By Andrew Young
To put it simply: two notorious coal companies, NUFAC and Bluestone, have been flagrantly desecrating Pinnacle Creek for years, and are pushing the critically endangered Guyandotte River crayfish to the precipice of extinction.
Both of these companies are owned by West Virginia Governor Jim Justice.
The Guyandotte River crayfish was once prolific across its historic range, but the hardy crustacean is now found in only two streams on Earth: Clear Fork and Pinnacle Creek. The decline of this species is largely due to unyielding, poorly regulated negative impacts from coal mining, as well as more recent sedimentation impacts from off-road vehicle use in the streams and riparian zones around its designated critical habitat.
The Allegheny-Blue Ridge Alliance (ABRA) and the West Virginia Highlands Conservancy (WVHC) became focused on the crayfish issues in Wyoming and Logan Counties after working with Appalachian Voices and the Center for Biological Diversity to lodge an Endangered Species Act lawsuit over West Virginia’s failure to implement required Protection and Enhancement Plans for endangered species across the state.
Soon after that lawsuit was filed, WVHC worked alongside conservation partners to build a number of related cases in the South Fork Cherry and Laurel Creek watersheds that provide critical habitat for the endangered candy darter.
The constant hammering of candy darter and Guyandotte River crayfish critical habitat is emblematic of the threats that coal mining plays to all living species on Earth, and we must fight this rogue industry until the coffin is double-nailed and buried somewhere between six to12 feet deep. We must finish this fight once and for all, or coal will finish us.
Appalachian Voices and Center for Biological Diversity’s recent lawsuit is based on the fact that the United States Fish and Wildlife Service (FWS) has created a guidance document for agency staff acknowledging and explaining the extent of harm that coal mining activities inflict on downstream aquatic species, complete with references to numerous studies showing significant habitat degradation and population impacts via sedimentation and other effects up to 12 miles downstream from coal mining operations.
According to FWS, the best available science indicates that mines within 12 miles upstream of critical habitat or populations of aquatic species such as the Guyandotte River crayfish, Big Sandy crayfish, and candy darter certainly “may affect” the species and their critical habitat, and therefore require a Protection and Enhancement Plan to address and minimize such impacts.
Documented examples show how coal mining pollution is escalating the risk of jeopardy for listed species. For example, the two remaining occupied critical habitat segments for the Guyandotte River crayfish have been impacted by major coal pollution spills in recent years. FWS has documented at least four unpermitted sediment spills from the Eagle Surface Mine on Knob Fork of Clear Fork between February and May of 2017, which impacted critical habitat for the Guyandotte River crayfish with siltation and sedimentation impacts 14 miles downstream.
Likewise, in its 2023 Guyandotte River crayfish five-year review, FWS documented a 2018 coal slurry spill by an unidentified Surface Mining Control and Reclamation Act (SMCRA) permittee on Pinnacle Creek in another section of designated critical habitat for the Guyandotte River crayfish. This spill resulted in siltation and sedimentation impacts to the critical habitat, and is suspected of directly killing all Guyandotte River crayfish in one area of the stream.
These and other impacts from coal mining activities have devastated the crayfish populations in Appalachia. The Guyandotte River crayfish has been wiped out from 93 percent of its known historical range. It only survives in Pinnacle Creek and Clear Fork in West Virginia’s Wyoming and Logan Counties, both of which watersheds are heavily impacted by coal mining activities.
The U.S. Environmental Protection Agency has documented that neither Pinnacle Creek nor Clear Fork meet water quality standards for aquatic life. Amazingly, though, more than three years after the requirement to develop protection plans for Guyandotte River crayfish, of the 114 SMCRA facilities identified in the lawsuit, 112 lack the required PEP for the species. That is a non-compliance rate of 98.25 percent for a species that is perhaps the most at risk of extinction in the entire country.
The harm that the Guyandotte River crayfish has suffered due to coal industry pollution underscores the need for the Office of Surface Mining and Reclamation Enforcement and FWS to fashion and effectively implement an appropriate mechanism for compliance with the Endangered Species Act, including by implementing protective measures for permits that threaten these species and their designated critical habitat.
Yet at this time, more than three years after the issuance of the 2020 Biological Opinion, no protection plans are in place for the vast majority of coal mining facilities in West Virginia that threaten these listed species and their designated critical habitats. If regulators won’t do their jobs willingly, we must force them to.
As these lawsuits play out, WVHC and ABRA have been hard at work chasing leads and filing information requests (FOIAs) to uncover a number of scandals associated with various state agencies and the Justice family of coal mines in Pinnacle Creek. What we have found is powerful information for the attorneys to show the continuing negative impacts to the species because of the inadequacy of the regulatory system, and that individuals within the agencies are failing to live up to their obligations.
At the end of the day, it will hopefully be enough to prove our point to the courts and the public: these agencies need to protect endangered species no matter how tightly King Coal tries to manipulate his dying grip on the Appalachian coalfields.
Coal Truck Crash into Pinnacle Creek
The first incident ABRA and WVHC became aware of is about a Justice coal truck that crashed into Pinnacle Creek in December 2022. The coal truck was carrying 40 plus tons of raw coal. Because it was a Justice operation, it has unsurprisingly been covered up and largely kept from the public until now. Justice is even rumored to have flown in to help coordinate the cover up. The West Virginia Department of Environmental Protection (WV DEP) database includes a Notice of Violation with no photos and the only description being, “truck with a load of coal flipped into Pinnacle Creek, dumping load of coal into Pinnacle Creek. Stream was discolored. Black material has been deposited onto the banks of the creek.”
Through a FOIA request, ABRA and WVHC learned that this accident was deemed an Endangered Species Act emergency by WV DEP, Office of Surface Mining Reclamation and Enforcement and FWS, but the accountability afterward remains to be seen. The photos are devastating (see above/below), and, moreover, the FWS West Virginia Field Office sent a biologist who collected water samples at five locations and then, inexplicably, never sent the water samples to a lab for analysis, as is standard procedure.
The FWS WV Field Office claimed in its initial FOIA response that WV DEP was the only agency who took water samples on site. In contrast, the WV DEPs response to the same FOIA included information on the exact locations and persons that took the water samples on site from FWS.
The $11,300 fine levied by WV DEP is a laughably inappropriate amount given the permanent damage done to the species and its critical habitat by this Justice operation, and we expect much more from our regulators.
It is simple: FWS cannot continue to take a back seat in this coal-dominated regulatory system if they are to legitimately ensure the survival of listed species in West Virginia.
Unpermitted Valley Fills in Guyandotte River Crayfish Critical Habitat
The second issue ABRA and WVHC are investigating is the widespread construction of unpermitted valley fills in the Guyandotte River crayfish critical habitat. Valley fills and mountaintop removal, according to the US EPA, impact streams in five principal ways:
1. Springs and ephemeral, intermittent and perennial streams are permanently lost with the removal of the mountain and from burial under fill; 2. concentrations of major chemical ions are persistently elevated downstream; 3. degraded water quality reaches levels that are acutely lethal to organisms in standard aquatic toxicity tests; 4. selenium concentrations are elevated, reaching concentrations that have caused toxic effects in fish and birds, and; 5. macroinvertebrate and fish communities are consistently degraded.
Because of these serious negative consequences, valley fill construction requires a Section 404 permit from the U.S. Army Corps of Engineers and a 401 State Water Quality Certificate from WV DEP. These permitting processes can be extensive and burdensome, but they are in place because of how serious the hydrologic impacts are.
Nevertheless, Justice operations are rumored to have constructed numerous valley fills in this critical habitat without Section 404 permits from the Army Corps. When we caught wind of this rumor, ABRA looked into a Bluestone coal mine that is coincidentally up for permit renewal (S401301 the Poca Contour Mine) and our initial suspicions were confirmed. On this mine in May 2020, the Army Corps sent a Cease and Desist letter to shut down the unauthorized valley fill operation.
ABRA and WVHC are now looking into every SMCRA permit in the Pinnacle Creek watershed to determine the extent of the problem, and to ensure that the King knows he is under the microscope. Adding insult to incompetence, in response to a FOIA on this issue, the WV DEP said the information request was too voluminous and that we could make an appointment with them to come to their office in Charleston and do the records search for them. When we get more information, we will let you know what we find out.
As with the last Highlands Voice series delving into coal mining impacts to candy darter critical habitat, this issue in Guyandotte River crayfish critical habitat will need to be broken into at least another part, stay tuned to learn more about the coal truck crash in Pinnacle Creek, and about the OSMRE and WV DEP years long Endangered Species Act stream assessment report that has been kept from the public because of how bad the data is for the coal industry.
ABRA, the Center for Biological Diversity, and WVHC found out about this water monitoring program from an obscure OSMRE Budget Justification document and have engaged in months of back and forth FOIA negotiations with state agencies to get ahold of the data and push the OSMRE to publish their final report.
Until next time, please check out the ABRA map showing mining impacts to Pinnacle Creek and you can see more information about the coal truck crash, unpermitted valley fills, ESA stream assessment data locations, and other relevant contextual information.