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LRH 2015-530-GAU

Posted: 10/24/2018

Expiration date: 11/23/2018


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. 

APPLICANT:        JEP Mining LLC

                              100 Bill Baker Way

                              Beckley, West Virginia  25801

LOCATION:  The proposed project would be located along Shellcamp Ridge approximately 6.4 miles northeast of Quinwood in the Meadow Bluff District of Greenbrier County, West Virginia at latitude 38.0766 and longitude -80.5836.  The proposed surface mine would be constructed in unnamed tributaries of/and North Fork of Big Clear Creek, Smokehouse Branch of South Fork of Big Clear Creek, and unnamed tributaries of Big Clear Cree. Big Clear Creek flows into the Meadow River, a tributary of the Gauley River, a traditional navigable water of the U.S.  See Sheet 1 of 7 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 6,240 linear feet (1.96 acres) of waters of the U.S., as indicated on Sheet 2 of 7 and Table 1, in conjunction with the construction, operation and reclamation of  the Duo Surface Mine No 1.  Approximately 4,873 cubic yards of native soils would be permanently discharged into approximately 4,732 feet of 15 intermittent streams, 97 linear feet of one ephemeral stream, and 1.15 acres of one open water pond in conjunction with the recovery of coal reserves.  Approximately 47 cubic yards of clean earthen fill material would be discharged into 881 linear feet of intermittent stream in conjunction with the construction of an access road.  Approximately 57 cubic yards of clean earthen fill material and culvert pipes would be temporarily discharged into 530 linear feet of five streams associated with five access crossings.  The purpose of the project is to remove 778,348 tons of steam-grade bituminous coal reserves within the 422.7-acre SMCRA permit area.  The proposed surface mine operation would use a combination of area, contour, and highwall mining techniques to recover the coal reserves. Approximately 196.7 acres are designated for mineral removal.  The mining plan, inclusive of reclamation, would occur over a period of eight years. The post-mine land use is forestland.  The applicant has applied to the WVDEP for the required Surface Mining Control and Reclamation Act (SMCRA) permit (S-3009-15).  Plans of the proposal are attached to this notice (Sheets 1-7).  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 5,710 linear feet of intermittent and ephemeral streams and 1.15 acres of one open water pond are proposed to be permanently filled as a result of the mining activities.  Approximately 3,902 linear feet of on-site streams (NF-1D, NF-1D1, NF-14, NF-14A, NF-9, NF-9B, and SB4) proposed to be impacted by the discharge of dredged and/or fill material were constructed as sediment ditches as a result of pre-law mining activities.  No wetlands or other special aquatic sites would be affected by the discharge of dredged and/or fill material.  Approximately 353.20 surface acres of the 422.7 acres project area have been previously affected by past resource extraction (pre-law mined, timbering road fill, gas well sites, roads, and pipeline right of-way).  Off-site spoil storage at an adjacent surface mine (S-3032-86) was determined to be practicable and was incorporated into the applicant’s mine plan to minimize effects to waters of the U.S.  A complete copy of the applicant’s alternatives analysis can be reviewed by appointment at the above address.  No permit will be issued unless the alternatives analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.  The applicant has submitted the required alternative analysis for review.

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.  Approximately 56,640 linear feet of intermittent streams, 1,036 linear feet of ephemeral, and 1.648 acres of open water ponds exist at the site.  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 applicant’s proposed mine plan would avoid 89.2% of intermittent streams, 90.6% of ephemeral streams, and 30.2% of open water ponds.  The material proposed to be discharged into waters of the U.S. consists of 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 WV1028871 (issued by the WVDEP) to ensure water quality standards are met.  After mining and reclamation, the stream channels would be re-established and the area would be returned to a post-mining land use of forestland, with the exception of 0.06 acre to remain as an access road.

COMPENSATORY MITIGATION PLAN (CMP): The applicant has submitted a CMP to compensate for unavoidable discharges of fill material into waters of the U.S.  No compensatory mitigation is proposed for the loss of 3,902 linear feet of on-site streams (NF-1D, NF1D1, NF-14, NF-14A, NF-9, NF-9B, and SB4) due to the fact that they are sediment ditches that were constructed as a result of pre-law mining activities.  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, Version 2.1).  The SWVM compares baseline data with anticipated or actual post-mitigation data to calculate impact debits (1693.8) and mitigation credits (1693.8).  In order to compensate for the impact debits, the applicant proposes to re-establish 868 linear feet of four stream channels on-site (735.93 credits), establish 881 linear feet of stream channel on-site (735.93 credits), and purchase 957.88 credits from the West Virginia In-Lieu Fee Program. Additionally, all temporarily affected streams would be restored upon completion of the mining activities. A riparian buffer zone would be established along the established and re-established streams.  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.  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 (WV1028871) 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.  In a letter dated May 29, 2018 the West Virginia Division of Culture and History (WVDCH) indicated the proposed project would have no adverse effect on the Duo Historic District and no effect on archaeological historic properties.  The applicant has prepared the architectural survey and has provided it to the WVDCH for their review.  This Public Notice serves as coordination with the WVDCH, pursuant to Section 106 of the National Historic Preservation Act of 1966. 

ENDANGERED/THREATENED SPECIES:  This project was reviewed by the WVDEP pursuant to the Formal Section 7 Biological Opinion and Conference Report on the Surface Coal Mining and Reclamation Operations Under the Surface Mining Control and Reclamation Act of 1977 (96 BO) between the U.S. Office of Surface Mining and the U.S. Fish and Wildlife Service (USFWS).  In a letter dated November 12, 2015, the WVDEP indicated the proposed project is located within a known buffer for the threatened northern long-eared bat (Myotis septentrionalis) and the endangered Indiana bat (Myotis sodalis). As a result, the applicant prepared a Protection and Enhancement Plan (PEP) entitled “Indiana Bat Protection and Enhancement Plan for the Duo Surface Mine No. 1 SMCRA No. S-3009-15 – NPDES WV1028871”.  No caves, portals, or mine openings are located with the proposed project area.  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 applicant would conduct tree clearing during the winter season (October 15 to March 31) to minimize effects to the Indiana bat and northern long-eared bat.  In a letter dated September 14, 2017, the WVDEP approved the PEP.  Based  on the avoidance and minimization measures, the proposed project may affect, but is not likely to adversely affect either the Indiana bat or the northern long-eared bat.  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-2018-287-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, 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 Kimberly Courts-Brown of the Energy Resource Branch at (304) 399-6906.

Table 1. Proposed Discharge of Dredged and/or Fill Material into Waters of the United States

associated with the Duo Surface Mine No. 1

Mining Activity

Name of Stream

Permanent Discharge of Dredged and/or Fill Material

Temporary Discharge of Dredged and/or Fill Material

Intermittent Stream

Ephemeral Stream

Pond

Intermittent Stream

Ephemeral Stream

 

Length

Acreage

Length

Acreage

Acreage

Length

Acreage

Length

Acreage

Mine-Through

Open Water Pond

 

 

 

 

1.15

 

 

 

 

Mine-Through

BCC-20A1

367

0.0440

--

--

 

--

--

--

--

Mine-Through

BCC-20A1A

444

0.0189

--

--

 

--

--

--

--

Mine-Through

BCC-A1A1

123

0.0062

--

--

 

--

--

--

--

Mine-Through

BCC-20E

--

--

97

0.0025

 

--

--

--

--

Culvert

NF-12A

--

--

--

--

 

130

0.0100

--

--

Mine-Through

NF-14

458

0.0314

--

--

 

--

--

--

--

Mine-Through

NF-14A

210

0.0156

--

--

 

--

--

--

--

Mine-Through

NF-1D

465

0.047

--

--

 

--

--

--

--

Mine-Through

NF-1D1

129

0.035

--

--

 

--

--

--

--

Mine-Through

ND-1E

98

0.0006

--

--

 

--

--

--

--

Culvert

NF-2C

--

--

--

--

 

100

0.0115

--

--

Mine-Through

NF-3

178

0.0165

--

--

 

--

--

--

--

Culvert

NF-4

--

--

--

--

 

100

0.0122

--

--

Culvert

NF-4B1

--

--

--

--

 

100

0.0018

--

--

Culvert

NF-B8

--

--

--

--

 

100

0.0114

--

--

Mine-Through

NF-9

157

0.0136

--

--

 

--

--

--

--

Mine-Through

NF-9

1211

0.3952

--

--

 

--

--

--

--

Mine-Through

NF-9A

344

0.0401

--

--

 

--

--

--

--

Mine-Through

NF-9B

196

0.0170

--

--

 

--

--

--

--

Mine-Through

SB-4

352

0.0185

--

--

 

--

--

--

--

Access Road

SB-5A

881

0.0639

--

--

 

--

--

--

--

Total

5,613

0.76

97

0.002

1.15

530

0.047

--

--