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LRH 2017-01012-GUY

Posted: 11/20/2018

Expiration date: 12/19/2018


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 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:            Condor Holdings, LLC

                                    4189 Collins Highway

                                    Pikeville, Kentucky 41501

 

LOCATION:  As depicted on Sheets 1 of 6, the proposed project would be located within Cub Branch, unnamed tributaries of Cub Branch, Georges Creek of Dingess Run, and an unnamed tributary  of Abe Burgess Fork, approximately 3.0 miles south-southwest of the Community of Blair, in the Logan District of Logan County, West Virginia (37.82861, -81.83361). The proposed impact site is situated in the Rum Creek-Guyandotte River 12-digit Hydrological Unit Code (HUC) 050701010507 watershed, the Dingess Run-Guyandotte River 12-digit HUC 050701010508 watershed, and the Headwaters Spruce Fork 12-digit 050500090302 watershed. Cub Branch and Dingess Run are direct tributaries of the Guyandotte River, a navigable water of the U.S. The unnamed tributary of Abe Burgess Fork is an indirect tributary of the Coal River, a navigable water of the U.S.

 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a Department of the Army permit to discharge dredged and/or fill material into 7,730 linear feet (0.639 acre) of streams (5,057 linear feet of intermittent streams and 2,676 linear feet of ephemeral streams), as described in Tables 1 and 2, in association with the construction of the Cub Branch Surface Mine.  The proposed Cub Branch Surface Mine would consist of surface coal mining activities employing contour mining, highwall/auger mining, and area mining methods. These surface coal mining methods would be employed to recover (primarily) steam-grade bituminous coal from the Kittanning, 5-Block, Stockton, and Coalburg coal seam horizons.  The specific elements of the proposed project that would result in the discharge of dredged and/or fill material into waters of the U.S. include the: installation and operation of in-stream sediment control structures; construction of a durable rock underdrain system in conjunction with construction of a single valley fill structure (Valley Fill No. 1); mine-through activities; and installation of a temporary stream crossing along an access road.  The Cub Branch Surface mine would encompass a total of approximately 565 acres of which approximately 477 acres would be designed for the mineral removal area. The remaining area, approximately 88 acres, would be utilized for construction of a valley fill, access roads, and ancillary facilities. Refer to Sheets 2-5 of 6 for details.  

 

The proposed surface coal mining activities would result in the recovery of approximately 10 million (MM) tons of bituminous coal reserves over a projected life of approximately 7.5 years. Run-of-mine coal would be transported via trucks to nearby processing and trans-loading facilities.  Subsequent to processing and blending, coal would be shipped via commercial rail carrier primarily for delivery to electric utility customers.

 

The applicant proposes to conduct the surface coal mining operations under the WVDEP Article 3 Surface Mining Control and Reclamation Act (SMCRA) permit S-5015-09, and the Section 402 National Pollutant Discharge Elimination System (NPDES) permit WV1024868. The purpose of the proposed project is to extract steam-grade and metallurgical bituminous coal from within the Logan County, West Virginia leasehold(s) to be sold into the domestic utility market for the production of electricity and steel making. Portions of the mine’s production could at times be sold into the domestic and international metallurgical markets for use in steel making. A copy of the permit 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 1,743 linear feet (0.121 acre) of streams would be temporarily filled and a total of 5,987 linear feet (0.518 acre) of streams would be permanently filled by the proposed project. 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.  The applicant considered the various alternatives as follows: not mining the proposed project area, relocating the project, underground mining methods (deep mining, auger mining, highwall mining), surface mining methods (contour mining, mountain top removal, area mining, dragline methods), excess spoil disposal methods (placing all overburden back on top of the mining bench, placing excess spoil in various valley fill sites, hauling all excess spoil overburden material off-site), reduction in project scope, and sediment control placement methods. The applicant has selected a combination of area mining, contour mining, and highwall mining with off-site excess spoil disposal as the preferred alternative in order to recover as much of the coal reserves as practicable within the proposed project area. 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. The applicant reduced the proposed project footprint from more than 3,100 acres to 565 acres thereby reducing the proposed discharge of dredged and/or fill material into streams from 31,200 linear feet to approximately 7,730 linear feet (75 percent reduction). In addition, activities within and impacts to high quality waters, perennial streams, wetlands and other special aquatic sites have been avoided.

As stated above, the applicant has selected a combination of area mining, contour mining, and highwall mining as the preferred alternative in order to recover as much of the coal reserves as practicable within the proposed project area. One (1) valley fill (Valley Fill No. 1), and an associated in-stream drainage pond would be required. Mine-through activities would be limited to portions of two (2) streams segments. On-bench sediment control would consist of perimeter sediment ditches and an on-bench pond, all constructed within the proposed mineral removal boundary. No other in-stream drainage or sediment control structures are proposed.

In addition, the project has been designed such that as much overburden materials as practicable would be returned to the mined area (i.e., the mine bench and backfill areas) in order to achieve Approximate Original Contour (AOC). Approximately 10 MM cubic yards of excess overburden materials would be hauled to adjacent and previously reclaimed areas to the maximum extent practicable. The remaining excess spoil material generated from surface mining activity would be placed into Valley Fill No. 1, which would be constructed along Cub Branch and unnamed tributaries of Cub Branch. All mined areas would be contemporaneously reclaimed and all project areas would be returned to the AOC. The pre-mining land use of forestland would be reestablished across all permitted areas.

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 during initial road building and initial construction of the proposed sediment control structures(s).  In-stream construction activities would occur during low flow periods to the greatest extent practicable. No in-stream work would be conducted during the aquatic spawning season of April through June without approval from the WVDEP. The applicant would utilize best management practices (BMPs) and guidance from the “Technical Handbook of Standards and Specifications for Mining Operations in West Virginia,” during all aspects of the proposed project as well as compliance with all terms and conditions of the Section 401 WQC and the NPDES permit. For additional construction techniques and BMPs to protect water quality and prevent significant degradation of the aquatic ecosystem, the applicant would adhere to the WVDEP’s “Permitting Guidance for Surface Coal Mining Operation to Protect West Virginia’s Narrative Water Quality Standards, 47 C.S.R. 2 §§ 3.2.e and 3.2.i.”

 

COMPENSATORY MITIGATION PLAN:  The applicant will use the Corps’ West Virginia Stream and Wetland Valuation Metric (SWVM) to determine the impact debits and compensatory mitigation credits.  To compensate for the losses of waters of the U.S. associated with the proposed project, the applicant proposes on-site re-establishment and establishment of approximately 1,743 linear feet of streams (1,187 linear feet of intermittent stream and 556 linear feet of ephemeral stream). Refer to Table 3 and Sheet 5 of 6 for additional information. In addition, the applicant proposes to purchase stream mitigation credits from a federally approved stream mitigation bank. A detailed compensatory mitigation plan, including the SWVM data forms, is being prepared on behalf of the applicant by Doss Engineering, Inc. and will be submitted to the Corps for review and approval.

 

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

 

HISTORIC AND CULTURAL RESOURCES:  As part of the applicant’s permitting process for the Cub Branch Surface Mine WVDEP Article 3 SMCRA Permit (S-5015-09), the applicant consulted the West Virginia Division of Culture and History (WVDCH), the State Historic Preservation Office (SHPO), to determine if any archaeological resources or architectural resources were present within the proposed project area. 

 

In a letter dated June 17, 2010 (WVDCH, FR# 10-38-LG), the SHPO stated that the Cub Branch Surface Mine operation (relative to the project’s originally proposed boundary) was adjacent to the Blair Mountain Battlefield (hereinafter the “Battlefield”) which was deemed eligible for listing on the National Register of Historic Places (NRHP), upon its delisting on December 30, 2009.  Within this letter, the SHPO requested a viewshed analysis from the Battlefield, photographs, and mapping of any buildings or structures in viewshed of the project area, and a Phase 1 archaeological survey to be conducted.  Through a later letter dated June 15, 2012 (WVDCH, FR#: 10-38-LG-4), it was determined that the originally proposed Cub Branch Surface Mine project activities would alter the viewshed from the Battlefield as the landscape surrounding this resource would be permanently changed.  As such, the Cub Branch Surface Mine project boundary was revised so as to not be within the viewshed of the Battlefield.

 

In a letter dated June 27, 2017 (WVDCH, FR# 10-38-LG-8), the SHPO stated “The revised project boundaries also include the addition of two areas not included in the original project boundaries.  A search of our records indicates that these areas have been previously archaeologically surveyed under FR# 06-994-LG-2 and 10-38-LG-3.  This office concurred that no additional archaeologically survey work was required for either of the previously completed surveys.  Therefore, in our opinion, the proposed project will have no effect on archaeologically historic properties.  No further consultation is necessary regarding archaeological resources.”

 

In a letter dated August 14, 2017 (WVDCH, FR# 10-38-LG-9), the SHPO indicated that the reconfigured project area has minimized the potential for visual impacts to the Battlefield in that the project has been moved further away and the topography is such that the character of the setting would not drastically change. The SHPO stated it is their opinion that the reconfigured project area would have no adverse effect to the historic characteristics of the Battlefield.

 

In a final response letter dated November 28, 2017 (WVDCH, FR# 10-38-LG-10), the SHPO reported that various other structures under review (specifically, the Paragon Mine Pump Station, an associated outbuilding to the pump station, and nearby abandoned and sealed mine portals) are not eligible for the NRHP. The SHPO stated that no further consultation is necessary regarding architectural resources.

 

Based on the above information, the Corps has determined the undertaking would have no adverse 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.

 

THREATENED AND ENDANGERED SPECIES:  The proposed project lies within the range of the Indiana bat (Myotis sodalis), the gray bat (Myotis grisescens), the northern long-eared bat (Myotis septentrionalis), and the Guyandotte River crayfish (Cambarus veteranus), Federally-listed threatened and endangered species.  Forested habitat located at the proposed Cub Branch Surface Mine project area and surrounding vicinity contain potential summer habitat for the Indiana bat and the northern long-eared bat.  Prior to listing of the northern long-eared bat, the applicant chose to assume the presence of the Indiana bat and prepared an “Indiana Bat Protection and Enhancement Plan for the Cub Branch Mine” (PEP) per the “Range-wide Indiana Bat Protection and Enhancement Plan Guidelines for Surface Coal-Mining Operations” (Guidelines).  This PEP was accepted and the WVDEP stated within an August 26, 2015 closure letter that, “Based on the information that has been provided the applicant has decided to use Applicant Alternative 3 from the “Guidelines” and “Assume Presence of Indiana Bats.” Included within this PEP are the listed non-discretionary Reasonable and Prudent Measures (RPM’s) to avoid and minimize impacts in relation to possible Indiana bat presence associated with this mining area.  It has been concluded that this project may affect – is not likely to adversely affect the Indiana bat.  The effect of the project is not likely to jeopardize the continued existence of the Indiana bat as a species and the Post Mining Land Use (PMLU) for the project area has been designated as forestland.”  The August 26, 2015 letter further states, “this PEP will also cover the recently listed northern long-eared bat (Myotis septentrionalis).” In addition, the applicant conducted underground openings surveys of the project area and no portals, caves, or other potential winter hibernaculum were identified.  Through electronic correspondence dated November 15, 2018, the WVDEP stated the project would have no effect on the gray bat. In accordance with the “Guide to Consideration of Potential Mining-related Impacts on the Guyandotte River and Big Sandy Crayfishes,” the WVDEP and the Department of the Interior determined that the proposed project is within 500 meters of a stream with the potential to harbor the endangered Guyandotte crayfish. Rum Creek and the Guyandotte River may provide potential habitat for the crayfish. Therefore, the applicant commissioned and received approval from the U.S. Fish and Wildlife Service (USFWS) to conduct crayfish surveys along Rum Creek. In a letter dated July 2, 2018, the USFWS (FWS File # 2018-I-0139) indicated that only two (2) species of crayfish were observed during the survey and no Guyandotte River crayfish were observed at any of the 10 sample sites. The USFWS further stated that based on the results of the survey, no Guyandotte River crayfish are expected to be affected by the project and no biological assessment or further consultation under Section 7 of the Endangered Species Act (ESA) is required.

 

Based on this information, the proposed project is not likely to adversely affect the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of habitat of such species which has been determined to be critical. 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 ESA of 1972 (as amended).

 

PUBLIC INTEREST REVIEW AND CUMULATIVE EFFECTS:  This permit 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-2017-01012-GUY

 

Please note that submitted 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 the above, please contact Ms. Audrey Richter of the Energy Resource Branch at (716) 879-4469.                                                                                                                                                                                                         

                                                                                           


 

Table 1.0 Proposed Temporary Discharge of Dredged and/or Fill Material into Waters of the United States associated with the Cub Branch Surface Mine

 

Stream Name

Perennial

Intermittent

Ephemeral

Total

Total

Regulated Activity

(lf)1

(ac)

(lf)

(ac)

(lf)

(ac)

(lf)

(ac)

CB Mainstem (Cub Branch)

 

-

43

0.003

-

-

43

0.003

Temp. Stream Crossing

CB Mainstem (Cub Branch)

 

-

454

0.045

-

-

454

0.045

Pond No. 1

CB-1 (Cub Branch above CB-4)

-

-

230

0.029

-

-

230

0.029

Pond No. 1

CB-4 (UT of Cub Branch)

-

-

136

0.012

-

-

136

0.012

Pond No. 1

GC Mainstem (Georges Creek)

-

-

324

0.023

556

0.009

880

0.032

Pond No. 2 and Mine-Through

Total

-

-

1,187

0.112

556

0.009

1,743

0.121

-

1Linear feet (lf).

 

Table 2.0 Proposed Permanent Discharge of Dredged and/or Fill Material into Waters of the United States associated with the Cub Branch Surface Mine

 

 

 

 

 

Stream Name

Perennial

Intermittent

Ephemeral

Total

Total

Regulated Activity

(ft)

(ac)

(ft)

(ac)

(ft)

(ac)

(ft)

(ac)

CB-1 (Cub Branch above CB-4)

-

-

3,870

0.405

620

0.021

4,490

0.426

Valley Fill No. 1

CB-2 (UT of Cub Branch)

-

-

-

-

190

0.004

190

0.004

Valley Fill No. 1

CB-3 (UT of Cub Branch)

-

-

-

-

1,263

0.088

1,263

0.088

Valley Fill No. 1

ABUT-1B (UT of Abe Burgess)

-

-

-

-

44

0.000

44

0.000

Mine-Through

Total

-

-

3,870

0.405

2,117

0.113

5,987

0.518

-

                      

Table 3.0 Proposed Stream Compensatory Mitigation (CM) associated with the Cub Branch Surface Mine

 

 

CM Stream Channel Name

Linear Feet

Predicted Flow Regime

Riparian Buffer Zone Width (Ft)

CM Type

Post-Project CM, On-Site

Cub Branch (Mainstem)

497

Intermittent

 

 

 

100 Feet Each Side of Mitigation Channel

 

 

 

 

Post-Project On-Site Stream Reestablishment

CB-1 (Cub Branch above CB-4)

230

Intermittent

CB-4 (UT of Cub Branch)

136

Intermittent

GC-1 (Georges Creek)

324

Intermittent

GC-1 (Georges Creek)

556

Ephemeral

Total Proposed Stream Mitigation

1,743