UNT RM 0.56/Sandy Creek RM 10.47 WV-MT-34-N-1 pH pH, iron Mill Run WV-MT-43-L organic enrichment Fecal coliform Mill Run WV-MT-43-S organic enrichment Fecal coliform Sugar Creek WV-MT-46-J sedimentation, organic enrichment Fecal coliform, iron Long Run WV-MT-46-J-25 organic enrichment Fecal coliform Mitchell Run WV-MT-48 organic enrichment Fecal coliform Big Run WV-MT-62-AA sedimentation, organic enrichment Fecal coliform, iron Childers Run WV-MT-62-AB sedimentation, organic enrichment Fecal coliform, iron Wash Run WV-MT-62-AH-8 organic enrichment, sedimentation Fecal coliform, iron Bull Run WV-MT-62-AV-7 organic enrichment, sedimentation Fecal coliform, iron pH, dissolved aluminum, Swamp Run WV-MT-62-CB pH, dissolved metals iron First Big Run WV-MT-62-E organic enrichment, sedimentation Fecal coliform, iron Middle Fork River WV-MT-72 sedimentation Iron Brook Run WV-MT-72-AE-1 organic enrichment Fecal coliform pH, dissolved metals, metal flocculation/deposition, Cassity Fork WV-MT-72-AU sedimentation pH, dissolved metals, iron Hoophole Run WV-MT-72-T metal flocculation/deposition iron Mill Creek WV-MT-96 sedimentation, organic enrichment Fecal coliform, iron Shooks Run WV-MT-97 sedimentation, organic enrichment Fecal coliform, iron Zebs Creek WV-MT-112 organic enrichment Fecal coliform Craven Run WV-MT-125-B sedimentation, organic enrichment Fecal coliform, iron Davis Lick WV-MT-125-S sedimentation, organic enrichment Fecal coliform, iron Chenoweth Creek WV-MT-146 organic enrichment, sedimentation Fecal coliform, iron 24 PLAINTIFFS' RESPONSE/REPLY EXHIBIT 4 JA3689