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LRH 2019-342-WFR

Published Aug. 23, 2019
Expiration date: 9/18/2019

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.  This notice serves as the United States (U.S.) Army Corps of Engineers’ (Corps) request to the West Virginia Department of Environmental Protection (WVDEP) to act on Section 401 Water Quality Certification for the following application.


APPLICANT:       Vecellio & Grogan, Inc.

   P.O. Box 2438

                                            Beckley, West Virginia  25802


LOCATION:  The proposed project would be located in unnamed tributaries (UT) of Stonecoal Creek and their associated wetlands, near Weston, in Lewis County, West Virginia, at Latitude 39.028165 and Longitude -80.425543.  The project location is shown on the attached mapping (Sheet 1 of 7).

DESCRIPTION OF PROPOSED WORK:  The applicant has requested DA authorization for the proposed discharge of dredged and/or fill material into waters of the U.S. in conjunction with the construction of a spoil disposal site.  The proposed soil disposal site would be used for the storage of excess spoil material generated by excavation of a proposed highway project in the vicinity.  The excess soil disposal site would have the capacity to store approximately 850,000 cubic yards of material. 

To construct the proposed soil disposal site, the applicant proposes to discharge a total of 3,857.09 cubic yards of permanent fill material into 174.55 linear feet (lf) of two streams and 2.20 acres (ac) of three wetlands, as described in the attached Tables 1 and 2.  The applicant has also requested authorization to temporarily discharge fill material into 0.17 ac of one wetland for temporary construction access.  After completion of the proposed project, all temporary material would be removed and the wetland would be restored.  Plans of the proposal are attached to this notice.

ALTERNATIVES ANALYSIS:  The proposed project would result in the permanent discharge of fill material into 174.55 linear feet (lf) of two streams and 2.20 ac of three wetlands.  Construction of the proposal does not require access to or siting within wetlands to fulfill its basic purpose and is considered a non-water dependent activity.  The Section 404(b)(1) Guidelines state that for non-water dependent activities, practicable alternatives that do not involve wetlands are presumed to be available unless clearly demonstrated otherwise.  All practicable alternatives not involving such discharges into special aquatic sites are presumed to have less adverse impacts to the aquatic system.  The applicant is required to provide an alternative analysis that must overcome the presumption prior to receiving authorization for the placement of fill material. 

The applicant has submitted the required alternative analysis, which is currently under review.  The applicant has indicated they selected the proposed project location to serve as a disposal area for excess spoil from a highway project in the vicinity.  The applicant has indicated the construction sequencing of the overall roadway project reduces the available locations that can be considered for excess fill locations. A complete copy of the applicant’s alternative analysis can be reviewed, by appointment, at the above address.  No permit will be issued until the alternative analysis clearly shows 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 discharges of dredged and/or fill material into these waters.  If waters of the U.S. cannot be avoided, then impacts must be minimized.  A total of 1,771 linear feet of seven (7) streams and 2.76 acres of five (5) wetlands are located within the project area.  The applicant has indicated avoidance and minimization measures were incorporated into the project design to the maximum extent possible.  A total of 1546.45 lf of stream and 0.56 ac of wetland have been avoided.

COMPENSATORY MITIGATION PLAN:   To compensate for the permanent discharge of dredged and/or fill material into the streams as described in the attached Table 1, the applicant proposes to purchase a total of 87.801 stream credits from an approved mitigation bank and/or, if bank credits are not available, purchase 98.337 stream credits from the West Virginia In-Lieu Fee Program.  To compensate for the permanent discharge of dredged and/or fill material into wetlands as described in the attached Table 2, the applicant proposes to purchase a total of 2.20 wetland credits from an approved mitigation bank and/or, if bank credits are not available, the purchase of 5.186 wetland credits from the West Virginia In-Lieu Fee Program.  The applicant calculated the amount of compensatory mitigation using the Corps’ West Virginia Stream and Wetland Valuation Metric (SWVM).  See Tables 1 and 2 for a summary of the proposed compensatory mitigation measures.

WATER QUALITY CERTIFICATION: A Section 401 Water Quality Certification is required for this project.  It is the applicant’s responsibility to obtain certification from the WVDEP.

HISTORIC AND CULTURAL RESOURCES:  This Public Notice serves as coordination with the State Historic Preservation Office (SHPO) in accordance with Section 106 of the National Historic Preservation Act.  In a letter to the applicant dated April 22, 2019, the SHPO stated there are no properties currently listed on the National Register of Historic Places (NRHP) which would be indirectly or directly affected by the proposed work.  In addition, the SHPO stated that there are no previously documented archaeological sites within the proposed project area and that the project would have no effect on archaeological historic resources.  The Corps has determined the proposed project has no potential to affect any property eligible or potentially eligible for listing on the NRHP.  A copy of this Public Notice will be sent to the SHPO for their review.  Comments concerning archeological sensitivity of a project area should be based upon collected data.

ENDANGERED AND THREATENED SPECIES: The proposed project is located within the known or historic range of the following federally-protected species: Indiana bat (Myotis sodalis) (endangered) and the northern long-eared bat (Myotis septentrionalis) (threatened).  The proposed project site contains a forested area that may be suitable habitat for these bat species.  Forested areas of the site would be removed as a result of the proposed project. 

In a technical assistance letter dated April 12, 2019, the United States Fish and Wildlife Service (Service) stated that they do not anticipate the proposed project is likely to adversely affect the Indiana bat, given the project: 1) will affect less than 17 acres of potential Indiana bat foraging or roosting habitat; 2) is not within any of the Indiana bat hibernacula or summer use buffers; 3) will not affect any potential caves or mines that could be used as hibernacula for this species; and 4) effects to aquatic features used for foraging habitat will be insignificant.  The Corps has determined that the proposed project is not likely to adversely affect the Indiana bat. 

The Service also stated that the proposal is within the range of the northern long-eared bat (NLEB), and the NLEB may be affected by the proposed construction and operation of this project.  The project would not involve the removal of trees within 0.25 miles of know NLEB hibernacula, nor would the project cut or destroy known, occupied maternity trees for the NLEB during the pup season (June 1 to July 31).  The Corps has determined any take of the NLEB associated with this project is exempted under the 4(d) rule and no conservation measures are required. 

Based on this information, the Corps has determined the proposed project is not likely to adversely affect the continued existence of any threatened or endangered 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 a request to the United States Fish and Wildlife Service for 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).

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 part 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.  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 at the beginning 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:

United States Army Corps of Engineers


Public Notice: LRH-2019-342-WFR

502 Eighth Street

Huntington, WV 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, maybe available to the public under the 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, or if you would like to schedule an appointment to review the complete permit application, please contact Sarah Workman of the South/Transportation Branch by telephone at (304) 399-5710 or by email at