Full opinion text
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, Chief Judge. On December 3-4, 2013, the Court held a trial in this case regarding jurisdiction and liability, and the parties timely conducted post-trial briefing. As explained below, the Court FINDS that Plaintiffs have' established statutory jurisdiction under both the Clean Water Act and the Surface Mining Control and Reclamation Act. The Court further FINDS that Plaintiffs have established, by a preponderance of the evidence, that each Defendant has committed at least one violation of its permits by discharging into Laurel Creek or Robinson Fork high levels of ionic, pollution, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream’s aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into those permits. I. BACKGROUND Plaintiffs bring this action pursuant to the citizen suit provisions of the Federal Water Pollution Control Act' (“Clean Water Act” or “CWA”) and the Surface Mining Control and Reclamation Act (“SMCRA”). Plaintiffs allege that Defendants Elk Run Coal Company, Inc., (“Elk Run”) and Alex Energy, Inc., (“Alex Energy”) violated these statutes by discharging excessive amounts of ionic pollution, measured as conductivity and sulfates, into the waters of West Virginia in violation of their National Pollutant Discharge Elimination System (“NPDES”) permits and their West Virginia Surface Mining Permits. Before proceeding to the parties’ arguments, the Court will first discuss the relevant regulatory framework. Thé primary goal of the CWA is “to restore and maintain the chemical, physical, and biological' integrity of the Nation’s waters.” 33- U.S.C. § 1251(a). To further this goal, the Act prohibits the “discharge of any pollutant by any person” unless a statutory exception applies; the primary exception is the procurement of an NPDES permit. 33 U.S.C. §§ 1311(a), 1342. Under the NPDES, the U.S. Environmental Protection Agency (“EPA”) or an authorized state agency can issue a permit for the discharge of any pollutant, provided that the discharge complies with the conditions of the CWA. 33 U.S.C. § 1342. A state may receive approval to administer a state-run NPDES program under the authority of 33 U.S.C. § 1342(b). West Virginia received such approval, and its NPDES program is administered through the West Virginia Department of Environmental Protection (“WVDEP”). 47 Fed.Reg. 22363-01 (May 24, 1982). All West Virginia NPDES permits incorporate by reference West Virginia Code of State Rules § 47-30-5.1.f, which states that “discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2].” This is an enforceable permit condition. Ohio Valley Envtl. Coal. v. Elk Run Coal Co., Inc., No. CIV.A. 3:12-0785, 2014 WL 29562, at *3, *6 (S.D.W.Va. Jan. 3, 2014). Coal mines are also subject to regulation under the SMCRA, which prohibits any person from engaging in or carrying out surface coal mining operations without first obtaining a permit from the Office of Surface Mining Reclamation and Enforcement (“OSMRE”) or an authorized state agency. 30 U.S.C. §§ 1211,1256,1257. A state may receive approval to administer a state-run surface mining permit program under the authority of 30 U.S.C. § 1253. In 1981, West Virginia received conditional approval of its state-run program, which is administered through the WVDEP pursuant to the West Virginia Surface Coal Mining and Reclamation Act (‘WVSCMRA”). W. Va.Code §§ 22-3-1 to -33; 46 Fed. Reg. 5915-01 (Jan. 21, 1981). Regulations passed pursuant to the WVSCMRA require permittees to comply with the terms and conditions of their permits and all applicable performance standards. W. Va. Code R. § 38-2-3.33.C. One of these performance standards requires that mining discharges “shall not violate effluent limitations or cause a violation of applicable water quality standards.” Id. § 38-2-14.5.b. Another performance standard mandates that “[a]dequate facilities shall be installed, operated and maintained using the best technology currently available ... to treat any water discharged from the permit area so that it complies with the requirements of subdivision 14.5.b of this subsection.” Id. § 38-2-14.5.C. West Virginia’s water quality standards are violated if wastes discharged from a surface mining operation “cause ... or materially contribute to” 1) “[m]aterials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life” or 2) “[a]ny other condition ... which adversely alters the integrity of the waters of the State.” Id. § 47-2-3.2.e, -3.2.L Additionally, “no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.” Id. § 47-2-3.2.L II. CWA AND SMCRA CITIZEN SUIT REQUIREMENTS As the Court ruled in its November 26, 2013, Memorandum Opinion and Order, ECF No. 87, 2013 WL 6190011, Plaintiffs have established constitutional standing. However, that Order did not address the three statutory requirements which must be established in order to properly bring a citizen’s suit under the CWA and the SMCRA. Thus, the Court must address these requirements now. Under the CWA and the SMCRA, no citizen suit may be commenced prior to the provision of sixty days’ notice to the alleged violator, to the Administrator of the EPA (for CWA citizen suits) or the Secretary of the Department of the Interior (for SMCRA citizen suits), and to the state in which the alleged violation occurs. 30 U.S.C. § 1270(b)(1)(A); 33 U.S.C. § 1365(b)(1)(A). Additionally, no such suit may be commenced if the state, the Administrator, or the Secretary has commenced and is diligently prosecuting its own civil action against the alleged violator to require the same compliance which is the aim of the citizen suit. See 30 U.S.C. § 1270(b)(1)(B); 33 U.S.C. § 1365(b)(1)(B); OVEC v. Maple Coal Co., 808 F.Supp.2d 868, 883 (S.D.W.Va.2011). Plaintiffs sent a letter to the appropriate recipients which provided the necessary details for valid notice of suit on January 11, 2012. See Joint Exs. 1-3. This lawsuit was commenced over sixty days later, on March 20, 2012. See Compl., ECF No. 1. Plaintiffs represented at trial that they have received no information that any regulators — state or federal — have filed an action regarding these violations. See Tr. at 16. Defendants do not challenge Plaintiffs’ contention that they have met the sixty days’ notice and lack of diligent prosecution requirements. The Court thus finds that the CWA’s and the SMCRA’s notice and lack of diligent prosecution requirements have been met by Plaintiffs in this case. The CWA’s citizen suit provision also states, [A]ny citizen may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation .... 33 U.S.C. § 1365(a)(1) (emphasis added). The SMCRA’s citizen suit provision states, [A]ny person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this chapter ... against any ... person who is alleged to be in violation of any rule, regulation, order or permit issued pursuant to this subchapter.... 30 U.S.C. § 1270(a)(1) (emphasis added). The Supreme Court has interpreted the phrase “to be in violation” in this context to require “that citizen-plaintiffs allege a state of either continuous or intermittent violation — that is, a reasonable likelihood that a past polluter will continue to pollute in the future.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. (“Gwaltney III”), 484 U.S. 49, 57, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). “[A] good-faith allegation [of continuous or intermittent violation] ... suffiee[s] for jurisdictional purposes.... ” Id. at 65, 108 S.Ct. 376. The issue of what evidence must be shown for jurisdictional purposes is distinct from what evidence must be shown for a defendant to ultimately be held liable for violations of the CWA and the SMCRA. See Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd. (“Gwaltney IV”), 844 F.2d 170, 171 (4th Cir.1988) (drawing a distinction between making “a good faith allegation of ongoing violation sufficient to maintain jurisdiction” and “prov[ing] [an] allegation of continuous or intermittent violation[ ], as required in order to prevail”). The Supreme Court specifically rejected the proposition that “citizen-plaintiffs must prove their allegations of ongoing noncompliance before jurisdiction attaches.” Gwaltney III, 484 U.S. at 64, 108 S.Ct. 376. Good-faith allegations, not definitive proof, suffice for jurisdictional purposes. Id. at 65, 108 S.Ct. 376. To meet the jurisdictional requirements, Plaintiffs must merely show that, at the time they filed suit, they had a good-faith belief that Defendants were in continuous or intermittent violation of the CWA and the SMCRA. In a jurisdictional sense, then, this good-faith belief is an element of each of Plaintiffs’ claims. Accordingly, the Court must consider what constitutes a sufficient good-faith belief for jurisdictional purposes. In the district court case which eventually gave rise to the Supreme Court’s Gwaltney III decision, the Eastern District of Virginia considered this question: A useful analogy [for understanding good-faith belief] is the manner in which the federal courts treat the jurisdictional amount requirement in diversity cases.... In diversity cases, the question whether the jurisdictional amount is satisfied— and whether the court, ultimately, has jurisdiction — is not answered by whether the plaintiff ultimately recovers in excess of $10,000. Rather, the issue is whether the amount plaintiff stated in the original claim satisfies the amount, and is made in good faith.... [T]he test of good faith is whether it appears to be a legal certainty that the jurisdictional fact is not satisfied. Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd. (“Gwaltney I ”), 611 F.Supp. 1542, 1549 n. 8 (E.D.Va.1985) (citations omitted) (internal quotation marks omitted), aff'd, 791 F.2d 304 (4th Cir.1986) (“Gwaltney II ”), vacated on different grounds in Gwaltney III, 484 U.S. 49, 108 S.Ct. 376. In Gwaltney I, the district court found that “there was no certainty ... — legal, factual, or otherwise — that [the defendant’s] system would correct one of the two major violation problems for which this suit was brought — until nearly one year after the suit was filed.” Id. In view of that finding, that district court ruled that the Gwaltney I plaintiffs had sufficiently pled a violation in good faith. In the Complaint, Plaintiffs allege that, since mining began and through to the present day, Elk Run’s discharges into Laurel Creek from the East of Stollings Surface Mine and the White Castle No. 1 Surface Mine have resulted in extremely high conductivity levels in the creek, usually exceeding 1,000 |xS/cm and frequently exceeding 3,000 p,S/cm, when substantial and increasing aquatic life impacts occur as conductivity increases beyond 300 p,S/cm. See Compl. ¶¶ 32-43. They also allege that the EPA measured a West Virginia Stream Condition Index (“WVSCI”) score of 58.76-below the biological impairment threshold of 68-in Laurel Creek in 2007. See id. ¶ 41. Additionally, Plaintiffs allege that, since .mining began and through the present day, Alex Energy’s discharges into Robinson Fork from the Robinson North Surface Mine and the Wildcat Surface Mine have also resulted in extremely high conductivity levels in the stream, usually exceeding 1,000 |j,S/cm and frequently exceeding 3,000 |xS/cm. See id. ¶¶ 44-55. They further allege that the WVDEP classified Robinson Fork as biologically impaired due to ionic stress in 2008 and that, from 1998 to 2008, the WVDEP and the EPA measured the following WVSCI scores below the biological impairment threshold in Robinson Fork: 59.95 (1998), 50.95 (2003), 24.75 (2007), 61.78 (2007), and 61.53 (2008). See id. ¶ 52. Defendants do not challenge Plaintiffs’ contention .that they have sufficiently alleged, in good faith, that Defendants are in continuous of intermittent violation of the CWA and the SMCRA. The Court thus finds that both the CWA’s and the SMCRA’s requirement that the Complaint contain a good-faith allegation of continuous or intermittent violation against each Defendant has been met by Plaintiffs in this case. III. LIABILITY A. Legal Issues Before making any findings regarding liability, the Court must address arguments made by Defendants which, according to Defendants, bar this Court from ruling in favor of Plaintiffs or, in the alternative, limit and direct this Court’s analysis. 1. Effectively creating a conductivity water quality effluent limit Defendants argue that this Court cannot rule in Plaintiffs’ favor because doing so would effectively create a conductivity water quality effluent limit — precisely the action which a federal district court, in National Mining Association v. Jackson, 880 F.Supp.2d 119, 137-38 (D.D.C.2012), ruled to be beyond the authority of the EPA, despite the EPA’s otherwise broad powers under the CWA. First, the Court notes that the operative document in Jackson was the EPA’s July 21, 2011, Final Guidance document, entitled “Final Memorandum: Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order.” See id. at 127. In contrast, the document which Plaintiffs referenced at trial and to which Defendants here object is an entirely different document, released by the EPA in March 2011 and entitled “A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams” (“EPA’s Benchmark”). Pis.’ Ex. 9. In Jackson, through its Final Guidance, the EPA exceeded its authority under the CWA and the SMCRA by effectively establishing a region-wide water quality standard. See Jackson, 880 F.Supp.2d at 127, 138. However, here, in its Benchmark, the EPA is acting within the core of its authority by publishing a scientific study, within its area of expertise, regarding the causal relationship between conductivity levels and biological impairment. Cf. Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832, 869 (9th Cir.2003) (“We treat [the] EPA’s decision with great deference because we are reviewing the agency’s technical analysis and judgments, based on an evaluation of complex scientific data within the agency’s technical expertise.”) Importantly, unlike Jackson, this case does not result from a direct assertion of regulatory authority by the EPA. Instead, this case is a citizen suit, brought under 33 U.S.C. § 1365, which alleges that Defendants violated a term in their permits by discharging materials which have caused or materially contributed to a significant adverse impact to the chemical or biological components of aquatic ecosystems, in violation of West Virginia’s narrative water quality standards. The EPA’s Benchmark is not relied upon by Plaintiffs to demonstrate that the EPA set a particular effluent limit which, if exceeded, automatically results in a violation of water quality standards, and the Court will not treat it as such. Instead, it is used by Plaintiffs as a scientific study, among others, which supports Plaintiffs’ general causation argument that high conductivity levels in streams, caused by surface mining, lead to the extirpation of some types of benthic macroinvertebrates. Thus, Defendants’ comparison of this case to Jackson is inap-posite. The holdings in Jackson simply do not apply to this case. 2. Deference to the WVDEP’s or the West Virginia Legislature’s interpretations In the alternative, Defendants argue that this Court must follow the WVDEP’s and/or the West Virginia legislature’s interpretations and guidance regarding West Virginia’s water quality standards when analyzing Plaintiffs’ evidence and arguments. Specifically, Defendants argue that the Court must follow: 1) the WVDEP’s assessment that high conductivity levels do not cause low WVSCI scores, as explained in its August 12, 2010, “Justification and Background for Permitting Guidance for Surface Coal Mining Operations to Protect West Virginia’s Narrative Water Quality Standards, 47 C.S.R. 2 §§ 3.2.e and 3.2.i” (“WVDEP’s Guidance”), Joint Ex. 55; 2) the WVDEP’s instruction, also in its Guidance, that a stand-alone WVSCI score cannot be the sole determinant of compliance with West Virginia’s narrative water quality standards and that, instead, analysis of the phrase “significant adverse impact” in the water quality standards requires a holistic approach, through which the investigator must determine whether a material decline in the overall health of an aquatic system has occurred; 3) the West Virginia legislature’s instruction, through its passage of House Concurrent Resolution 111 (“H.C.R. Ill”) and of Senate Bill 562 (“S.B. 562”), and the WVDEP’s instruction, in its Guidance, that this holistic approach requires proof of effects on fish, not just invertebrates, in order to find a violation; and 4) the WVDEP’s instruction, in its Guidance, that the proper WVSCI score at which to list a stream as “impaired” under Section 303(d) of the CWA is 60.6, not 68. The Court will address each of these arguments in turn. a. The WVDEP’s assessment that high conductivity levels do not cause low ’WVSCI scores Regarding its finding that there is no causative effect between high conductivity and low WVSCI scores, the WVDEP, in its Guidance, states: [The] EPA has recently set a numeric limit on conductivity at 500 p,S/cm, finding that conductivity levels below 300 |xS/cm generally will not cause a water quality standard violation and that in-stream conductivity levels above 500 I^S/cm are likely to be associated with adverse impacts that may rise to the level of exceedances of narrative state water quality standards. However, [the WVjDEP’s data shows that more than a simple conductivity measurement is necessary to determine the health of a stream.... [A] stream can have a low level of specific conductance and a WVSCI score firmly within the range for impairment; conversely, a stream can have a high level of specific conductance and a WVSCI score that indicates the stream is above the threshold for impairment. WVSCI scores are affected by many factors: habitat, other uses of the stream and the surrounding land, other pollutants unrelated to conductivity (e.g. fecal coliform), inter alia. Certain stream reaches simply cannot attain a “good” WVSCI score because of those factors. [The WVJDEP has performed a correlative evaluation of benthic condition and specific conductance. This evaluation suggests that native aquatic life is protected at various values and ranges of specific conductance. This finding supports the basic scientific principle that correlation is not cause and effect. WVDEP’s Guidance at 5-6 (footnote omitted). At this point in the Guidance, the WVDEP is explaining its choice to not require a specific numeric limit on conductivity in order to meet the state’s water quality standards, despite the EPA’s apparent insistence that it do so. Importantly, here, the WVDEP is not directly interpreting its own regulations or any of the state statutes which it administers. The Court can find no basis for substituting the WVDEP’s general judgment that there is no causative effect between high conductivity and low WVSCI scores for the extensive scientific evidence in this case which reveals precisely this causative effect. The Court’s role in this citizen suit is to determine whether, despite inaction by the WVDEP, Defendants have been violating their permits by violating West Virginia’s water quality standards, the nonviolation of which is clearly required by their permits. See Elk Run Coal Co., Inc., 2014 WL 29562, at *3, *6. Just as the Court must find a violation if a defendant is exceeding a specific numeric effluent limit in its permit, the Court must find a violation here if Defendants’ dis-charges cause or materially contribute to a significant adverse impact to the chemical or biological components of aquatic ecosystems. W. Va.Code R. § 47-2-3.2.Í. Notably, the U.S. Supreme Court has recognized that the central purpose of a citizen suit under the CWA is to “permit[] citizens to abate pollution when the government cannot or will not command compliance.” Gwaltney III, 484 U.S. at 62, 108 S.Ct. 376. The Court will not adopt the WVDEP’s conclusion — contrary to the finding of the EPA and the weight of the scientific evidence in this case — that there can be no causative effect between high conductivity and low WVSCI scores. Instead, the Court will weigh all of the evidence, including the WVDEP’s Guidance— given that this document was admitted into evidence — , in determining if Defendants have violated their permits.. According any special weight in this process to the WVDEP’s unsubstantiated finding would be improper. b. The WVDEP’s instruction that a stand-alone WVSCI score cannot be the sole determinant of compliance with the narrative water quality standards and that proper analysis requires a holistic approach Regarding the need for a “holistic approach” — and not solely a stand-alone WVSCI score — in determining whether the state’s narrative water quality standards have been violated, the WVDEP, in its Guidance, states: [The] narrative water quality standards ... state[ ], in pertinent part, “No significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.” [The WV]DEP has determined that “significant adverse impact” is more than a change in the numbers or makeup of the benthic macroinvertebrate community in a segment of a water body downstream from a point source discharge. It is, instead, a material decline in the overall health of an aquatic ecosystem[, a dynamic complex of plant, animal, and microorganism communities and their nonliving environment interacting as a functional unit within water]. A goal of the CWA and the [West Virginia Water Pollution Control Act (“WVWPCA”) ] is to protect the aquatic ecosystem as a whole; it is a holistic standard that requires a holistic approach to ecosystem assessment. In contrast to numeric water quality criteria, which can be applied by analysis of samples of water taken at any discharge or monitoring point in a stream, compliance with a standard that protects the aquatic ecosystem must be assessed in the broader area comprising the ecosystem. An ecosystem does not exist at a single point and, accordingly, its health cannot be assessed at a single point. [WVSCI is] not [a] stand-alone determinant[ ] of compliance with the narrative standard. [The WV]DEP continues its existing practice of using WVSCI in addition to consideration of other factors affecting the aquatic ecosystem to enforce its narrative water quality standards.... [WVSCI] was specifically designed for assessment of the biological component of the 47 C.S.R. 2 § 3.2.i narrative criteria and [is] used as a tool in developing the Impaired Streams List (“303(d) List”).... WVSCI scores are affected by many factors: habitat, other uses of the stream and the surrounding land, other pollutants unrelated to conductivity (e.g. fecal eoliform), inter alia. Certain stream reaches simply cannot attain a “good” WVSCI score because of those factors. Where the only impacts to this component of the ecosystem [i.e., the benthic macroinvertebrate community] are diminished numbers of certain genera of mayflies, without evidence that this has had any adverse impact of any significance on the rest of-the ecosystem, the State cannot say that there has been a violation of its narrative standard. WVDEP’s Guidance at 2, 3 & n. 7, 4-6. It is apparent to the Court that, through its Guidance, the WVDEP intends to interpret the biologically-based subset of the state’s narrative water quality standards under West Virginia Code of State Rules § 47-2-3.2. Section 47-2-3.2 is part of a legislative rule originally proposed by the WVDEP and necessarily affirmed through a legislative authorization process, as required by West Virginia Code Chapter 29A. See W. Va.Code § 29A-l-2(d) (“Unless lawfully promulgated as an emergency rule, a legislative rule is only a proposal by the agency and has no legal force or effect until promulgated by specific authorization of the legislature.” (emphasis added)); W. Va.Code R. § 47-2-1.2, -1.4. A reviewing court is only required to afford deference, if any, to an agency’s interpretation of its own legislative rule if the regulation contains an ambiguity. Cookman Realty Grp., Inc. v. Taylor; 211 W.Va. 407, 566 S.E.2d 294, 298 (2002). “In the absence of any definition of the intended meaning of words or terms used in a regulation, they will be given their common, ordinary and accepted meaning in the connection in which they are used.” Lawyer Disciplinary Bd. v. Smoot, 228 W.Va. 1, 716 S.E.2d 491, 502 n. 23 (2010) (brackets omitted) (internal quotation marks omitted). A court interpreting a statute has a “duty to avoid whenever possible an application of a statute which leads to absurd, inconsistent, unjust or unreasonable results.” Davies v. W. Va. Office of Ins. Comm’r, 227 W.Va. 330, 708 S.E.2d 524, 530 (2011) (brackets omitted) (internal quotation marks omitted). “Where a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made.” Id. (internal quotation marks omitted). “In giving effect to a word employed in a legislative enactment, it is a fundamental principle of statutory construction that the meaning of a word cannot be determined in isolation, but it must be drawn from the context in which it is used.” Osborne v. United States, 211 W.Va. 667, 567 S.E.2d 677, 684 (2002) (brackets omitted) (internal quotation marks omitted). “Additionally, in the interpretation of statutes, words and phrases therein are often limited in meaning and effect, by necessary implications arising from other words or clauses thereof.” Id. (brackets omitted) (internal quotation marks omitted). Section 47-2-3.2 — the rule which the WVDEP intends to partially interpret in the Guidance passages quoted above— states, in pertinent part: No ... 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; [and] 3.2.i. Any other condition ... which adversely alters the integrity of the waters of the State ...; no significant adverse impact to the chemical, physical, hydro'logic, or- biological components of aquatic ecosystems shall be allowed. W. Va.Code R. § 47-2-S.2, -3.2.e, -3.2.L Plaintiffs bring this case under subsections 3.2.e and 3.2.L None of the operative wording in either subsection appears in the definitions sections which apply to § 47-2-3.2. See W. Va.Code § 22-11-3; W. Va.Code R. § 47-2-2. The Court finds that subsection 3.2.e, when read alone, is unreasonable and creates an absurdity. Giving the operative words in subsection 3.2.e their common, ordinary and accepted meaning in the context in which they are used, a literal reading of subsection 3.2.e leads to the conclusion that any wastes which materially contribute to even the most miniscule harm to a single aquatic creature result in a violation of West Virginia’s narrative water quality standards. On the other hand, the final directive in the narrative water quality standards— “no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed” — appears after a semicolon in subsection 3.2.L The placement of this directive at the end of all of the narrative water quality standards — and the fact that it is clearly grammatically unmoored from the introductory wording of § 47-2-3.2, which states, “No ... wastes present in any of the waters of the state shall cause therein or materially contribute to any of the following conditions thereof ... ” — indicates to this Court that the directive informs each of the specific subsections listed before it. In order to avoid an absurdity and based upon the grammatically distinct structure of this final directive, it appears to this Court that the directive “no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed” modifies subsection 3.2.e, such that “harm” to “aquatic life” requires a showing of a “significant adverse impact to the ... biological components of aquatic ecosystems.” However, the operative phrases in subsection 3.2.i — “significant adverse impact” and the “biological components of aquatic ecosystems” — are ambiguous. The U.S. Supreme Court has ruled that “[w]hen a[ ] [federal] agency interprets its own regulation, [a federal court], as a general rule, [must] defer[ ] to it unless that interpretation is plainly erroneous or inconsistent with the regulation.” Decker v. Nw. Envtl. Def. Ctr., — U.S. -, 133 S.Ct. 1326, 1337, 185 L.Ed.2d 447 (2013) (internal quotation marks omitted). On the other hand, in this case, the Court is dealing with a state agency’s interpretation of a state legislative rule, which was necessarily promulgated through both the agency’s and the state legislature’s action. The West Virginia Supreme Court of Appeals has not ruled as to what level of deference, if any, a state agency’s interpretation of a state legislative rule should receive. See Cookman Realty Grp., 566 S.E.2d at 298. Nevertheless, this Court finds that West Virginia law regarding interpretive and legislative rules resolves the issue. West Virginia Code § 29A-l-2(i) defines the word “rule” as follows: “Rule” includes every regulation, standard or statement of policy or interpretation of general application and future effect, including the amendment or repeal thereof, affecting private rights, privileges or interests, or the procedures available to the public, adopted by an agency to implement, extend, apply, interpret or make specific the law enforced or administered by it or to govern its organization or procedure, but does not include regulations relating solely to the internal management of the agency, nor regulations of which notice is customarily given to the public by markers or signs, nor mere instructions. Every rule shall be classified as “legislative rule,” “interpretive rule” or “procedural rule,” all as defined in this section, and shall be effective only as provided in this chapter. W. Va.Code § 29A-l-2(i) (emphasis added). West Virginia Code § 29A-l-2(d) deals with legislative rules: “Legislative rule” means every rule ... proposed or promulgated by an agency pursuant to this chapter. Legislative rule includes every rule which, when promulgated after or pursuant to authorization of the legislature, has (1) the force of law, or (2) supplies a basis for the imposition of civil or criminal liability, or (3) grants or denies a specific benefit. Every rule which, when effective, is determinative on any issue affecting private rights, privileges or interests is a legislative rule. Unless lawfully promulgated as an emergency rule, a legislative rule is only a proposal by the agency and has no legal force or effect until promulgated by specific authorization of the legislature. Except where otherwise specifically provided in this code, legislative rule does not include (A) findings or determinations of fact made or reported by an agency, including any such findings and determinations as are required to be made by any agency as a condition precedent to proposal of a rule to the legislature; (B) declaratory rulings issued by an agency pursuant to the provisions of section one, article four of this chapter; (C) orders, as defined in subdivision (e) of this section; or (D) executive orders or proclamations by the governor issued solely in the exercise of executive power, including executive orders issued in the event of a public disaster or emergency .... W. Va.Code § 29A-l-2(d) (emphasis added). West Virginia Code § 29A-l-2(c) deals with interpretive rules: “Interpretive rule” means every rule ... adopted by an agency independently of any delegation of legislative power which is intended by the agency to provide information or guidance to the public regarding the agency’s interpretations, policy or opinions upon the law enforced or administered by it and which is not intended by the agency to be determinative of any issue affecting private rights, privileges or interests. An interpretive rule may not be relied upon to impose a civil or criminal sanction nor to regulate private conduct or the exercise of private rights or privileges nor to confer any right or privilege provided by law and is not admissible in any administrative or judicial proceeding for such purpose, except where the interpretive rule established the conditions for the exercise of discretionary power as herein provided.... Where any provision of this code lawfully commits any decision or determination of fact or judgment to the sole discretion of any agency or any executive officer or employee, the conditions for the exercise of that discretion, to the extent that such conditions are not prescribed by statute or by legislative rule, may be established by an interpretive rule and such rule is admissible in any administrative or judicial proceeding to prove such conditions .... W.' Va.Code § 29A-l-2(c) (emphasis added). It is apparent to this Court that the WVDEP’s Guidance is an interpretive rule. The West Virginia Supreme Court of Appeals has clarified that, “ ‘[although [interpretive rules] are entitled to some deference from the courts, [they] do not have the force of law nor are they irrevocably binding on the agency or the court. They are entitled on judicial review only to the weight that their inherent persuasiveness commands.’ ” Hornbeck v. Caplinger, 227 W.Va. 611, 712 S.E.2d 779, 785 (2011) (quoting Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W.Va. 578, 466 S.E.2d 424, 444 (1995)); see also Cookman Realty Grp., 566 S.E.2d at 304-05 (Starcher, J., concurring) (“I discern no basis for affording Chevron deference to an agency’s informal interpretation of its own regulations, where we have otherwise refused to do so in the case of formal interpretive rules promulgated pursuant to the notice- and-comment provisions of W. Va.Code, 29A-3-8. Indeed, to do so would run afoul of the spirit, if not the letter, of the Legislature’s admonition that such interpretive rules should not be given controlling weight unless they are issued pursuant to a legislative grant of discretion .... ” (citation omitted)). Thus, the WVDEP’s Guidance is only due deference from this Court to the extent of its inherent persuasiveness. “[T]he rulings, interpretations and opinions of [an agency], while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Hornbeck, 712 S.E.2d at 785 (internal quotation marks omitted). “The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id. (internal quotation marks omitted). The WVDEP, through its Guidance, appears to interpret subsection 3.2.i — and, thus, also subsection 3.2.e — in two ways. First, it purports to further define the biological standard in subsection 3.2.i— “significant adverse impact to the ... biological components of aquatic ecosys-terns” — to mean “a material decline in the overall health of an aquatic ecosystem.” WVDEP’s Guidance at 3. Before coming to this conclusion, the WVDEP “recognizes” —but does not adopt through legislative rule-making — the West Virginia legislature’s resolution, through H.C.R. Ill, “[t]hat the requirements of the narrative criteria are met when a stream (a) supports a balanced aquatic community that is diverse in species composition; and (b) contains appropriate trophic levels of fish (in streams with sufficient flows to support fish populations); and (c) [sic] the aquatic community is not composed only of pollution tolerant species or 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).” Id. at 1. Second, the WVDEP purports to redefine the methodology used to find a violation of the biological standard in subsection 3.2.i to include a “holistic approach to ecosystem assessment,” which is wholly undefined except that it requires something more than solely obtaining a WVSCI score. Id. at 3-4. To the extent that the WVDEP further defines the biological standard in subsection 3.2.i to mean “a material decline in the overall health of an aquatic ecosystem” — with no further definition of “material,” “overall health” or “aquatic ecosystem” — , the Court sees no reason to defer to such an interpretation. This phrase merely restates the applicable standard — a “significant adverse impact to the ... biological components of aquatic ecosystems” — , such that it is not really an interpretation as much as a rewording. To the extent that Defendants argue that the WVDEP is interpreting subsection 3.2.i to incorporate the three-part test from H.C.R. Ill, the Court disagrees that the WVDEP has done so. To the extent that the WVDEP purports to redefine the methodology used to find a violation of the biological standard in subsection 3.2.i to include a “holistic approach to ecosystem assessment,” which is wholly undefined except that it Requires something more than solely obtaining a WVSCI score, the Court does not find such a redefinition persuasive or, indeed, even permissible. The profound issue with the WVDEP’s new-found “methodology” is that it is actually an absence of methodology. The WVDEP states that an undefined “holistic approach” is needed and that a low WVSCI score alone is not enough to find a violation, thus negating the WVDEP’s own previous practice of using WVSCI scores to define whether a violation of the biological standard in subséction 3.2.i was occurring, such that a stream needed to be listed as “impaired” under Section 303(d) of the CWA. See WVDEP Division of Water and Waste Management, 2012 Draft West Virginia Integrated Water Quality Monitoring and Assessment Report'15-16 (2012) (“WVDEP 2012 Draft Report”), Joint Ex. 119 at JE 316-317. The void created by the WVDEP in rejecting its prior practice of relying upón WVSCI scores is not filled by any other methodology. Instead, as indicated by the WVDEP’s more recent statements in West Virginia’s draft 2012 Section. 303(d) list of impaired waters, the WVDEP’s enforcement of the biological narrative water quality standards embodied in § 47-2-3.2.e and -3.2.i has come to nearly a standstill as a result of its current lack of a methodology for assessing violations of those standards. Id. at JE 316 (“In response to [S.B. 562, which requires that the WVDEP promulgate new rules incorporating the three-part test originally outlined in H.C.R. Ill], [the WV]DEP is not adding new biological impairments to the 2012 Section 303(d) list.”). As explained below, it is this very abdication of responsibility by the WVDEP which required the EPA to step in and conduct its own assessment of West Virginia’s biological narrative water quality standards — embodied in § 47-2-3.2.e and -3.2.i — for the purposes of completing West Virginia’s 2012 Section 303(d) list of impaired waters. Letter from Shawn M. Garvin, Regional Administrator, EPA, to Randy C. Huffman, Secretary, WVDEP, at 1 (Mar. 25, 2013) (“Mar. 25, 2013, Letter from EPA to WVDEP”), Joint Ex. 118 at JE 276; see also 33 U.S.C. § 1313(d)(1)(A), (d)(2). As explained earlier, the central purpose of a citizen suit under the CWA is to allow citizens to stop pollution when the government cannot or will not command compliance. To credit the WYDEP’s current position that there is no methodology for assessing West Virginia’s biological narrative water quality standards in § 47-2-3.2.e and —3.2.i—leading to no enforcement whatsoever — would be to contravene the very purpose of this citizen suit and to fail to enforce the CWA. This Court will not do so. Instead, this Court will continue to follow the WVSCI methodology for determining compliance with the biological narrative . water quality standards in § 47-2-3.2.e and -3.2.L There are multiple reasons which require this decision. First, WVSCI was the last methodology used by the WVDEP to define whether a violation of the biological standard in subsection 3.2.i was occurring, such that a stream needed to be listed as “impaired” under Section 303(d) of the CWA. Even in its 2012 Draft Report, despite adding no new biologically-impaired streams to West Virginia’s 303(d) list, the WVDEP retained previously-listed biologically-impaired streams, which had been included in the list in the past based upon WVSCI scoring. WVDEP 2012 Draft Report at JE 316; see Mar. |5, 2013, Letter from EPA to WVDEP at JE 276. Second, WVSCI is the methodology most recently used by the EPA to complete West Virginia’s 2012 Section 303(d) list of impaired waters. Further, the EPA — the final authority regarding whether a state’s narrative water quality criteria are being violated for the purposes of Section 303(d) listing — recently made the specific finding that WVSCI scores below 68 “indicate that [the] waters [at and in which such scores were assessed] do not achieve the West Virginia narrative criteria as applied to the aquatic life uses” — defined by the EPA to mean the biological standards embodied in § 47-2-3.2.e and -3.21 See Mar. 25, 2013, Letter from EPA to WVDEP at JE 295-96, 299; see also 33 U.S.C. § 1313(d)(2). c. The West Virginia legislature’s instruction, through its passage of H.C.R. 111 and of S.B. 562, and the WVDEP’s instruction, in its Guidance, that this holistic approach requires proof of effects on fish, not just invertebrates, in order to find a violation In 2010, the West Virginia legislature passed H.C.R. Ill, which states, in pertinent part: [West Virginia’s] narrative water quality-standards codified at 47 CSR 2-3 ... must be implemented and interpreted in a manner that is protective of aquatic communities consistent with the Legislature’s statement of public policy and applicable laws.... The State of West Virginia has not adopted subcategories of special use to protect a certain species of mayfly but protects the aquatic community consistent with the Legislature’s statement of public policy.... [A]ny interpretation and implementation of West Virginia’s narrative water quality standards is the responsibility of the [WVDEP].... [T]he requirements of the narrative criteria are met, when a stream (a) supports a balanced aquatic community that is diverse in species composition; and (b) contains appropriate trophic levels of fish (in streams with sufficient flows to support fish populations); and (c) [sic] the aquatic community is not composed only of pollution tolerant species, or 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).... H. Con. Res. Ill, 2010 Legis., Reg. Sess. (W.Va.2010). First, it is important to note that H.C.R. Ill is not a properly promulgated statute. Instead, it is a concurrent resolution; thus, according to the West Virginia Supreme Court of Appeals, it has no force of law, in and of itself. State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622, 633 (1981) (“Joint or concurrent resolutions, while they may bind the members of the legislative body, are not statutes and do not have the force and effect of law.”). Further, in H.C.R. Ill, the legislature explicitly states its intention to affect the interpretation of West Virginia’s narrative water quality standards, as embodied in West Virginia Code of State Rules § 47-2-3, which, as explained earlier, is part of a legislative rule originally proposed by the WVDEP — an administrative agency — and affirmed by the legislature. The West Virginia Supreme Court of Appeals has stated that, though “the Legislature has the power to void or to amend administrative rules and regulations, when it exercises that power it must act as a legislature ... within the confines of the enactment procedures mandated by [the West Virginia] [Constitution. It cannot invest itself with the power to act as an administrative agency in order to avoid those requirements.” Id.; see also id. at 634 n. 8 (“Regardless of its inherent efficiency, informal coercive review of executive rule making is not permissible in the presence of a constitutional mandate that the powers of government be maintained in separate and distinct branches.”). Here, it is apparent to the Court that the West Virginia legislature, through H.C.R. Ill, attempted to modify West Virginia’s narrative water quality standards. The specific modification detailed by the resolution is that a violation of West Virginia’s narrative water quality standards does not occur — although a violation of one of the subsections of § 47-2-3 would otherwise be found — “when a stream (a) supports a balanced aquatic community that is diverse in species composition; and (b) contains appropriate trophic levels of fish (in streams with sufficient flows to support fish populations); and (c) [sic] the aquatic community is not composed only of pollution tolerant species, or 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).” W. Va. H. Con. Res. 111. Though it is unclear whether the legislature intended to modify all of the subsections under § 47-2-3.2 by adding a biological component which is- clearly missing from the majority of the subsections as written or solely to modify subsections 3.2.e and/or 3.2.1, such attempted modification outside of constitutionally-mandated procedures has been declared null and void by the West Virginia Supreme Court of Appeals. Thus, this Court will give no weight to the legislature’s attempted modifications, in H.C.R. Ill, to West Virginia’s water quality standards. In 2012 — two years after H.C.R. Ill was passed and the WVDEP published its Guidance — , the West Virginia legislature passed S.B. 562. S.B. 562 states, in pertinent part: Be it enacted by the Legislature of West Virginia: That § 22-1 l-7b of the Code of West Virginia, 1931, as amended, be .amended and reenacted to read as follows: (f) The secretary shall propose rules measuring compliance with, the biologic component of West Virginia’s narrative water quality standard [sic] 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) [sic] 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 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. S.B. 562, 80th Leg., Reg. Sess. (W.Va. 2012) (emphasis omitted). The Court first notes that S.B. 562, unlike H.C.R. Ill, is a duly-enacted statute. However, S.B. 562 does not attempt to directly amend § 47-2-3.2.L Instead, the statute directs the WVDEP to promulgate legislative rules which will address how to measure compliance with the biological component of West Virginia’s narrative water quality standards and which will include 1) a requirement that the holistic health of the aquatic ecosystem be evaluated and 2) the specific three-part test regarding the composition of the aquatic community outlined in S.B. 562. The WVDEP will promulgate legislative rules pursuant to S.B. 562 in due time. In the interim, the Court may not, under the guise of “interpretation,” modify § 47-2-3.2.i based upon S.B. 562. See Cookman Realty Grp., 566 S.E.2d at 298. To summarize, this Court has found that 1) H.C.R. Ill lacks the force of law to directly modify § 47-2-3.2, 2) the WVDEP did hot adopt the three-part test from H.C.R. Ill through its Guidance, and 3) S.B. 562 does not directly modify § 47-2-3.2. Thus, the Court need not defer to this test even to the extent of its persuasiveness. Further, the test, itself, does not require proof of effects on fish in order to find a violation. The direct inverse of the test shows that a violation of West Virginia’s narrative water quality standards can occur “when a stream (a) [does not] support ] a .balanced aquatic community that is diverse in species composition; [or] (b)' [does not] contain[] appropriate trophic levels of fish (in streams with sufficient flows to support fish populations); [or ] (c) [sic] the aquatic community is [ ] composed only of pollution tolerant species [and] the aquatic community is [not] 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).” WVDEP’s Guidance at 1-2 (emphasis added). Thus, a violation of the narrative water quality standards occurs when any one of the three conditions above is met, including when a stream does not support a balanced aquatic community that is diverse in species composition. Fish are not mentioned at all in this first condition. d. The WVDEP’s instruction, in its Guidance, that the proper WVSCI score at which to list a stream as “impaired” under Section 303(d) of the CWA is 60.6, not 68 Defendants argue that Plaintiffs cannot prove a violation of West Virginia’s narrative water quality standards at a particular location by merely showing that a WVSCI score at that location falls below 68, particularly because the WVDEP historically did not list a stream as “impaired” under Section 303(d) of the CWA unless scores at the stream fell below 60.6; thus, according to Defendants, to the extent this Court relies on WVSCI scores in determining liability, it should only rely on scores below 60.6. Plaintiffs argue that the EPA 1) found the WVDEP’s use of 60.6 as the cutoff for impairment of streams to be “statistically unsupportable” and 2) declared that all scores within the “gray zone” between 60.6 and 68 indicate that the waters from which such scores were obtained “do not achieve the West Virginia narrative criteria as applied to aquatic life uses,” since 68 is the proper cutoff score. Pis.’ Post-Trial Brief at 21, ECF No. 106. Plaintiffs further argue that such findings by the EPA overrule any contrary findings by the WVDEP because the EPA declared that West Virginia’s narrative water quality standards are federal, not state, requirements. As explained earlier, WVSCI scoring was the most recent methodology used by the WVDEP — and is still used by the EPA — to determine whether West Virginia streams are biologically “impaired”— meaning that they are waters for which numeric effluent limitations are not stringent enough to maintain the biological narrative water quality standards embodied in § 47-2-3.2.e and —3.2.i—under Section 303(d) of the CWA. See 33 U.S.C. § 1313(d)(1)(A); Mar. 25, 2013, Letter from EPA to WVDEP at JE 293; WVDEP 2012 Draft Report at JE 316-317. Regarding the proper WVSCI score cutoff at which the WVDEP historically listed a stream as “impaired” under Section 303(d) of the CWA, the WVDEP’s Guidance states: Based on the 5th percentile of reference values, the current WVSCI score that indicates the integrity of a benthic ma-croinvertebrate community in West Virginia’s wadeable streams is 68.0. The threshold for inclusion on the 303(d) List has historically been 60.6. That value subtracts a precision estimate from the 5th percentile of reference values, and its historical use was intended to take into account sampling error and to aid [the WV]DEP in allocating its resources so as to avoid misclassifying non-impaired waters as impaired. WVSCI and its application in the 303(d) listing process are consistent with methodologies implemented to assess protection of aquatic ecosystems by all of West Virginia’s neighboring states. WVDEP’s Guidance at 5. The statute which requires the compilation of Section 303(d) lists of “impaired” waters by the states specifies: “Each State shall identify those waters within its • boundaries for which the effluent limitations ... are not stringent enough to implement any water quality standard applicable to such waters.” 33 U.S.C. § 1313(d)(1)(A). That same statute then states: Each State shall submit to the Administrator [of the EPA] from time to time ... for his approval the waters identified and the loads established under paragraph ](1)(A) ... of this subsection. The Administrator shall either approve or disapprove such identification and load.... If the Administrator approves such identification and load, such State shall incorporate them into its current plan.... If the Administrator disapproves such identification and load, he shall ... identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall incorporate them into its current plan.... Id. § 1313(d)(2) (emphasis added). EPA regulations delegate the authority of the Administrator of the EPA in § 1313(d)(2) to regional EPA administrators. 40 C.F.R. § 130.7(d). Thus, under federal law, an EPA regional administrator has the final authority to determine which waters within his region are “impaired” according to the water quality standards applicable to those waters. In March 2013, the EPA Regional Administrator for Region III partially approved and partially disapproved West Virginia’s 2012 Section 303(d) list of impaired waters, which had been submitted by the WVDEP. Mar. 25, 2013, Letter from EPA to WVDEP at JE 276-77. The partiál disapproval of the list, according to the Regional Administrator, was the result of the “WVDEP’s decision not to evaluate ... data regarding whether certain waters [were] achieving West Virginia’s narrative water quality criteria (W. Va. CSR § 47-2-3.2(e) & (i)) as applied to the aquatic life uses.” Id. at JE 276. As explained earlier, it was then — and is now — the WVDEP’s position that “pending completion and adoption by rulemaking of a new methodology, [the WVDEP] is precluded by [S.B. 562] from evaluating waters for [the] purposes of determining compliance with the narrative water quality criteria as applied to the aquatic life uses.” Id.; see also WVDEP 2012 Draft Report at JE 316. Thus, pursuant to its authority under § 1313(d)(2), the EPA conducted the evaluation of whether West Virginia’s waters were achieving the state’s biological narrative water quality standards using WVSCI — which had been used by the WVDEP for the development of West Virginia’s Section 303(d) lists since 2002 — , given that the WVDEP had “acknowledged in the past [that] WVSCI was a valid means of assessing compliance with West Virginia’s currently applicable narrative water quality criteria as applied to the aquatic life uses.” Mar. 25, 2013, Letter from EPA to WVDEP at JE 276. The EPA did note, however, that it did not incorporate into its evaluation the “statistically unsupported” “gray zone” of WVSCI scores ranging from 60.6 to 68, in which waters would be listed by the WVDEP aé neither impaired nor unimpaired. Id. at JE 277, 296. According to the Regional Administrator, by creating the “gray zone,” the WVDEP “double-count[ed]” what statistically should be only one adjustment for sampling variability. Id. at JE 298 (“[T]he potential variability for which the gray zone is purported to account already is accounted for by variability in the reference sites.”). The EPA thus determined that all streams with WVSCI scores below 68 were “impaired,” meaning that such “waters do not achieve the West Virginia narrative criteria as applied to the aquatic life uses,” embodied in § 47-2-3.2.e and -3.2.L See id. at JE 299. As explained earlier, the. WVDEP currently has no methodology for assessing whether violations of the biological narrative water quality standards embodied in § 47-2-3.2.e and —3.2.i are occurring, and in 2012, the WVDEP flatly refused to use-WVSCI scores, to make such determinations. Given that the EPA has final authority under Section 303(d) to determine whether a stream is biologically impaired, such that the narrative water quality standards embodied in § 47-2-3.2.e and -3.2.Í are being violated, given the EPA’s detailed and persuasive discussion of the statistical support for using 68 — and not 60.6 — as the cutoff, and given that the EPA’s determination appears to be the only presently espoused agency view on the issue, this Court will credit the EPA’s WVSCI score impairment threshold of 68 and not the WVDEP’s historical threshold of 60.6. B. Fact-Finding 1. General Causation As explained earlier, the Court is crediting the EPA’s specific finding — under its Section 303(d) authority — that a WVSCI score below the impairment threshold of 68 indicates a violation of West Virginia’s biological narrative water quality standards, as embodied in § 47-2-3.2.e and -3.2.i, in the stream where the score was assessed. However, that finding does not specify the cause of such low scores, as there are many possibilities. Plaintiffs’ general causation theory in this case is that 1) surface mining causes — or at least materially contributes to — high conductivity in adjacent streams and, 2) controlling for other potential confounding factors, high conductivity in streams is scientifically proven to cause or materially contribute to a significant adverse impact to the chemical or biological components of aquatic ecosystems — proof of which can be shown through low WVSCI scores.. The Court will n