US Army Corps of Engineers
Huntington District


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LRH 2017-1004-GAU

Published Sept. 12, 2018
Expiration date: 10/11/2018

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. 



                              100 Bill Baker Way

                              Beckley, West Virginia  25801


LOCATION:  The proposed project would be located 4.2 miles northeast of Rupert, Greenbrier County, West Virginia at latitude 38.008888 and longitude -80.636944.  The proposed surface mine would be constructed in unnamed tributaries of Big Clear Creek and Little Clear Creek, which flow into the Meadow River, a tributary of the Gauley River, a traditional navigable water of the U.S.  See Sheet 1 of 4 for a depiction of the proposed project location.

 DESCRIPTION OF THE PROPOSED WORK:  The applicant has requested a DA permit to discharge dredged and/or fill material into 2,967 linear feet (0.39 acre) of waters of the U.S., as indicated on Sheet 1 of 4 and Table 1, in conjunction with the construction, operation and reclamation of the Hickory Patch Surface Mine.  Approximately 225 cubic yards of durable rock fill would be permanently discharged into 1,541 linear feet (0.23 acre) of ephemeral stream channel in conjunction with the construction of Valley Fill No. 1.  Approximately 97 cubic yards of clean, earthen fill would be permanently discharged into 975 linear feet (0.11 acre) of three (3) ephemeral stream channels in conjunction with the recovery of coal reserves.  Approximately 31.4 cubic yards of clean, earthen fill would be permanently discharged into 451 linear feet (0.04 acre) of one (1) ephemeral stream in conjunction with mine-through activities and construction of the valley fill. The purpose of the project is to remove 2.1 million tons of steam-grade bituminous coal reserves within the 745.8-acre Surface Mining Control and Reclamation Act (SMCRA) permit area.  Approximately 460.8 acres are designated for mineral removal.  The mining plan, inclusive of reclamation, would occur over the next eight (8) years. The applicant has applied to the WVDEP for the required SMCRA permit (S- 3006-17).  Plans of the proposal are attached to this notice (Sheets 1- 4).  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. 

 ALTERNATIVE ANALYSIS: Approximately 29,735 linear feet of 10 ephemeral stream channels exist at the site.  Approximately 2,967 linear feet (0.39 acre) of ephemeral streams are proposed to be permanently filled as a result of the mining activities.  The applicant’s proposed mine plan would avoid 90.0% of ephemeral streams located at the site.  No wetlands or other special aquatic sites would be affected by the discharge of dredged and/or fill material.  Off-site upland spoil storage at two (2) adjacent surface mines (S-47-83 and S-31-72) and an adjacent upland plateau were determined to be practicable and were incorporated into the applicant’s mine plan to minimize effects to waters of the U.S. 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 mine plan and developmental sequence were 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 material proposed to be discharged into waters of the U.S. consists of durable rock and native soils.  Best management practices, including the use of temporary sediment control structures and contemporaneous reclamation and revegetation of disturbed areas, would be utilized.  Surface drainage would flow to on-bench sediment control structures.  The applicant’s material handling plan would assure that all fill material discharged into waters of the U.S. would be managed and monitored pursuant to the Section 402 National Pollutant Discharge Elimination System permit WV1029053 (issued by the WVDEP) to ensure water quality standards are met.  After mining and reclamation, 460.8 acres of the 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 (2474.6) and mitigation credits (2474.6). In order to compensate for the impact debits, the applicant proposes to either purchase stream mitigation credits (2474.6) from  an approved mitigation bank in the Gauley River watershed or in-lieu fee credits (2771.6) from the West Virginia In-Lieu Fee Program. The applicant’s CMP is currently under review, and is available for public review.  The proposed CMP is open to comment and is subject to change based on comments received.  After review of all the submitted information 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 (WV1029053) 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 Phase I Archaeological Determination Survey and a Phase I Architectural Resource Survey of the Hickory Patch Surface Mine to the West Virginia Division of Culture and History (WVDCH) for their review. The applicant submitted a letter dated April 6, 2018 from the WVDCH stating no  archaeological and/or architectural sites which are eligible or listed on the NRHP are located within the project boundaries.  Based on this information, the Corps has determined the proposed project would not have a potential to affect historic properties. 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 SPECIESThe project lies within the range of the Indiana bat (Myotis sodalis), the northern long-eared bat (Myotis septentrionalis), the Virginia spiraea (Spirea virginia), the small whorled pogonia (Isotria medeolides), the running buffalo clover (Trifolium stoloniferum), and the candy darter (Etheostoma osburni). This project was reviewed by the WVDEP pursuant to the 1996 Biological Opinion (BO) and Conferenced Report between the U.S. Office of Surface Mining and the U.S. Fish and Wildlife Service (USFWS).  In a letter dated May 17, 2018, the WVDEP provided a response to the applicant’s Protection and Enhancement Plan (PEP) entitled “Rangewide Indiana bat Protection and Enhancement Plan for the Hickory Patch Surface Mine SMA No. S-3006-17, dated November 2017”.  The PEP proposes avoidance, minimization, and short- and long-term habitat replacement measures consistent with the current West Virginia Range-wide Indiana Bat Protection and Enhancement Plan Guidelines for Surface Coal-Mining Operations. The WVDEP indicated that provided the project is implemented in accordance with the PEP, the project is not likely to adversely affect either the Indiana bat or the northern long-eared bat.  The WVDEP also indicated the project is not likely to adversely affect the threatened or endangered plant and fish species listed above.  This Public Notice serves as coordination with the USFWS 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:   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

ATTN: CELRH-RD-E Public Notice: LRH-2017-01004-GAU

502 Eighth Street

Huntington, West Virginia 25701-2070


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.





Table 1. Proposed Permanent Discharge of Dredged and/or Fill Material into Waters of the United States associated with the Hickory Patch Surface Mine


Ephemeral Stream

Proposed Activity

Stream Location

Linear feet



UNT Little Clear Creek LCC-1





Valley Fill No. 1

UNT Little Clear Creek LCC-1





Mine-Through & Valley Fill No. 1

UNT Little Clear Creek LLC-1




UNT Big Clear Creek BCC-2






UNT Big Clear Creek BBC-3