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LRH 2019-479-KAN

Published Aug. 18, 2020
Expiration date: 9/16/2020

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army (DA) Permit under the provisions of Section 404 of the Clean Water Act for the proposed discharge 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 would be located near the community of Glen White, in Raleigh County, West Virginia at latitude 37°44’09” and longitude -81°16’57”.  The proposed mine shaft pad would be constructed within a palustrine emergent (PEM) wetland situated directly adjacent to Shockley Branch of Miller Camp Branch of Marsh Fork, which flows indirectly into the Kanawha River,  a traditional navigable water of the U.S.  See Sheet 1 of 3 for a depiction of the proposed project location.

DESCRIPTION OF THE PROPOSED WORK:  The applicant has requested a DA permit to discharge 10,000 cubic yards of fill material into 2.26 acres of PEM wetland, as indicated on Sheet 2 of 3, in conjunction with the expansion of the existing Affinity Deep Mine – Glen White Shaft Site.  The proposal would consist of the construction of a 5.15 acre deep mine shaft pad to allow for the installation of  a deep mine shaft, a sediment control pond, a mine office and bathhouse, and a parking area. 

The deep mine shaft pad would be constructed at an elevation of 2,150 feet at mean sea level to ensure the deep mine shaft and the on-site structures and facilities are located above the 100-year floodplain of Shockley Branch.  The purpose of the project is to provide an additional entry point for employees and materials to access the Pocahontas 3 coal seam, provide a second egress into the deep mine as required by mining law, and provide an additional ventilation system for the deep mine.  The proposal would allow the removal of approximately 20.8 million tons of metallurgical coal reserves via deep mining methods at the site over an approximate period of 26 years. The applicant has applied to the WVDEP for the required Surface Mining Control and Reclamation Act permit (U-0152-82, Incidental Boundary Revision No. 12).  Plans of the proposal are attached to this notice (Sheets 1- 3).  A copy of the application, including all supplemental materials (alternative analysis, compensatory mitigation plan, environmental information documents, etc.), is available for review in the Huntington District Office, by appointment or via a Freedom of Information Request. 

ALTERNATIVE ANALYSIS: Approximately 2.26 acres of one (1) PEM wetland and 1,600 linear feet of one (1) perennial stream channel exists at the site.  No wetlands or other special aquatic sites would be affected by the discharge of dredged and/or fill material. The applicant has submitted an alternatives analysis to this office for our review. No permit will be issued unless the alternatives 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.  The applicant indicated the proposed project cannot be located in an area that would avoid all discharges of dredged and/or fill material into waters of the U.S.  The applicant stated the siting of the deep mine shaft pad was designed to avoid and minimize the discharge of dredged and/or fill material into waters of the U.S, to the maximum extent practicable, while meeting the stated project purpose.  The site was selected based on its proximity to existing infrastructure and the location of the existing underground mine panels.  The applicant designed the deep mine shaft pad to avoid the discharge of dredged and/or fill material into 1,600 linear feet of Shockley Branch. Best management practices, including the use of temporary sediment control structures and contemporaneous reclamation and re-vegetation of disturbed areas, would be utilized.    The applicant would assure that all fill material discharged into waters of the U.S. would be managed and monitored pursuant to the required Section 402 National Pollutant Discharge Elimination System permit (NPDES Permit No. WV 10001872 Mod. No. 16) to ensure water quality standards are met.  After mining and reclamation, the 5.15 acre site would be returned to a post-mining land use of forestland.

COMPENSATORY MITIGATION PLAN (CMP): The applicant has submitted a CMP to compensate for unavoidable discharges of dredged and/or fill material into waters of the U.S. To calculate an appropriate amount of mitigation to compensate for the loss of waters of the U.S. associated with the proposed project, the applicant used the Corps “West Virginia Stream and Wetland Valuation Metric” (SWVM).  The SWVM compares baseline data with anticipated or actual post-mitigation data to calculate impact debits (4.52) and mitigation credits (5.06). In order to compensate for the impact debits, the applicant proposes to purchase 5.06 wetland mitigation credits from the West Virginia In-Lieu Fee Program. The applicant’s CMP is currently under review by this office and the Corps will make a determination of appropriate mitigation, in the event a decision is made to issue a permit. 

WATER QUALITY CERTIFICATION: An individual Section 401 WQC is required for this project.  The applicant’s WQC application is currently under evaluation by 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.  The applicant has provided a cultural resources and architectural resources survey to the West Virginia Division of Culture and History (WVDCH), the State Historic Preservation Office for their review. In a letter dated July 1, 2020, the WVDCH stated the proposal would have no effect on historic archaeological or architectural resources.  This Public Notice serves as coordination with the WVDCH pursuant to Section 106 of the National Historic Preservation Act of 1966.  A copy of this Public Notice will be provided to the WVDCH for their comments.  No DA permit will be issued until the Corps has verified that all obligations under Section 106 of the National Historic Preservation Act have been fulfilled.      

ENDANGERED/THREATENED SPECIES:  The project lies within the range of the Indiana bat (Myotis sodalis), the northern long-eared bat (Myotis septentrionalis), the gray bat (Myotis grisescens) the Virginia big-eared bat (Corynorhinus townsendii virginianus), and the Guyandotte River crayfish (cambarus callainus). This project is currently under review by the WVDEP pursuant to the 1996 Biological Opinion and Conferenced Report between the U.S. Office of Surface Mining and the U.S. Fish and Wildlife Service (USFWS).  This Public Notice serves as coordination with the USFWS and the WVDEP 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). No DA permit will be issued until the Corps has verified that all obligations under Section 7 of the Endangered Species Act have been fulfilled. 

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 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 impacts, 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 benefits 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:   Comments should be submitted electronically to Kimberly Courts-Brown by email at Kimberly.d.Courts-Brown@usace.army.mil.  If you do not have internet access, comments may be submitted through the U.S. Postal Service (USPS) to the following address:

U. S. Army Corps of Engineers

ATTN: CELRH-RD-E Public Notice: LRH-2019-479-KAN

502 Eighth Street

Huntington, West Virginia 25701-2070

Copies should only be provided through the USPS when electronic transmission is not possible.  Precautionary internal mail handling procedures may be instituted to protect our workforce, which may result in longer than normal times to process and receive hard copy submissions.  To be considered in our evaluation, comments submitted through the USPS should have a postmark dated on, or prior to, the close of the comment period listed on page one (1) of this Public Notice.

Please note that names and addresses of those who submit comments in response to this Public Notice become part of our administrative record, and, as such, may be 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 this Public Notice, please contact Kimberly Courts-Brown of the Energy Resource Branch at (304) 399-6906.