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LRH 2019-177-GUY

Published June 7, 2019
Expiration date: 7/5/2019

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:                       Aracoma Coal Company LLC

                                             Post Office Box 1120

                                             119 North South Road

                                             Holden, West Virginia  25625


LOCATION:  The proposed project would be located near the community of Neibert, in Logan County, West Virginia at latitude 37.780472 and longitude -81.943806.  The proposed culvert installation activities would be constructed in Madison Branch, which flows into the Guyandotte River, a traditional navigable water of the U.S.  See Sheet 1 of 5 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 1,035 linear feet (0.22 acre) of waters of the U.S., as indicated on Sheet 1 of 4, in conjunction with the construction, operation and reclamation of the Lynn Branch No. 2 Deep Mine (U-5001-19).  Approximately 526 cubic yards of durable rock and earthen fill and an 84-inch corrugated metal pipe culvert (CMP) would be temporarily discharged into 1,035 linear feet (0.22 acre) of a perennial stream channel in conjunction with the construction of a stockpile area, parking, area, and other ancillary features associated with the proposed deep mine operation.  Upon completion of the deep mining operations at the site, the fill material and culvert would be removed from the stream and the stream would be restored to its pre-construction condition.  The purpose of the project is to remove approximately 4.8 million tons of steam-grade bituminous coal reserves via deep mining methods at the site over a period of five (5) years. The applicant has applied to the WVDEP for the required Surface Mining Control and Reclamation Act permit (U-5001-19).  Plans of the proposal are attached to this notice (Sheets 1- 5).  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 1,035 linear feet of one (1) perennial stream channel exists at the site.  No wetlands or other special aquatic sites would be affected by the discharge of dredged and/or fill material. 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 an alternatives analysis to this office for our 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.  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 an 84” CMP and 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.  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 required Section 402 National Pollutant Discharge Elimination System permit (NPDES Permit No. WV 1028537) to ensure water quality standards are met.  After mining and reclamation, 14.9 acres of the site would be returned to a post-mining land use of forestland.

COMPENSATORY MITIGATION PLAN: The applicant has submitted a compensatory mitigation plan 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 (534) and mitigation credits (534). In order to compensate for the impact debits, the applicant proposes to purchase 534 stream mitigation credits from the Buffalo Creek Mitigation Bank (LRH-2009-153-GUY).  The bank has the Upper Guyandotte River Watershed as its primary service area and the proposal is located within the primary service area. The applicant’s CMP is currently under review, and is available for public review.  The applicant also proposes to restore 1,035 linear feet of Madison Branch to its pre-construction condition upon completion of the mining activities at the site. The applicant’s proposed compensatory mitigation plan 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 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 cultural resources and architectural resources survey to the West Virginia Division of Culture and History (WVDCH) for their review. In a letter dated May 14, 2019, the WVDCH stated the proposal would have no effect on historic archaeological or architectural resources.  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 SPECIES:  The project lies within the range of the Indiana bat (Myotis sodalis), the northern long-eared bat (Myotis septentrionalis), the gray bat (Myotis grisescens), the Virginia big-eared bat (Corynorhinus townsendii virginianus), and the Guyandotte River crayfish (cambarus callainus). 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 October 22, 2018, the WVDEP stated that because the project is below the 40-acre exemption per the “Range-wide Indiana Bat Protection and Enhancement Plan Guidelines for Surface Coal Mining Operations” and is not located within ¼ mile of a known hibernacula and not within 150 feet of any known maternity roost as per the USFWS’s 4(d) Rule for the northern long-eared bat, they have concluded no federally listed bat species would be impacted by the proposal.  Further, they indicated that based on a Guyandotte River crayfish survey provided by the applicant, Madison Branch does not provide suitable habitat for the species nor does the segment of the Guyandotte River located downstream of Madison Branch contain the species. 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-2017-0177-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.