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  LRH 2015-0393-NEW Drawings
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LRH 2015-0393-NEW

Posted: 9/7/2017

Expiration date: 10/6/2017


TO WHOM IT MAY CONCERN:  The following applicant has submitted an application for a Department of the Army Permit under the provisions of Section 404 of the Clean Water Act for the proposed discharge of dredged and/or fill material into waters of the United States (U.S.). This notice serves as the U.S. Army Corps of Engineers’ (Corps) request to the West Virginia Department of Environmental Protection (WVDEP) to act on the Section 401 Water Quality Certification (WQC) for the following application.

 

APPLICANT:            Pocahontas Coal Company, LLC

                                    109 Appalachian Drive

                                    Beckley, West Virginia 25801

 

LOCATION:  The proposed project is located at approximate Latitude N 37° 42’ 38”, Longitude W 81° 14’ 02”, in unnamed tributaries of Soak Creek, approximately 0.3 miles southeast of the Town of Midway, in the Slab Fork Districts of Raleigh County, West Virginia.  See attached Sheets 1 of 12 through 3 of 12 for a depiction of the proposed project location. Soak Creek flows into Piney Creek, a tributary of the New River, a navigable water of the U.S.     

 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a Department of the Army permit to discharge dredged and/or fill material into 2,540 linear feet (0.197 acre) of ephemeral and intermittent streams and 0.454 acre of wetland, as indicated on Sheets 5 of 12 through 9 of 12, in association with the construction of the Affinity Mine Midway Refuse Storage Facility, as described in Tables 1 and 2. The proposed storage facility would accommodate refuse from an existing adjacent Affinity preparation plant, referred to as the Affinity Preparation Plant (WVDEP O-0135-83). The proposed refuse storage area would include the construction of a refuse area and surface water runoff treatment structures and the associated outlets. Construction of the refuse storage facility would result in the permanent discharge of dredged and/or fill material into 1,928 linear feet (0.165 acre) of intermittent stream, 406 linear feet (0.018 acre) of ephemeral stream, and 0.454 acre of wetland and the temporary discharge of dredged and/or fill material into 206 linear feet (0.014 acre) of intermittent stream, as described in Tables 1 and 2 (see attached Sheets 5 of 12 through 9 of 12).

 The proposed refuse storage facility is currently under review by the WVDEP under Article 3 permit O-3006-16, pursuant to the Surface Mining Control and Reclamation Act of 1977, and under National Pollutant Discharge Elimination System (NPDES) permit WV1028944. The purpose of the proposed project is to facilitate the continued storage of refuse materials, which are being generated from the adjacent Affinity preparation plant which, in turn, allows for the continued extraction of metallurgical grade bituminous coal from the Affinity mine (WVDEP permit U-0152-82). A copy of the application, including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.), are available for public review in the Huntington District Office, by appointment.

 

ALTERNATIVES ANALYSIS:  A total of 2,334 linear feet (0.183 acre) of streams and 0.454 acre of wetland would be permanently filled by the proposed project and a total of 206 linear feet (0.0104 acre) of stream would be temporarily filled by the proposed project.  The project does not require access or proximity to, or siting within, the wetlands to fulfill its basic purpose and is considered a non-water dependent activity.  The Section 404(b)(1) Guidelines state for non-water dependent activities, practicable alternatives that do not involve a discharge into special aquatic sites such as wetlands are presumed to be available, unless clearly demonstrated otherwise.  The applicant is required to provide an alternatives analysis that must overcome this presumption prior to receiving authorization for the discharge of dredged and/or fill material. The applicant has submitted the required alternatives analysis and it is currently under review.  A complete copy of the applicant’s alternatives analysis can be reviewed by appointment at the above address.  The applicant has indicated the proposed refuse storage facility is needed to facilitate the continued storage of refuse materials, which are being generated from the adjacent Affinity preparation plant. The applicant evaluated 12 potential overburden disposal sites based on numerous criteria including storage capacity, stability, distance, cost, property control, and impacts to aquatic resources.  Based on this evaluation, the applicant selected Site 12 as its preferred alternative.  No permit will be issued until we have determined that the alternative analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.

AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the U.S., consideration must be given to avoiding impacts on these sites. If waters of the U.S. cannot be avoided, then impacts must be minimized.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed project. Temporary sediment controls such as silt fence, straw bales, rock checks, dikes, and/or protective stream barriers would be used to prevent and minimize downstream sedimentation.  In-stream construction activities would occur during low flow periods to the greatest extent practicable. The applicant would utilize best management practices (BMPs), based on the guidance from the “Technical Handbook of Standards and Specifications for Mining Operations in West Virginia,” to protect water quality during mining and after the project is completed by following the requirements of the NPDES program. Proposed measures to minimize elevated downstream ionic strength would include: adhering to the underdrain material handling plan and the reclamation plan; using durable, non-toxic rock for the refuse underdrain system; wrapping the underdrain rock with filter fabric; minimizing water contact with the discharged material; and timely re-vegetation and stream restoration.

COMPENSATORY MITIGATION PLAN:  The applicant used the Corps’ West Virginia Stream and Wetland Valuation Metric to determine the impact debits and compensatory mitigation credits.  To compensate for the losses of waters of the U.S. associated with the proposed project, the applicant proposes: on-site re-establishment of 260 linear feet of intermittent stream; on-site establishment 250 linear feet of intermittent stream and 2,050 linear feet of ephemeral stream; and off-site establishment of 450 linear feet of ephemeral stream channel, as described in Table 3 (See Sheet 10 of 12). Riparian buffers, ranging in size from 60 feet to 150 feet, would be established along the established and re-established streams, as described in Table 3 (see Sheets 11 of 12 and 12 of 12).  The proposed on-site and off-site stream mitigation would occur after project completion and the regrading, revegetation, and reclamation of WVDEP-SMCRA permitted areas to Phase II bond release standards. Long-term site protection would be provided for each mitigation site. The applicant’s compensatory mitigation plan includes a 10-year monitoring and adaptive management plan to assess the success of the mitigation sites using geomorphic, biological, and habitat assessment tools. In addition, to compensate for the loss of wetlands associated with the proposed project, the applicant proposes purchase wetland mitigation credits from the West Virginia In-Lieu Fee Program.

 

WATER QUALITY CERTIFICATION:  A Section 401 WQC is required for the proposed activity. The applicant has applied for an individual WQC with the WVDEP 

 

HISTORIC AND CULTURAL RESOURCES:  The National Register of Historic Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the NRHP that would be indirectly or directly affected by the proposed work.  In a letter dated September 13, 2016 (File No. FR#16-935-RG), the West Virginia Division of Culture and  History, the West Virginia State Historic Preservation Office (SHPO), stated “there are no architectural properties which are eligible for or listed in the National Register of Historic Places within the direct or indirect Area of Potential Effects.” The SHPO also stated that a “search of our records indicates that there are no recorded archaeological resources located within the immediate vicinity of the proposed project area. Furthermore, available information demonstrates that 21.18 acres of the proposed project area have been previously disturbed. Additionally, available information indicates that the proposed project is situated on steep terrain. Combined these factors make it unlikely that significant archaeological resources would be encountered within the proposed project area. In our opinion, the proposed project will have no effect to archaeological resources. No further consultation is necessary with respect to archaeological resources.” Based on the above, the Corps has determined the undertaking would have no effect on properties listed or eligible for listing on the NRHP.  This Public Notice serves as coordination with the SHPO, pursuant to Section 106 of the National Historic Preservation Act of 1966. A copy of this Public Notice will be furnished to the SHPO for their review.  Comments concerning archaeological sensitivity of the project area should be based on collected data.

  

THREATENED AND ENDANGERED SPECIES:  The proposed project lies within the range of the Federally-listed endangered Indiana bat (Myotis sodalis) and the Federally-listed threatened northern long-eared bat (Myotis septentrionalis).  The applicant submitted a “Request for Endangered Species Consultation” to the WVDEP. By letter dated September 6, 2016, the WVDEP stated the “the project is below the 40 acre exemption as per the Range-wide Indiana Bat Protection and Enhancement Plan Guidelines for Surface Coal-Mining Operations and it not located within ¼ mile of a known hibernacula and not within 150’ of any known maternity roost as per the Services’ 4(d) Rule for the northern long-eared bat. So therefore the project will not require any other information at this time.” The WVDEP also examined the area regarding winter habitat and determined there are no caves, portals, or openings located within or adjacent to the site. The WVDEP examined the current data for proximal threatened and endangered species present in relation to the proposal area and determined none have been indicated.

Based on this information, the proposed project is not likely to adversely affect the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of habitat of such species which has been determined to be critical. This Public Notice serves as coordination with the U.S. Fish and Wildlife Service concerning any information they may have on whether any listed or proposed to be listed endangered or threatened species may be present in the area which would be affected by the activity, pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended).

PUBLIC INTEREST REVIEW AND CUMULATIVE EFFECTS:  This application will be reviewed in accordance with 33 CFR 320-332, the Regulatory Program of the Corps, and other pertinent laws, regulations, and executive orders. Our evaluation will also follow the guidelines published by the U.S. Environmental Protection Agency pursuant to Section 404(b)(1) of the Clean Water Act (40 CFR 230). The decision whether to issue a permit will be based on an evaluation of the probable impact, including cumulative impacts, of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit that reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. All factors that may be relevant to the proposal will be considered, including the cumulative effects thereof; of those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.

 

SOLICITATION OF COMMENTS:  The Corps is soliciting comments from the public, Federal, state and local agencies and officials, Indian Tribes, and other interested parties in order to consider and evaluate the impacts of this proposed activity. For accuracy and completeness of the administrative record, all data in support of or in opposition to the proposed work should be submitted in writing setting forth sufficient detail to furnish a clear understanding of the reasons for support or opposition. Any person may request, in writing, within the comment period specified in the notice, that a public hearing be held to consider the application. Requests for public hearings shall state, with particularity, the reasons for holding a public hearing. Any comments received will be considered by the Corps to determine whether to issue, modify, condition or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity. Written statements on these factors received in this office on or before the expiration date of this public notice will become a part of the record and will be considered in the final determination. A permit will be granted unless its issuance is found to be contrary to the public interest.

 

CLOSE OF COMMENT PERIOD:  All comments pertaining to this Public Notice must reach this office on or before the close of the comment period listed on page one of this Public Notice. If no comments are received by that date, it will be considered that there are no objections.  Comments and requests for additional information should be submitted to:

 

                 U.S. Army Corps of Engineers 502 Eighth Street

Huntington, West Virginia 25701-2070

ATTN: CELRH-RD-E, Public Notice No. LRH-2015-00393-NEW

 

Please note that submitted comments in response to this Public Notice become part of our administrative record and, as such, are available to the public under provisions of the Freedom of Information Act. Thank you for your interest in our nation's water resources. If you have any questions concerning the above, please contact Ms. Audrey Richter of the Energy Resource Branch at (304) 399-5610.                                                                       

                                                                                                         

 

Table 1.0 Proposed Temporary Discharge of Dredged and/or Fill Material into Waters of the United States associated with the Affinity Mine Midway Refuse Storage Facility

 

Aquatic Resource

Stream Flow Regime

Estimated amount of aquatic resource in review area in Linear Feet1

Proposed Stream Fill (linear feet)

Proposed Stream Fill (area)

Description of Regulated Activity

SC-T1

Intermittent

2,180

206

0.014

In-stream Drainage/Sediment Control System

1 Refer to Sheet 4 of 12                                          

 

Table 2.0 Proposed Permanent Discharges of Dredged and/or Fill Material into Waters of the United States associated with the Affinity Mine Midway Refuse Storage Facility

 

Aquatic Resource

Stream Flow Regime or Wetland Classification

Estimated amount of aquatic resource in review area in Linear Feet or Acre1

Proposed Stream Fill (linear feet)

Proposed Stream or Wetland Fill (area)

Description of Regulated Activity

SC-T1

Intermittent

2,180

1,928

0.165

Refuse Placement

SC-T1A

Ephemeral

406

406

0.018

Refuse Placement

SC-WL

Palustrine Scrub/Shrub

0.454

--

0.454

In-stream Drainage/Sediment Control System

1 Refer to Sheet 4 of 12                                          

 

Table 3.0 Proposed Stream Compensatory Mitigation (CM) associated with the Affinity Mine Midway Refuse Storage Facility

 

Mitigation Channel Name

Linear Feet

Predicted Flow Regime

Proposed Riparian Buffer- Left Bank

Proposed Riparian Buffer- Right Bank

Description of CM Type

UT-1 of Soak Creek

260

Intermittent

110

150

On-Site- Post Project Stream Reestablishment

UT-2 of Soak Creek

250

Intermittent

60

150

 

On-Site- Post-Project Stream Establishment

UT-4 of Soak Creek

450

Ephemeral

100

100

UT-5 of Soak Creek

1600

Ephemeral

100

100

UT-3 of Soak Creek

450

Ephemeral Connector

100

100

Off-Site-Post-Project Stream Establishment