What You Can’t Put a Dollar Sign On

Coon Run doesn’t have a lobbying budget. It can’t file a complaint with the EPA. It cannot retain counsel at Daniels Law Firm, PLLC in Charleston and fight back. It is a tributary stream in Marshall County, West Virginia, and for a stretch of 500 linear feet, it was simply covered up — entombed under a pair of industrial culverts, each one 10 feet across and the length of nearly two city blocks, dropped directly onto a living streambed and surrounded with boulders.

Streams are not decoration. Coon Run feeds into the Ohio River, one of the most important freshwater systems in the eastern United States. The organisms that live in streams like this — the macroinvertebrates, the larvae, the bottom-dwelling creatures that most people never think about — are the foundation of the food web. When EPA scientists sampled the water in October 2023, they found that the population of these organisms had already collapsed in the stretch adjacent to the culverts and downstream of them. Compared to the unaffected section of the same stream just a short distance upstream, the difference was stark. The culverts were described in official documentation as “fragmenting the habitat.” Habitat fragmentation is a clinical phrase for something visceral: creatures that need to move through the stream to feed, breed, and survive could no longer do it. The culverts had turned a corridor into a wall.

Fine sediment — 12 to 14 inches of it — had accumulated on top of the natural streambed. The original substrate, the gravel and rock and organic matter that aquatic life depends on, was buried under material Litman had displaced. The culverts themselves were already failing. EPA inspectors noted they were “misshapen” and “buckling.” The stream flow underneath them was obstructed. Where water did escape, it carved scour pools at the outfall points — the stream’s kinetic energy redirected into erosion rather than the natural movement of a healthy waterway.

Downstream, the channel was narrowing. Deposition was building up on one bank while erosion carved into the other. The geometry of the stream — the physical architecture shaped over decades or centuries of natural flow — was being rewritten by the consequences of a decision made by an excavation company trying to complete a job faster or cheaper than the permitted method required.

Nobody who fishes the Ohio River’s tributaries gets a notification when a contractor buries a feeder stream. Nobody whose drinking water depends on that watershed gets a hearing. The people most likely to feel the downstream effects of what Litman did in Marshall County are the same people who have watched coal mines, gas wells, and industrial operations transform this corner of West Virginia for generations. The consent order obligates restoration. Restoration takes years. The monitoring plan runs five years past completion. The stream that existed before August 2022 may never fully return.

Robert Litman, President of Litman Excavating, signed the consent order. His signature appears on the last page. Whatever restoration work his company now performs will happen because regulators caught them, not because the company chose accountability.

Straight from the Documents

The following are direct quotes from U.S. EPA Docket No. CWA-03-2024-0072DW, the Administrative Order on Consent signed by both Robert Litman, President of Litman Excavating, Inc., and Karen Melvin, Director of the Enforcement and Compliance Assurance Division at U.S. EPA Region 3. These are not paraphrases.

“At no time relevant to this Order did Respondent have a permit to discharge dredged and/or fill material into Coon Run.” — U.S. EPA, Docket No. CWA-03-2024-0072DW, Finding of Fact No. 18

The Damage That Doesn’t End at the Property Line

Environmental Degradation

The documented environmental harm from this case extends across the stream ecosystem, the downstream Ohio River watershed, and the long-term ecological integrity of a permanently altered tributary.

• 600 linear feet of a protected waterway was physically buried. Coon Run is a “relatively permanent tributary” to the Ohio River, classified as “waters of the United States” under Section 502(7) of the Clean Water Act. This was not a roadside ditch. It was a federally protected waterway whose integrity is linked to the health of one of the most heavily used rivers in the American Midwest.
• Aquatic macroinvertebrate populations were scientifically confirmed to have degraded. EPA’s October 2023 Bioassessment Report documented measurable population collapse in the impacted zone compared to the upstream control site. Macroinvertebrates are the baseline indicator species for stream health; their decline signals system-wide ecological disruption.
• Habitat fragmentation severed the stream corridor. The culverts created a physical barrier preventing species movement through the stream. In small tributary systems, this type of fragmentation can collapse local populations that depend on longitudinal connectivity to feed and reproduce.
• The natural streambed was buried under 12 to 14 inches of fine sediment. The original substrate — the ecological foundation for spawning, burrowing invertebrates, and stream-adapted vegetation — was smothered. Restoration of this substrate is possible but not guaranteed to return the stream to its pre-disturbance biological community.
• Stream channel geometry was permanently altered. EPA inspectors documented downstream deposition on the left bank, erosion on the right bank, and narrowing of the natural channel. These morphological changes alter flow velocity, sediment transport, and the physical template on which all other ecological processes depend.
• The culverts were already structurally failing at the time of inspection. Buckling culverts sitting on a buried streambed — with scour pools at the outfalls and obstructed flow — represent an active, ongoing source of instability. The longer they remained in place, the greater the downstream sediment loading and the risk of catastrophic failure.

Public Health

The Ohio River is a drinking water source for an estimated 5 million people across multiple states. The violation’s location in Marshall County, West Virginia places the damage in a direct upstream relationship to that system.

• Unauthorized fill discharges into Ohio River tributaries introduce sediment, altered chemistry, and biological disruption into a drinking water source watershed. The EPA’s own authority in this case is grounded in the Clean Water Act’s purpose: protecting the navigable waters of the United States. Coon Run’s connection to the Ohio River means the damage at this site is damage upstream of communities that depend on that river for their water supply.
• Marshall County, West Virginia sits in a region with a documented history of environmental health burdens from industrial extraction. When regulators fail to prevent waterway violations or take over a year to translate a Cease and Desist letter into an enforceable order, the cumulative burden lands on communities that are already dealing with compromised environmental conditions. The consent order’s monitoring obligations extend five years past restoration completion — a tacit acknowledgment that public health consequences may persist long after the culverts are removed.
• The collapse of macroinvertebrate populations has direct food web implications. Fish that local communities may depend on for subsistence fishing are predators of the very organisms that were documented as degraded in EPA’s bioassessment. Stream-by-stream, violation-by-violation, these cumulative impacts reduce the ecological capacity of a watershed to support the communities living within it.

Economic Inequality

The structure of this enforcement action reflects a pattern where the financial burden of corporate environmental shortcuts is transferred to the public — in monitoring costs, ecological services lost, and the multi-year restoration timeline imposed on a community that had no role in creating the damage.

• The property where this damage occurred is owned by CNX PCPC LLC, not by Litman Excavating. The consent order holds the operator liable, not the landowner. CNX PCPC LLC — a name associated with the fossil fuel extraction industry operating in this region — received the direct economic benefit of the road widening project and bears no documented restoration obligation in this order. The company whose land hosted the violation walks away from the consent order untouched.
• The restoration timeline is five-plus years, during which the stream remains degraded. Residents of Marshall County — one of the poorer counties in West Virginia, a state that consistently ranks at or near the bottom of national economic and health indicators — bear the continued environmental cost of the violation while the restoration process runs its legal course. They did not receive compensation.
• The consent order imposes no financial penalty on Litman for the violation itself. The entire enforcement mechanism is restorative, not punitive. Litman pays to clean up its own mess and submits monitoring reports. If the company complies, it faces no further financial consequences for having illegally buried 600 feet of a protected waterway for five months. The mechanism that was supposed to deter this — permit compliance — was simply ignored, and the price of that choice is a cleanup obligation that the company would likely have incurred in some form anyway as part of completing the road project.
• Communities without legal or scientific resources cannot challenge these violations independently. The enforcement here was initiated by the Army Corps of Engineers and the EPA — federal agencies with the technical capacity to detect and document what happened. Ordinary residents near Moundsville who noticed something wrong with Coon Run had no equivalent investigative apparatus. The system worked, this time, because a federal agency was watching. That is not guaranteed.

What the Numbers Actually Say

What You Can Do About This

The consent order is signed and the restoration clock is running, but compliance is only as real as the oversight enforcing it. Here is what accountability looks like from outside the agency walls.

The People Who Signed This Order

• Robert Litman, President, Litman Excavating, Inc. — The signatory for the respondent. His company is bound by the order’s terms. 836 1st Street, New Martinsville, WV 26155. Contact: blitman@litmanexcavating.com (per Certificate of Service).
• Karen Melvin, Director, Enforcement and Compliance Assurance Division, U.S. EPA Region 3 — The EPA signatory. Her division is responsible for monitoring compliance with this order.
• Katelyn Almeter, Enforcement and Compliance Assurance Division, U.S. EPA Region 3 — The designated EPA contact for all correspondence related to this order. almeter.katelyn@epa.gov
• Norman Daniels, Esq., Daniels Law Firm, PLLC — Respondent’s legal counsel. P.O. Box 1433, Charleston, WV 25325.

Watchlist: Regulatory Bodies With Jurisdiction

• U.S. EPA Region 3 (Philadelphia) — Primary enforcement authority on this order. File public comments or requests for compliance status via R3_ORC_mailbox@epa.gov with subject line referencing Dkt. No. CWA-03-2024-0072DW.
• U.S. Army Corps of Engineers, Pittsburgh District (LRP) — Issued the original Section 404 permit and the March 2023 Cease and Desist letter. The Corps retains independent authority to monitor Section 404 compliance.
• West Virginia Department of Environmental Protection (WVDEP) — Issued the state NPDES stormwater permits. Has independent state-level jurisdiction over stormwater and erosion control compliance at the site.
• U.S. Department of Justice, Environment and Natural Resources Division — The EPA explicitly reserves the right to refer this matter for judicial civil or criminal proceedings. DOJ is the prosecution arm if criminal sanctions under 33 U.S.C. § 1319(c) are pursued.

Direct Action and Grassroots Resistance

• Request the annual monitoring reports. The consent order mandates that Litman submit monitoring data to EPA by December 31st each year for five years post-restoration. These reports are public records. File a Freedom of Information Act (FOIA) request with EPA Region 3 to obtain each one as it is filed. If the data shows the stream is not recovering, that is grounds for escalated enforcement.
• Connect with West Virginia water advocacy organizations that monitor Clean Water Act compliance in the Ohio River watershed, including the Ohio Valley Environmental Coalition (OVEC) and the West Virginia Rivers Coalition. These groups have the scientific and legal capacity to interpret monitoring data and amplify violations that regulators might let slide.
• Demand that CNX PCPC LLC, as the property owner where this violation occurred, publicly account for its role in selecting and supervising the operator responsible for this damage. The consent order does not bind the landowner. Public pressure is the only mechanism that reaches them directly.
• If you live in Marshall County or downstream of this site, document your local observations of Coon Run during the restoration period. Photographs, videos, and written accounts of the stream’s condition create an independent evidentiary record that can support enforcement if Litman’s own monitoring reports are incomplete or misleading.
• Support state legislative efforts in West Virginia to strengthen civil penalty enforcement under the state Clean Water Act. The federal consent order imposes no financial penalty. State-level penalties are the next available deterrent layer, and they require legislative will to function.