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LRH 2018-0738-OHR

Published March 27, 2019
Expiration date: 4/11/2019

TO WHOM IT MAY CONCERN:  Public Notice No. LRH-2018-00738-OHR, issued by the United States Army Corps of Engineers (Corps) on 21 September 2018, advertised the United Mineral Company, LLC’s proposal to discharge dredged and/or fill material into 55,339 linear feet of streams, 420.18 acres of wetlands, and 104.5 acres of open waters in association with the construction, operation and reclamation of the Seven Hills Mine.  Subsequently, on 19 October 2018, the comment period was extended until 5 November 2018.  The Corps, Huntington District has received a compensatory mitigation plan from United Minerals Company, LLC to offset the discharge of dredged and/or fill material into waters of the United States as a result of the proposed Seven Hills Mine.  The purpose of this Public Notice is to inform you of changes to the proposed project and to solicit your comments and information on the proposed compensatory mitigation plan to better enable us to make a reasonable decision on factors affecting the public interest.  We hope you will participate in this process.


APPLICANT:       United Minerals Company, LLC

                             566 Dickeyville Road

                             Lynnville, Indiana 47619


LOCATION:  As depicted on Sheet 1 of 15, the proposed Seven Hills Mine project would be located along Pigeon Creek, and within unnamed tributaries of Pigeon Creek, wetlands and open waters, approximately 2.5 miles southeast of Elberfeld, in Warrick County, Indiana (N38.1212, W87.3995).  As depicted on Sheet 2 of 15, the on-site compensatory mitigation areas would be located on the post-mine site, within the avoidance area, and the east side of Pigeon Creek in the Seven Hills Floodway Enhancement compensatory mitigation site, in Warrick County, Indiana.  As depicted on Sheet 3 of 15, the off-site compensatory mitigation sites are located at various locations in Warrick County, Indiana.  Each individual off-site compensatory mitigation area is located on the referenced sheets below.


Mitigation Area

Latitude, Longitude

Sheet #

Wild Boar

N38.16515°, W87.27335°

4 of 15

Little Pigeon Creek Site 1

N38.12053°, W87.05374°

5 of 15

Little Pigeon Creek Site 2

N38.12556°, W87.02533°

6 of 15

Pokeberry Site 1

N38.11840°, W87.07191°

7 of 15

Pokeberry Site 2


8 of 15

Pokeberry Site 3

N38.11819°, W87.07453°

9 of 15

Pigeon Creek Site 1

N38.22317°, W87.45727°

10 of 15

Pigeon Creek Site 2

N38.21592°, W87.46173°

11 of 15

Bluegrass Site 1

N38.08176°, W87.46579°

12 of 15

Bluegrass Site 2

N38.06396°, W87.45900°

13 of 15

Ellison West

N38.12375°, W87.22581°

14 of 15

Indiana bat Roosting Site


15 of 15


DESCRIPTION OF THE MODIFIED PROJECT:  In order to further reduce impacts to waters of the United States,  Describe avoidance and minimization measures that have been proposed.  If the nature and extent of the regulated activity was modified/reduced after the public notice, describe those changes here.the proposed Seven Hills Mine project has been redesigned to discharge dredged and/or fill material into approximately  38,923 linear feet (16,187 linear feet of ephemeral streams and 22,736 linear feet of intermittent streams) of streams, (311.72 acres of palustrine forested [PFO], 34.96 acres of palustrine scrub-shrub [PSS], 27.32 acres of palustrine emergent [PEM], and 0.37 acre of palustrine unconsolidated bottom [PUB]), and 104.5 acres of open waters.  Reference Tables 1 and 2 for additional information related to the modified project.  The project area encompasses 1,629.4 acres.  Of the 1,629.4-acre project area, a minimum of 410.4 acres would be designated as an avoidance area, resulting in disturbance to approximately 1,219 acres. The proposed surface mine operation would use area mining techniques to recover 9.5 million tons of steam-grade bituminous coal reserves within the Surface Mining Control and Reclamation Act (SMCRA) permit area.  The mining plan, inclusive of reclamation, would occur over a period of six (6) to seven (7) years.  Construction, operation and reclamation of the proposed surface mine are discussed in the Surface Mine Application on file at the Indiana Department of Natural Resources (IDNR)-Division of Reclamation (SMCRA No. S-00357, Incidental Boundary Revision No. 1).  A copy of the Department of the Army (DA) permit application, including all supplemental materials (alternatives analysis, compensatory mitigation plan, environmental information documents, etc.), is available for review in the Huntington District Office, by appointment, or may be obtained by submitting a Freedom of Information Act Request. 


ALTERNATIVES ANALYIS:  The applicant has provided an updated alternative analysis, which includes a discussion of the direct, secondary and cumulative impacts to aquatic resources resulting from each alternative considered.  The applicant evaluated different mine layouts/configurations and mining sequences for the proposed project area that would have different consequences on waters of the United States.  Specific alternatives included: four (4) mining scenarios with varying reductions in project scope to avoid, reduce, and minimize impacts upon the aquatic environment with the utilization of either new or existing processing facilities; not mining the project area; relocating the project to an off-site location; and mining by different methods.  These alternatives were considered relative to their technological and economic feasibility as well as their apparent likelihood to reduce environmental impacts as compared to the applicant’s preferred alternative (as described above under “DESCRIPTION OF THE MODIFIED PROJECT”).  Room and pillar, pod, longwall, auger and highwall mining were not considered to be practicable alternatives and were eliminated from further consideration.  Relocating the mine to an off-site location is not a viable or practicable alternative and has been eliminated from further consideration.

AVOIDANCE AND MINIMIZATION:  There are approximately 694.6 acres of wetlands and 61,734 linear feet of streams within the proposed project area.  The proposed mine plan has been revised multiple times by the applicant to reduce and minimize impacts to waters of the United States.  The applicant has eliminated from its mining plan on-site slurry/refuse disposal as well as a haulroad across Pigeon Creek, reduced the mineable reserve from extraction and the area needed for site access and temporary coal storage, and moved the location of the levee system approximately 300 feet to the west.  With the applicant’s most recent 2019 revisions, the proposed project has been designed to completely avoid the discharge of dredged and/or fill material into 320.63 acres of wetlands (46.2%) and 22,811 linear feet of streams (37%) within the project area.  As indicated below under “COMPENSATORY MITIGATION” the majority of the avoided waters would be preserved via a conservation easement as part of the applicant’s compensatory mitigation plan.  Measures that would be taken to minimize effects to surface water quality and the aquatic environment include, but are not limited to:


  • Maintaining a buffer area of a minimum of 400 feet between Pigeon Creek and the proposed disturbance area, with the buffer widening out to 500 feet in some locations;
  • Construction of adequately designed and sized sediment control structures, including sediment basins, overland flow diversions ditches, temporary terracing, straw dikes and rip rap filters;
  • Treatment, including neutralization where necessary, of effluent leaving the sediment basins and entering the normal surface water flow system;
  • Implementing a continued surface and ground water monitoring program for both quality and quantity of waters leaving the project area and entering the flow systems;
  • Toxic, acidic or combustible materials encountered during the mining operation would be covered with non-toxic, non-combustible earthen material; 
  • Excess overburden would be stored in a previously-mined disposal area on the southern portion of the SMCRA permit area;
  • Surface water collecting in open pits would be pumped through the sediment basins;
  • All surface water runoff would be routed through the approved sediment control structures prior to exiting the SMCRA permit area;
  • Using a truck shovel fleet of equipment to mine and reclaim the project area.  This method allows the exact placement of overburden material to achieve the post mining land uses and elevations needed to restore floodplain elevations.  This method would also allow the loose dumping of soil on graded spoil areas reducing compaction.  Reduced compaction is important for vegetation and tree growth success; and
  • Implementing an adaptive management plan to address potential secondary effects as a result of the mining excavation activities.


    COMPENSATORY MITIGATION:  As indicated above, the applicant has avoided and minimized impacts to waters of the United States.  The applicant has submitted a compensatory mitigation plan that includes the 12 required components (objectives, baseline information, site selection, site protection, determination of credits, mitigation work plan, performance standards, monitoring requirements, maintenance plan, long-term management, adaptive management, and financial assurances) outlined in the 33 CFR 332.  The proposed compensatory mitigation plan incorporates a watershed approach. The overall goal of compensatory mitigation measures is to offset and restore stream and wetland functional values lost or impacted as a result of project impacts and to compensate for temporal and other unavoidable losses associated with project action.  Table 3 provides a comparison between the impacts and the proposed compensatory mitigation.  To compensate for the discharge of dredged and/or fill material into waters of the United States, the applicant proposes to perform on-site and off-site compensatory mitigation as described below. Reference Table 4 for a listing of each individual stream mitigation site.  Reference Table 5 for a listing of each individual wetland mitigation site. 




    Concurrent with the proposed mining activities, the applicant proposes to:


  • establish 281.73 acres of PFO wetlands, 55.4 acres of PSS wetlands, 37.23 acres of PEM wetlands, and 8,294 linear feet of ephemeral streams on the post-mine site;
  • establish 31 acres of PFO wetlands within the floodway enhancement area;
  • re-establish 22,737 linear feet of intermittent streams, 7,892 linear feet of ephemeral streams, 96.21 acres of open water and 141.60 acres of riparian habitat on the post-mine site;
  • restore 1,300 linear feet of two (2) intermittent streams within the avoidance area; and
  • preserve via a conservation easement 120.48 acres of PFO wetlands, 24.99 acres of palustrine dead forested wetlands, 33.31 acres of PSS wetlands, 6.46 acres of PEM wetlands, 5.48 acres of PUB wetlands, 432 linear feet of ephemeral streams, 4,532 linear feet of intermittent streams, and 54 acres of upland buffer within the avoidance area. 


    The general topography and geomorphology of the reclaimed watersheds would generally mimic the pre-mining conditions.  On-site wetland establishment work would coincide with the proposed post-project, on-site stream channel establishment and re-establishment efforts.  Overall, each of the wetland sites would be configured to be flat and mimic the existing floodplain.  Minimum riparian buffer widths would be placed out a distance of 50 feet on each side for ephemeral stream compensatory mitigation and 100 feet on each side for intermittent and perennial stream compensatory mitigation.  Riparian plantings would consist of native plants, trees, and shrubs rather than species or subspecies of exotic origin and would be planted in a manner sufficient to ultimately provide adequate canopy/cover or shading of the re-established/established stream channels.  Wide floodplains would be incorporated adjacent to the stream compensatory mitigation sites to the maximum extent practicable.  Regarding wetland establishment, plantings would consist of native and non-invasive obligate and facultative wetland species, taking advantage of nearby seed banks and natural recruitment sources for more resilient and diverse vegetative establishment.  To the extent feasible and practicable, enhancement features for wildlife and aquatic habitat, in particular the copperbelly water snake, would also be installed and include features such as woody debris, logs, stumps, brush piles, nesting boxes, roosting structures, and/or vegetated islands.  In addition, the applicant proposes to plant exfoliating bark tree species as well as provide watering areas in the compensatory mitigation areas for the Indiana bat and the northern long-eared bat. 




    Twelve (12) off-site compensatory mitigation areas have been identified to address the remaining mitigation debit. Six (6) of these sites (Wild Boar Mine Wetland Establishment, Pigeon Site 1, Pigeon Site 2, Bluegrass Site 1, Bluegrass Site 2, and Indiana Bat Roosting Preservation) are located within the eight (8)-digit Hydrological Unit Code (HUC) Highland-Pigeon watershed (HUC 8 – 05140202) which is the same watershed of the proposed impacts and six (6) sites (Little Pigeon Site 1, Little Pigeon Site 2, Pokeberry Site 1, Pokeberry Site 2, Pokeberry Site 3, and Ellison West) are located within the adjacent eight (8)-digit HUC Little Pigeon Creek watershed (HUC 8 – 05140201).  Consideration was given to how each site would generate credits as preferred by the 2008 Mitigation Rule.  Water quality benefits to the watershed were considered.  The hydrologic connections between each site and the streams to which they report were considered.  Final consideration was given to how ecologically conducive each site is for restoration.


    The applicant proposes to perform the compensatory mitigation measures at the following off-site locations:


  • establish 49.5 acres of PSS wetlands and 50.5 acres of PFO wetlands within the floodplain area of Big Creek within the Wild Boar site;
  • restore 2,265 linear feet of intermittent stream, 30.8 acres of PFO wetlands and 3.4 acres of upland forested buffer and to preserve 0.6 acre of upland forested buffer within the 38 acre Little Pigeon Site 1;
  • restore 127.5 acres of PFO wetlands and to preserve 0.5 acre of existing PFO wetland within the 141 acre Little Pigeon Site 2;
  • restore 1,100 linear feet of intermittent stream, 62.8 acres of PFO wetlands and 11 acres of upland forested buffer and to preserve 3.7 acres of existing PFO wetlands within the 84 acre Pokeberry Site 1;
  • restore 40.6 acres of PFO wetlands and to preserve 0.2 acre of existing PFO wetland within the 44.8 acre Pokeberry Site 2;
  • restore 49.8 acres of PFO wetlands and 3.5 acres of upland forested buffer and to preserve 2.9 acres of existing PFO wetlands within the 63 acre Pokeberry Site 3;
  • restore 37.5 acres of PFO wetlands and to preserve 0.4 acre of existing PFO wetland and 1.6 acres of upland forested buffer within the 43 acre Pigeon Creek Site 1;
  • restore 35.6 acres of PFO wetlands and 1.6 acres of upland forested buffer, rehabilitate 5.9 acres of PSS to PFO wetlands, and preserve 9.7 acres of PFO wetlands and two (2) acres of upland forested buffer within the 67 acre Pigeon Creek Site 2;
  • restore 108.4 acres of PFO wetlands and 1.4 acres of upland forested buffer within the 146 acre Bluegrass Site 1;
  • restore 47.7 acres of PFO wetlands and 1.8 acres of upland forested buffer within the 60 acre Bluegrass Site 2;
  • restore 1,800 linear feet of perennial stream, 32.2 acres of PFO wetlands and 6.9 acres of upland forested buffer, rehabilitate two (2) acres of PSS to PFO wetlands, and to preserve 1.4 acres of existing PFO wetlands and 1.2 acres of existing upland forested buffer within the 52 acre Ellison West site; and
  • preserve 16.0 acres of PFO wetlands, 19.1 acres of emergent wetlands, 2.8 acres of PUB and 2.1 acres of upland forest within the 40 acre Indiana Bat Roosting site.


    The construction for off-site compensatory mitigation areas would be performed prior to (or concurrent with) the initiation of proposed discharge of dredged and/or fill material into waters of the United States and would be completed within the two (2) growing seasons.  Within the majority of the wetland restoration areas, existing tile inlets and outlets would be removed, and the main runs would be perforated on intervals sufficient to prevent groundwater flow paths from higher elevations to lower elevations within the project area.  The trenches would then be backfilled and graded to original contour.  Additional restoration activities would include, but would not be limited to, removing existing berms and/or levees, excavating areas, plugging drain pipes, grading ditches, establishing meandering channels, removing W-ditches, lateral ditches, and Water and Sediment Control Basins.  Woody stems would be planted with a mechanical setter.  As the trees and shrubs are unpacked, they would be mixed to diversity specs, placed in buckets of treated water, and these buckets would be provided directly to the mechanical planter.  IRIS tubes or hydroperiod data loggers would be installed within restored and established wetlands to support and demonstrate achievement of appropriate hydrologic conditions.


    Each compensatory mitigation area would be clearly marked with permanent signage and access roads would be closed to restrict unauthorized entry.  Livestock grazing, mowing, and similar activities would not be allowed.  The use of chicken wire, hardware cloth, repellants, or other materials would be employed as appropriate to minimize and prevent beaver damage, as may be necessary.  Other appropriate and reasonable measures would be taken to prevent the mitigation area(s) from being disturbed except by those activities that would not adversely affect the intended extent, condition, and function of the mitigation areas.  The applicant has proposed to place conservation easements on the majority of the compensatory mitigation areas as indicated on Table 6.


    In accordance with the 2008 Mitigation Rule, performance standards and success criteria, established by the application of assessments and/or suitable metrics, would be outlined and implemented as requirements.  Channel stability, stream functions, aquatic benthic macroinvertebrates, water quality, and vegetation survival would be monitored along each compensatory mitigation reach, with the exception of biotic monitoring in the ephemeral reaches, for a minimum of 10 years following the completion of construction.  Vegetation, soils, hydrology and Hydrogeomorphic Method Functional Capacity Index would be monitored at each wetland mitigation area.  This monitoring would span up to 10 years, but may be extended based upon a determination that performance standards have not been met.  The applicant’s compensatory mitigation plan includes a maintenance plan, a long-term management plan (which would extend for 10 years following mitigation site release), adaptive management plan (includes root cause analysis and potential corrective actions), and financial assurances to ensure a high level of confidence that the compensatory mitigation projects would be successfully completed, in accordance with applicable performance standards.


    The proposed compensatory mitigation plan is open for comments and is subject to change based on comments received.  After review of all the submitted information, the Corps will make a determination of appropriate compensatory mitigation, in the event a decision is made to issue a DA Permit. 


    WATER QUALITY CERTIFICATION (WQC): An individual Section 401 WQC is required for the discharge of dredged and/or fill material into waters of the United States.  The applicant’s WQC application is currently under evaluation by the Indiana Department of Environmental Management. 


    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 compensatory mitigation work.  The applicant will conduct and submit Phase I archaeological surveys for all off-site compensatory mitigation projects to the Corps and the State Historic Preservation Office (SHPO) for review and comment.  A copy of this Public Notice will be provided to the SHPO.  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 SPECIES:  Each of the off-site compensatory mitigation areas are located within the known or historic range of the endangered Indiana bat (Myotis sodalis) and the threatened northern long-eared bat (Myotis sepentrionalis).  No caves, portals or mine openings are located within any of the proposed off-site compensatory mitigation areas.  The project would involve stream and wetland restoration and preservation work performed within agricultural fields.  The proposed off-site compensatory mitigation measures would have no effect on the Indiana bat or the northern long-eared bat.  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 proposed compensatory mitigation activities, pursuant to Section 7(a) of the Endangered Species Act of 1972 (as amended).


    PUBLIC INTEREST REVIEW AND CUMULATIVE EFFECTS:  As previously indicated in the Public Notice No. LRH-2018-00738-OHR, issued by the Corps on 21 September 2018, the Seven Hills Mine DA permittee 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 United States 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 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. 


    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-N Public Notice: LRH-2018-00738-OHR

    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 Teresa Spagna of the North Branch at (304) 399-5210.