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LRH 2006-748-GUY

Published Dec. 19, 2017
Expiration date: 1/17/2018

TO WHOM IT MAY CONCERNThe 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 Section 401 Water Quality Certification (WQC) for the following application.


APPLICANT:            Tams Management, Inc.

                                    P.O. Box 2178

                                    Beaver, WV 25832

LOCATION:  As depicted on the attached Exhibits A and B, the proposed project would be located at Latitude 37° 28’ 43” and Longitude -81° 22’ 12”, in the Beartown Ridge portion of the Pinnacle Creek watershed, west of Covel and Herndon, in Wyoming County, West Virginia.  The project area encompasses tributaries of Pinnacle Creek and Beartown Fork, which are both tributaries of the Guyandotte River, a navigable water of the U.S.  


DESCRIPTION OF THE PROPOSED WORK:  The applicant proposes to discharge earthen fill material into a total of 7,978 linear feet (0.89 acre) of streams in conjunction with the construction, operation and reclamation of the Beartown Surface Mine.  Those activities that would involve the discharge of dredged and/or fill material into waters of the U.S. would include the construction of three in-stream sediment control ponds, the installation of a rock core drain associated with the construction of a valley fill the recovery of coal reserves underlying the upper portions of unnamed tributaries of Pinnacle Creek and Beartown Fork.  See Exhibits C and D for additional details.


The project would mine coal from four coal seams (and their splits)six phases, as discussed below, using the area mining method to produce 0.94 million tons of bituminous coal annually over a period of 12.5years.  


Project Phases 1 and 2 would take place in the north and west portions of the project area, and would involve construction of the proposed valley fill, associated sediment ponds, and the recovery of coal reserves underlying the upper portions of unnamed tributaries of Pinnacle Creek and Beartown Fork.  Phases 1 and 2 would include the discharge of dredged and/or fill material into 4,118 linear feet of stream impacts (3,502 impact debits).  Project Phases 3 through 5 would include the recovery of coal reserves underlying streambeds in the eastern portion of the project area resulting in the discharge of dredged and/or fill material into 3,860 linear feet of streams (3,052 impact debits).  In Project Phase 6, mining would continue on the southern area of the project, and reclamation would be completed, but no further discharge of fill material into waters of the U.S. would occur.


The proposed Beartown Surface Mine project is currently under review by the WVDEP under Surface Mine Application No. S-3002-16 pursuant to the Surface Mining Control and Reclamation Act and the National Pollutant Discharge Elimination System (NPDES) permit application WV1028898.  A copy of the applicant’s Section 404 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 7,978 linear feet (0.89 acre) of streams would be affected by the discharge of dredged and/or fill material.  No wetlands or other special aquatic sites would be affected by the discharge of dredged and/or fill material.  The applicant has submitted the required alternatives analysis and it is currently under review.  No Section 404 permit will be issued until this office has determined that practicable upland alternatives are not available to achieve the overall project purpose.

The applicant analyzed alternative mining methods for all four mineable seams (and their splits) against site-specific criteria necessary for practicability.  None of the seams met the criteria for the underground mining method.  Surface contour mining, as a stand-alone method, failed to meet the practicability criteria for mining any of the seams.  The applicant also considered a combination of Contour/Auger/Highwall mining method for each seam.  However, the applicant determined the contour method, as used in combination with the other methods, is impracticable for each seam.  Since highwall mining requires the construction of a contour bench, the applicant determined the Contour/Auger/Highwall method to be impracticable.  However, the applicant found it practicable to mine each coal seam by the Area Mining method and therefore adapted this method as the only practicable method for mining of the four coal seams.

Using the Area Mining method, the applicant considered various alternative mine plans.  The original mine plan was designed using the WVDEP’s Approximate Original Contour (AOC) guidance.  The original plan involved 1,666 acres, nine valley fills (and associated in-stream sediment control basins) and 40,300 linear feet of stream impacts.  Although considered practicable, the plan was revised to minimize stream impacts.  Plan 2 was developed by revising the mining boundary, revising valley fill sizes, eliminating six valley fills, optimizing overburden placement and over-stacking in selected valley fill areas. Plan 2 involved 1,178 acres, three valley fills, and 18,633 linear feet of stream impacts.  To further minimize environmental impacts, Plan 3 was developed by again revising the mining boundary, which resulted in reducing the excess overburden to the extent that only one disposal site would be necessary. 

The applicant evaluated alternative sites for placing excess overburden that cannot be backfilled on the mined area.  The applicant evaluated: (a) the proposed project permit area, (b) other permitted areas, and (c) non-permitted areas.  Practicability was evaluated based on criteria such as distance (within 1/2 mile of the mine site), volume capacity, safety and stability, efficiency, state mining regulations, accessibility and control of property, and other site conditions.  Available storage alternatives were then studied to determine which alternative site would involve the least impact to aquatic resources.  Based on these criteria and evaluations, the applicant selected the proposed location for material placement (Valley Fill No.1, as shown in Exhibit C) as the least environmentally damaging practicable alternative.  This is the proposed project, which would involve 1,273.6 acres, one valley fill and 7,978 linear feet of stream impacts (thus avoiding impacts to 32,322 linear feet of stream). 

AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the U.S., consideration must be given to avoiding impacts on the waters.  If waters of the U.S. cannot be avoided, then impacts to waters of the U.S. must be minimized.  Actions to minimize adverse effects to waters of the U.S. were incorporated during project development.  The underdrain rock to be discharged into the stream channels would consist of durable, non-toxic and non-acid producing rock.  Sediment ponds would be constructed as close to the toe of the valley fill as practicable.  Best management practices, including the use of temporary sediment controls and re-vegetating disturbed areas, would be used.  Other minimization actions would be prescribed in the project’s surface water control plan, material handling plan, and planting plan.  Surface drainage from the project site would be monitored and managed pursuant to the Section 402 NPDES permit to ensure water quality standards are met.   

COMPENSATORY MITIGATION PLAN: The applicant calculated the amount of compensatory mitigation using the Corps’ West Virginia Stream and Wetland Valuation Metric (SWVM, Version 2.1), which compares baseline stream data with anticipated or actual post-mitigation data to calculate impact debits and required or achieved mitigation credits.  The applicant calculates the proposed project would result in 6,554 impact debits.  To compensate for the loss of waters of the U.S. associated with the proposed project, the applicant proposes to purchase stream mitigation credits from a Corps’ approved stream mitigation bank.  The applicant would secure these mitigation credits in two phases corresponding with the project phases, as described below.

Before discharging dredged and/or fill material into waters of the U.S. as part of Project Phases 1 and 2, the applicant would implement Mitigation Phase 1 by purchasing 3,502 mitigation credits.  Before discharging dredged and/or fill material into waters of the U.S as part of Project Phases 3 through 5, the applicant would implement Mitigation Phase 2 by purchasing 3,052 mitigation credits. 

The applicant proposes to secure the required mitigation credits from the Ecosystem Partners Lower Dempsey Stream Mitigation Bank (LDSMB) for Mitigation Phase 1.  Prior to implementing Project Phases 3 through 5, the applicant would follow approval procedures to obtain available mitigation credits from a Corps-approved mitigation bank that has a primary service area covering the project area.

WATER QUALITY CERTIFICATION (WQC): A Section 401 WQC is required for the proposed activity, pursuant to Section 401 of the Clean Water Act. It is the applicant’s responsibility to obtain certification from the WVDEP.


HISTORIC AND CULTURAL RESOURCES:  Archaeological and architectural investigations were previously performed in consultation with the West Virginia State Historic Preservation Office (SHPO) prior to the Corps’ receipt of the Section 404 permit application.  By letter dated September 18, 2015 (to the WVDEP), the SHPO stated that most of the 1,273.6-acre project site previously underwent a Phase 1 archaeological survey performed in 2009 (on a then 1,580.7-acre project area).  As presented in the survey report, archaeological resources were identified, evaluated and determined to be ineligible for inclusion on the National Register of Historic Places (NRHP).  In 2009, the SHPO concurred with the survey report and its conclusions.  In the SHPO letter of September 18, 2015, the SHPO also stated that the small portion of the proposed project area that did not undergo a Phase 1 archaeological survey is situated on sloped terrain where it is unlikely that intact archaeological deposits are present.  The SHPO stated the opinion that there are no historic archaeological properties that will be affected by the proposed project, and there are no eligible architectural properties within the project boundary.  However, the SHPO advised that five (5) previously recorded architectural resources located within a mile of the proposed project site should be evaluated for eligibility.  Based on an evaluation of the architectural structures, two (2) no longer exist and the remaining three (3) are outside the 7/10 mile radius of the project boundary and are outside the viewshed of the project area year round.  Based on the information provided, the Corps has determined the undertaking would have no effect on resources eligible for or included in the NRHP.  This Public Notice serves as coordination with the SHPO, pursuant to Section 106 of the National Historic Preservation Act.  A copy of this Public Notice will be furnished to the SHPO for review.  Comments concerning archaeological sensitivity of the project area should be based on collected data.


ENDANGERED AND THREATENED SPECIES: Information from the USFWS indicates the proposed project lies within the natural range of the federally listed endangered Indiana bat (Myotis sodalis) and the threatened northern long-eared bat (Myotis septentrionalis).  Suitable habitat exists on the majority of the 1,274-acre project area.  Field investigations found no caves or underground portals in the project vicinity. The project also lies upstream of the natural range of the federally listed threatened Guyandotte River crayfish (Cambarus veteranus).  

The proposed project’s potential effects on federally protected species are under evaluation by the WVDEP pursuant to a programmatic 1996 biological opinion and conference report between the U.S. Fish & Wildlife Service (USFWS) and the U.S. Office of Surface Mining. 

The applicant has prepared an “Indiana Bat and Northern Long-Eared Bat Protection and Enhancement Plan (PEP) – Tams Management, Inc., Beartown Surface Mine…” (updated September 2017) and it has been provided to the WVDEP.  As stated in the PEP, timbering would be restricted to the period of October 15 to March 31 of the applicable year, when the bats should be in hibernation. Potential roosting trees and watering areas on lands adjacent to the project area would be identified and maintained.  The project’s post-mine land use would be forestland, and would include tree species with exfoliating bark suitable for bat roosting.  Additional watering areas would be created in the project area (during construction of sediment control structures). 

Concerning the Guyandotte River crayfish, the information provided states that no known potential habitat has been located in or adjacent to the proposed project.  However, additional information, including a habitat survey, must be obtained and evaluated concerning the proposed project’s potential to affect the federally listed Guyandotte River crayfish.

No Section 404 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 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 discharge of dredged and/or fill material into waters of the U.S. 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-2006-748


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 this Public Notice, please contact Richard Berkes of the Energy Resource Branch at (304) 399-6909.