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LRH 2019-572-TUG

Published May 28, 2020
Expiration date: 6/25/2020

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:        Maben Coal LLC               

                                13905 MacCorkle Avenue, Suite 501

                              One Carbon Center

                                Charleston, West Virginia  25315

LOCATION:  As shown on Sheet # of 23, the proposed project would be located near the community of Maben, in the Slab Fork District of Wyoming and Raleigh Counties, West Virginia at latitude 37.659444° North and longitude -81.363888° West.  The proposed surface mine would be constructed in unnamed tributaries of Cedar Creek and unnamed tributaries of Left Fork.  Cedar Creek and Left Fork flow into Slab Fork, a tributary of the Tug Fork River, a traditional navigable water of the U.S.  See Sheet 1 of 23 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 3,869 linear feet (0.42 acre) of 23 ephemeral streams, as indicated on Sheets 2-11 of 23 and Table 1, in conjunction with the construction, operation and reclamation of the Maben-Sewell Highwall Mine No. 1.  The sediment control features and overburden disposal areas would all occur in upland areas.  The purpose of the project is to remove approximately 913,139 tons of bituminous metallurgical coal reserves within the 197.2-acre Surface Mining Control and Reclamation Act (SMCRA) permit area.  The mining plan, exclusive of reclamation, would occur over a period of two (2) years. The post-mine land use is forestland.  The applicant has applied to the WVDEP for the required SMCRA permit (S-5008-19).  Plans of the proposal are attached to this notice (Sheets 2-23).  A copy of the application, including all supplemental materials (alternative analysis, compensatory mitigation plan, environmental information documents, etc.), is available for review via a Freedom of Information Act request. 

ALTERNATIVE ANALYSIS:  Approximately 3,869 linear feet (0.42 acre) of ephemeral streams are proposed to be permanently impacted 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.

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 overall site contains approximately 24,729 linear feet of intermittent and ephemeral streams, 1.55 acres of wetlands, and 0.59 acre of open waters.  The applicant has indicated they have considered various mine plans to accomplish their proposal.  While the proposal cannot eliminate discharges of dredged and/or fill material into waters of the U.S., the proposal has been designed to eliminate discharges of dredged and/or fill material into the higher quality aquatic resources at the site. 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.  As a result of their avoidance and minimization efforts, the applicant’s proposed mine plan would result into discharges of dredged and/or fill material into 3,869 linear feet of ephemeral stream channels and would avoid approximately 84% of the streams (including all intermittent stream channels) and 100% of the wetlands 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 dredged and/or 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 applicant would establish 6,377 linear feet of ephemeral stream channel on-site and the area 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.  The applicant proposes to establish 6,377 linear feet of 23 ephemeral stream channels within the same hollows of the streams proposed for impact at the site.  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 2,177.24.  The applicant’s compensatory mitigation plan  is proposed to produce 2,513.06 mitigation credits in association with the on-site stream establishment activities.  The established stream channels would be constructed to have the same stream morphology, drainage, and physical habitat as the affected stream channels. The established stream channels would have a 24-inch channel bottom, 2:1 stream banks, and would have stream slopes ranging between 1-3 percent. A 100-foot riparian buffer, measuring 50-feet from the top of each bank, would be established along each established stream channel.  Long-term site protection would be provided for each established stream channel. 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 compensatory mitigation plan is currently under review and is available for review via the Freedom of Information Act request. The 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.  In a letter dated November 19, 2018, the West Virginia Division of Culture (WVDCH) stated the proposal would not affect any archaeological properties listed on or eligible for the NRHP.  They also indicated that one (1) architectural property, Site WM-0149 (railroad overpass), which has been inventoried as a part of the multi-county Coal Heritage survey, is located within the viewshed of the proposal.  Site WM-0149 has been determined to be eligible for the NRHP.  The WVDCH further indicated that because Site WM-0149 is located within the viewshed of the original pre-SMCRA highwall mining that has occurred at the site, the new highwall mining proposal would have no adverse effect on Site WM-0149.  The WVDCH stated no further coordination is required with their office unless the scope and nature of the proposal changes. 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 fulfiled. 

ENDANGERED/THREATENED SPECIES:  The proposal lies within the range of the endangered gray bat (Myotis gresescens), the endangered Indiana bat (Myotis soldalis), the threatened northern long-eared bat (Myotis septentrionalis), the endangered Virginia big-eared bat (Corynorhinus townsendii virginianus), and the endangered Guyandotte River crayfish (Cambarus veteranus).  In a letter dated March 3, 2020, the WVDEP stated the proposal is not likely to affect any federally listed endangered and/or threatened species or their critical habitat. This Public Notice serves as coordination with the United States Fish and Wildlife Service and the WVDEP 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 we  are 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:   Comments and requests for additional information should be submitted electronically to Kimberly Courts-Brown by email at Kimberly.d.courtsbrown@usace.army.mil. If you do not have internet access, comments may be submitted through the U.S. Postal Service (USPS) to the following address:

U.S. Army Corps of Engineers, Huntington District

ATTN: CELRH-RD-E Public Notice: LRH-2018-572-TUG

502 Eighth Street

Huntington, West Virginia 25701-2070

Comments should only be provided through the USPS when electronic transmission is not possible.  Precautionary internal mail handling procedures may be instituted to protect our workforce, which may result in longer than normal times to process and receive hard copy submissions.  To be considered in our evaluation, comments submitted through the USPS should have a postmark dated on, or prior to, the close of the comment period listed on page one (1) of this Public Notice. 

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 or by email at Kimberly.d.courtsbrown@usace.army.mil.

                                                                                                                

             

Table -1 Proposed Discharges of Dredged and/or Fill Material

Maben-Sewell Highwall Mine No. 1 (S-5008-19)

LRH-2019-572-TUG

Permanent Discharges of Dredged and/or Fill Material

Mining Activity

Name of Stream

Flow Regime

Length/Acreage

(linear feet and acreage)

Mine-Through

Stream 28

UNT Left Fork

Ephemeral

100 linear feet/

0.005 acre

Mine-Through

Stream 29

UNT Left Fork

Ephemeral

160 linear feet/

0.007 acre

Mine-Through

Stream 30

UNT Cedar Creek

Ephemeral

100 linear feet/

0.02 acre

Mine-Through

Stream 32

UNT Cedar Creek

Ephemeral

40 linear feet/

0.005 acre

Mine-Through

Stream 33

UNT Cedar Creek

Ephemeral

62 linear feet/

0.003 acre

Mine-Through

Stream 34

UNT Cedar Creek

Ephemeral

90 linear feet/

0.008 acre

Mine-Through

Stream 35

UNT Cedar Creek

Ephemeral

70 linear feet/

0.005 acre

Mine-Through

Stream 36

UNT Cedar Creek

Ephemeral

300 linear feet/

0.06 acre

Mine-Through

Stream 37

UNT Cedar Creek

Ephemeral

35 linear feet/

0.006 acre

Mine-Through

Stream 38

UNT Cedar Creek

Ephemeral

35 feet/

0.02 linear feet

Mine-Through

Stream 39

UNT Cedar Creek

Ephemeral

44 linear feet

0.02 acre

Mine-Through

Stream 40

UNT Cedar Creek

Ephemeral

367 linear feet/

0.08 acre

Mine-Through

Stream 41

UNT Cedar Creek

Ephemeral

61 linear feet/

0.01 acre

Mine-Through

Stream 79

UNT Cedar Creek

Ephemeral

60 linear feet/

0.006 acre

Mine-Through

Stream 80

UNT Cedar Creek

Ephemeral

50 linear feet/

0.005 acre

Mine-Through

Stream 81

UNT Cedar Creek

Ephemeral

165 linear feet/

0.02 acre

Mine-Through

Stream 82

UNT Cedar Creek

Ephemeral

23 linear feet/

0.002 acre

Mine-Through

Stream 85

UNT Cedar Creek

Ephemeral

27 linear feet/

0.002 acre

Mine-Through

Stream 86

UNT Cedar Creek

Ephemeral

260 linear feet/

0.02 acre

Mine-Through

Stream 87

UNT Cedar Creek

Ephemeral

100 linear feet/

0.01 acre

Mine-Through

Stream 88

UNT Cedar Creek

Ephemeral

400 linear feet/

0.12 acre

Mine-Through

Stream 89

UNT Cedar Creek

Ephemeral

320 linear feet/

0.08 acre

Mine-Through

Stream 90

UNT Cedar Creek

Ephemeral

1,000 linear feet/

0.40 acre

TOTAL PERMANENT DISCHARGES

 

 

3,869 linear feet/

0.91 acre

 

 

Table 2 – Proposed On-Site Mitigation (Stream Establishment)

Maben-Sewell Highwall Mine No. 1 (S-5008-19)

LRH-2019-572-TUG

Stream Name

Impact Length (linear feet)

Establishment Length

Flow

Regime

SWVM Debits

SWVM Credits

Existing

&

Target RBP

At 10 years

Existing

&

Target  Average HGM

FCI At 10 Years

 

Stream 28

100

200   

  Ephemeral

51.4625

66.8250

58

0.25

Stream 29

160

224   

  Ephemeral

102.4267

107.8560

72

0.41

Stream 30

100

339   

  Ephemeral

64.0167

163.2285

72

0.41

Stream 32

40

40   

  Ephemeral

20.4317

13.1850

58

0.25

Stream 33

62

62   

  Ephemeral

31.6691

20.4366

58

0.25

Stream 34

90

171   

  Ephemeral

45.9731

56.3659

58

0.25

Stream 35

70   

141   

  Ephemeral

35.7554

46.4771

58

0.25

Stream 36

300   

300   

  Ephemeral

173.9375

123.1875

58

0.28

Stream 37

35   

35   

  Ephemeral

17.8777

11.5369

58

0.25

Stream 38

35   

35   

  Ephemeral

17.8777

11.5369

58

0.25

Stream 39

44   

44   

  Ephemeral

22.4748

14.5035

58

0.25

Stream 40

367   

368   

  Ephemeral

205.0460

142.0020

70

0.28

Stream 41

61   

61   

  Ephemeral

33.3797

22.7147

70

0.26

Stream 79

60   

60   

  Ephemeral

33.1200

22.6800

68

0.28

Stream 80

50   

685   

  Ephemeral

28.5583

274.3425

68

0.31

Stream 81

165   

288   

  Ephemeral

94.2425

115.3440

68

0.31

Stream 82

23   

23   

  Ephemeral

11.7482

7.5814

58

0.25

Stream 85

27   

27   

  Ephemeral

13.7914

8.8999

58

0.25

Stream 86

260   

402   

  Ephemeral

145.2642

155.1218

70

0.28

Stream 87

100   

329   

  Ephemeral

56.4938

129.3587

71

0.29

Stream 88

400   

554   

  Ephemeral

225.9750

217.8259

71

0.29

Stream 89

320   

541   

  Ephemeral

180.7800

212.7144

71

0.29

Stream 90

1,000   

1,448   

  Ephemeral

564.9375

569.3355

71

0.29

TOTALS

Stream Impacts

3,869 linear feet

Stream Establishment

6,377 linear feet

SWVM Debits

2,177.2377

SWVM Credits

2,513.0599

Net SWVM Credits

+335.8222