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LRH 2019-387-GUY

Published Nov. 21, 2019
Expiration date: 12/19/2019

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:       Rhino Eastern LLC           

                             Post Office Box 260

                             Bolt, West Virginia  25817

LOCATION:  The proposed project would be located northeast of the community of Glen Fork in Wyoming County, West Virginia at latitude 37°43’32” and longitude -81°31’14”.  The proposed surface mine would be constructed in unnamed tributaries of Glen Fork of Laurel Fork.  Laurel Fork flows into the Guyandotte 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 4,144 linear feet (0.36 acre) of waters of the U.S., as indicated on Sheet 2 of 10 and Table 1, in conjunction with the construction, operation and reclamation of  the Tom Bailey Surface Mine.  Approximately 74.2 cubic yards of durable rock fill would be permanently discharged into approximately 85 linear feet (0.005 acre) of one (1) ephemeral stream and 3,050 linear feet of two (2) intermittent streams in conjunction with the construction of the underdrain structure associated with Valley Fill No. 1.  Approximately 38.4 cubic yards of durable rock fill and clean earthen fill would be temporarily discharged into 1,009 linear feet (0.13 acre) of an intermittent stream in conjunction with the construction of Sediment Ponds 1A and 1B.  The purpose of the project is to remove 4.1 million tons of bituminous metallurgical coal reserves within the 468.8-acre Surface Mining Control and Reclamation Act (SMCRA) permit area.  The proposed surface mine operation would use a combination of area, contour, and highwall mining techniques to recover the coal reserves. The mining plan, inclusive of reclamation, would occur over a period of eight (8) years. The post-mine land use is forestland.  The applicant has applied to the WVDEP for the required SMCRA permit (S-5006-19).  Plans of the proposal are attached to this notice (Sheets 1-10).  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 3,135 linear feet of intermittent and ephemeral streams are proposed to be permanently filled and 1,009 linear feet of an intermittent stream is proposed to be temporarily filled as a result of the mining activities.  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 the required alternative analysis for review. A complete copy of the applicant’s alternatives analysis can be reviewed by appointment at the above address. 

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 28,597 linear feet of intermittent and ephemeral stream channel 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 initial mine plan included five (5) in-stream disposal areas (valley fills).  The applicant revised the mine plan to eliminate four (4) valley fills.  The applicant’s proposed mine plan includes over-stacking the proposed valley fill to further reduce discharges of dredged and/or fill material into waters of the U.S.  As a result of their avoidance and minimization efforts, the applicant’s proposed mine plan would avoid approximately 89% of the stream channels located at the site.  The material proposed to be discharged into waters of the U.S. consists of native, durable rock and clean earthen soil.  Best management practices, including the use of temporary sediment control structures and contemporaneous reclamation and re-vegetation 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 (issued by the WVDEP) to ensure water quality standards are met.  After mining and reclamation, the stream segments associated with the sediment pond would be re-established and the area would be returned to a post-mining land use of forestland.

COMPENSATORY MITIGATION PLAN (CMP): The applicant has submitted a CMP to compensate for unavoidable discharges of fill material into waters of the U.S.  The applicant proposes to re-establish approximately 992 linear feet of intermittent stream channel at the site of the sediment control ponds and establish 715 linear feet of intermittent stream channel on-site.  The applicant also proposes to perform stream restoration and enhancement activities within 12,833 linear feet of Trough Fork, Manns Camp Branch, and Upper Big Branch.  All of these streams are tributaries of Glen Fork, the receiving stream for the proposal.  The off-site mitigation area is located approximately two (2) miles east of the proposed surface mine.  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 and mitigation credits.  The impact debits for the proposed surface mine total 3,576.34.  The applicant’s CMP is proposed to produce 676.38 mitigation credits in association with the on-site stream re-establishment activities (992 linear feet), 742.88 mitigation credits associated with the on-site stream establishment activities (715 linear feet), and 2,690.75 mitigation credits associated with the off-site stream restoration and enhancement 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 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 October 3, 2019 to the applicant, the West Virginia Division of Culture and History (WVDCH) indicated the a Phase I Archaeological Survey and Architectural Review would be required for the proposal. This information will be prepared by the applicant and provided 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.  No DA permit will be issued until all obligations under Section 106 of the National Historic Preservation Act of 1966 have been fulfilled. 

ENDANGERED/THREATENED SPECIES:  The proposal lies within the range of the endangered gray (Myotis gresescens), the endangered Indiana bat (Myotis soldalis), the threatened northern long-eared bat (Myotis septentrionalis), and the endangered Guyandotte River crayfish (Cambarus veteranus).  The applicant has requested consultation with the U.S. Fish and Wildlife Service (USFWS) and the WVDEP regarding endangered and threatened species. 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-2019-387-GUY

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 Discharges of Dredged and/or Fill Material

Tom Bailey Surface Mine


Mining Activity

Name of Stream

Flow Regime


Permanent Discharges of Dredged and/or Fill Material

Valley Fill 1 – Underdrain Structure

UNT Glen Fork


3,050 linear feet

0.22 acre



Valley Fill 1 – Underdrain Structure

UNT Glen Fork


85 linear feet

0.01 acre





Temporary Discharges of Dredged and/or Fill Material

Sediment Ponds 1A and 1B

UNT Glen Fork


1,009 linear feet

0.13 acre

Total Discharges of Dredged and/or Fill Material

Into Waters of the U.S.

4,114 linear feet

0.36 acre