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LRH 2012-418-GUY

Published Dec. 22, 2016
Expiration date: 1/20/2017

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 United States 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:            Kepler Processing, LLC

                                    P.O. Box 153

                                 Pineville, West Virginia 24874


LOCATION:  The proposed project is located at Latitude N 37° 33’ 49”, Longitude W 81° 34’ 50”, in tributaries of the Right Fork of Big Branch, approximately 1.7 miles southeast of the community of Wyoming, Wyoming County, West Virginia.  Big Branch flows into the Guyandotte River, a traditional navigable water of the U.S. See attached Exhibits 1-3 of 7 for a depiction of the proposed project location.


DESCRIPTION OF THE PROPOSED WORK: The applicant has requested a Department of the Army permit to discharge dredged and/or fill material into 7,625 linear feet (0.857 acre) of streams and 0.344 acre of emergent wetland, all waters of the U.S., as indicated on Exhibit 4 of 7, associated with the construction of a refuse disposal area, referred to as the Big Branch Refuse Disposal Area.  The proposed construction activities associated with the refuse disposal area include the construction of an in-stream drainage control and treatment pond (Pond No. 1), the installation of two (2) stream crossings associated with site access roads, the construction of a coarse refuse starter dam, coarse refuse embankment and underdrain system, and placement of coarse and fine refuse materials.  Construction of the refuse disposal area would result in the permanent discharge of dredged and/or fill material into 3,160 linear feet of perennial stream, 3,465 linear feet of intermittent stream, 1,000 linear feet of ephemeral stream, and 0.344 acre of emergent wetland.


This refuse disposal area has been approved by the WVDEP under Article 3 permit O-4006-03, Incidental Boundary Revision No. 11 (IBR 11), pursuant to the Surface Mining Control and Reclamation Act of 1977, and National Pollutant Discharge Elimination System (NPDES) permit WV1018973. The purpose of the proposed project is to construct a new coal refuse disposal area to allow for the continued operation of the applicant’s Kepler Preparation Plant and to provide for the continued recovery of metallurgical-grade coal as practicable from within the existing reserve base in Wyoming County and surrounding counties of West Virginia.   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 7,625 linear feet of streams and 0.344 acre of wetlands would be 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 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 dredge 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 analyzed six (6) alternatives to the proposed work. The applicant has indicated the proposed refuse disposal area would accommodate the required refuse disposal needs and represents the Least Environmentally Damaging Practicable Alternative (LEDPA). The chosen alternative would facilitate the continued operation of the Kepler Preparation Plant facility and the recovery of metallurgical coal reserves from the applicant’s existing and future production facilities. 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: To compensate for the loss of waters of the U.S. associated with the proposed project, the applicant proposes the following pre-project mitigation measures: off-site establishment of approximately 2,100 linear feet of intermittent stream and the planting/preservation of an associated riparian buffer within the Skin Fork of the Guyandotte River sub-watershed; and off-site establishment of approximately 0.76 acre of emergent wetland adjacent to the pre-project established intermittent stream and the planting/preservation of an upland riparian buffer (see Exhibit 5 of 7). To further compensate for the loss of waters of the U.S. associated with the proposed project, the applicant proposes the following post-project mitigation measures: on-site establishment of approximately 4,231 linear feet of streams (711 linear feet perennial, 3,020 linear feet intermittent, and 500 linear feet ephemeral) and the planting/preservation of an associated riparian buffer; and off-site establishment of approximately 1,770 linear feet of intermittent stream to connect to the on-site established intermittent stream.  Long-term site protection would be provided for each mitigation site. The applicant’s compensatory mitigation plan includes a 10 year monitoring, management and maintenance plan. The applicant used the Corps’ West Virginia Stream and Wetland Valuation Metric to determine the impact debits and compensatory mitigation credits.  A copy of the compensatory mitigation plan is available for public review in the Huntington District Office, by appointment.


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


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 January 30, 2002 (SHPO File Number FR#99-101-WM), the West Virginia State Historic Preservation Office (SHPO) stated “that no known historical, architectural, or archaeological sites listed on or eligible for inclusion on the National Registrar of Historic Places will be affected by the proposed project.” Submitted information and aerial photographs indicate that a majority of the proposed project area is situated on steep terrain, where it is unlikely that intact archaeological deposits will be encountered.  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.


ENDANGERED AND THREATENED SPECIES:  The proposed project lies within the natural range of the federally-listed endangered Indiana bat (Myotis sodalis), the threatened northern long-eared bat (Myotis septentrionalis), theendangered Virginia big eared bat (Corynorhinous townsendii virginianus), and the endangered Guyandotte River crayfish (Cambarus  veterans).  No openings, mine portals or caves are known to exist within the proposed project area.  Therefore, the proposed project would have no effect on the Virginia big-eared bat.  To minimize effects to the Indiana bat and the northern long-eared bat, the applicant has committed to conduct tree clearing operations between November 15 and March 31.  In addition, the proposed project area is not located within 150 feet of a known maternity roost or within ¼ mile of a known northern long-eared bat hibernaculum.  The proposed project may affect, but is not likely to adversely affect either the Indiana bat or the northern long-eared bat.  Based on the recent range-wide survey specific to the Guyandotte River crayfish, the presence of this species was not identified downstream of the project area nor along the Guyandotte River downstream of the project area.  We have determined the proposed project would have no effect on the Guyandotte River crayfish.  This Public Notice serves as coordination with the United States 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-2012-00418-GUY


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 the 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 Michelle Staley of the Energy Resource Branch at (304) 399-5610.