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LRH 2020-797-BCR

CELRH-RD-E
Published Feb. 24, 2021
Expiration date: 3/23/2021

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.).

 

APPLICANT:        Rockwell Mining LLC      

                             250 W. Main Street, Suite 2000

                            Lexington, KY 40507

LOCATION:  The proposed project would be located approximately 2.0 miles northeast of the community of Wharton, in Boone County, West Virginia at latitude 37°53’16” and longitude -81°38’37”.  The proposed surface mine would be constructed in Workman Branch and unnamed tributaries, Old House Branch, and a palustrine emergent wetland adjacent to Workman Branch.  Workman Branch and Old House Branch are tributaries of Pond Fork.  Pond Fork flows into the Little Coal River, a tributary of the Big Coal River, a traditional navigable water of the U.S.  See attached Sheets 1 and 2 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 4,705 linear feet (0.98 acre) of waters of the United States (U.S.), as indicated on attached Sheets 3-7 and Table 1 and as described below, in conjunction with the construction, operation and reclamation of the Workman Branch Surface Mine. 

Valley Fill No. 1, Sediment Pond No. 1, and Clean Water Diversion Ditch No. 1:  The construction of Valley Fill No. 1 and its associated durable rock underdrain would result in the discharge of approximately 63.4 cubic yards of non-toxic, durable rock fill material into 600 linear feet (0.06 acre) of one (1) intermittent stream channel.  The construction of Sediment Pond No. 1, which would be located below the toe of Valley Fill No. 1, would result in the temporary discharge of approximately 100 cubic yards of clean earthen and rock fill material into 513 linear feet (0.14 acre) into one (1) intermittent stream channel in conjunction with the construction of the embankment structure for the pond.  The construction of Clean Water Diversion Ditch No. 1 would result in the temporary discharge of approximately 73 cubic yards of clean earthen and rock fill material into 318 linear feet (0.06 acre) of one (1) intermittent stream channel.  The diversion ditch would bypass storm-water runoff from the surrounding sub-watershed and direct flow from the main channel of Workman Branch around and away from Valley Fill No. 1 and Sediment Pond No. 1 to prevent co-mingling of waters during construction of the valley fill and the operation of the mine.  The flow would re-enter the unaffected portion of Workman Branch downstream of Sediment Pond No. 1.

Valley Fill No. 2, Sediment Pond No. 2, and Clean Water Diversion Ditch No. 2: The construction of Valley Fill No. 2 and its associated durable rock underdrain would result in the discharge of approximately 663.3 cubic yards of non-toxic, durable rock fill material into 2,672 linear feet (0.54 acre) of one (1) intermittent stream channel. The construction of Sediment Pond No. 2, which would be located below the toe of Valley Fill No. 2, would result in the temporary discharge of approximately 194 cubic yards of clean earthen and rock fill material into 540 linear feet (0.16 acre) into one (1) intermittent stream channel in conjunction with the construction of the embankment structure for the pond.  The construction of the Clean Water Division Ditch No. 2 would result in the permanent discharge of approximately 100 cubic yards of earthen fill material into 21 linear feet (0.003 acre) of one (1) intermittent stream channel and approximately 300 cubic yards of earthen fill material into 0.34 acre of a palustrine emergent wetland.  The diversion ditch would intercept Old House Branch at its headwaters in order to capture flow from an underground deep mine discharge and direct the flow around and away from Valley Fill No. 2 and Sediment Pond No. 2 to prevent co-mingling of waters during construction of the valley fill and the operation of the mine.   The flow would re-enter the unaffected portion of Old House Branch downstream of Sediment Pond No. 2.

The purpose of the project is to remove approximately 2.0 million tons of bituminous metallurgical coal reserves within the 173-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 three (3) years. The post-mine land use is forestland.  The applicant has applied to the West Virginia Department of Environmental Protection (WVDEP) for the required SMCRA permit (S-5002-20).  Plans of the proposal are attached to this notice (Sheets 1-15).  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, or via the Freedom of Information Act. 

ALTERNATIVE ANALYSIS:  Approximately 4,705 linear feet of intermittent streams and 0.34 acre of a palustrine emergent wetland are proposed to be permanently and temporarily filled as a result of the mining activities.  No 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 submittal can be reviewed, by appointment, at the above address or a copy may be requested under the Freedom of Information Act.

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 11,668 linear feet of intermittent stream channels and 0.34 acre of a palustrine emergent wetland exist at the site as determined by a Preliminary Jurisdictional Determination dated September 10, 2019.  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 proposal would avoid discharges of dredged and/or fill material into 6,963 linear feet (67%) of intermittent streams at the site. The applicant indicated the entire proposed project footprint and adjacent areas have been previously affected by pre-SMCRA deep and contour/auger mining.  The applicant has avoided discharges of dredged and/or fill material into undisturbed watersheds at the site and the streams proposed for discharge of fill material have been previously affected by the pre-SMCRA mining activities.  The applicant has designed the proposed valley fills to be over-stacked to increase their storage volume without resulting in additional impacts to waters of the U.S.  Construction of the valley fills would be sequential and proceed from the toe of the fill up, which minimizes the length of time that overburden materials are exposed to runoff and weathering.  A special material handling plan has been developed by the applicant and 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) during all phases of the proposal to ensure water quality standards are met.  Clean water diversion ditches would be constructed to route storm-water run-off, flow from un-disturbed upstream streams, and flow associated with an existing deep mine discharge, around the proposed valley fills and sediment ponds into unaffected down gradient streams to prevent co-mingling of waters during operation of the surface mine.  Site reclamation would occur contemporaneously and would be sequenced to reduce total land disturbance.  No more than 50% of the permitted acreage or 200 acres, whichever is less, would be disturbed and/or un-reclaimed at any one time.  At all times, best management practices and guidance from the “Technical Handbook of Standards and Specifications for Mining Operations in West Virginia” would be employed during all phases of the proposed mining and reclamation activities.  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 the unavoidable discharge of fill material into waters of the U.S.  The applicant proposes to establish and re-establish approximately 5,751 linear feet of intermittent and perennial stream channels at the site as described below (See attached Sheets 8-15).

Stream Re-establishment (Workman Branch and Old House Branch):  Upon completion of the mining, reclamation, and removal of the sediment control structures at the site, the applicant would re-establish a total of 1,371 linear feet of intermittent stream channel and associated riparian buffer at the location of Pond No. 1, CWD No. 1, and Pond No. 2.  The hydrology of the re-established stream channels is expected to be the same as the pre-project stream channels and exhibit similar drainage patterns.  The post-project re-establishment channels would also take advantage of the re-graded drainage patterns, slopes, precipitation induced run-off, and pre-project groundwater zones. 

Stream Establishment (Left UNT Old House Branch):  Upon completion of the mining and reclamation activities at the site, the applicant would establish approximately 3,495 linear feet of perennial stream channel along an existing upland bench located on the north side of Valley Fill No. 2.  This established channel would have jurisdictional connectivity to Old House Branch via ONB-5 (further described below). The hydrology of the established stream channel would be driven by a perennial deep mine discharge that would be intercepted by the newly established stream channel. The post-project establishment channel would also take advantage of the re-graded drainage patterns, slopes, precipitation induced run-off, and pre-project groundwater zones.

Stream Establishment (OHB-5):  Upon completion of the mining and reclamation activities at the site, the applicant would establish approximately 885 linear feet of perennial stream channel along OHB-5, an existing non-jurisdictional drainageway.  Flow from the established segment of Left UNT Old House Branch (described above) would be routed through the established segment of OHB-5, and would flow into Old House Branch. The hydrology of the established stream channel would be driven by a perennial deep mine discharge that would be intercepted by the newly established stream channel. The post-project establishment channel would also take advantage of the re-graded drainage patterns, slopes, precipitation induced run-off, and pre-project groundwater zones.

All of the mitigation stream channels would be constructed utilizing natural stream channel design techniques, substrate restoration, in-stream habitat structures, bank stabilization, and the establishment of a vegetated riparian buffer zone (approximately 45 feet from the top of each bank). Long-term site protection would be provided for the mitigation stream channels. 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.

Wetland Mitigation:  To mitigate for the loss of wetland at the site, the applicant proposes to purchase 0.68 wetland mitigation bank credits from an approved mitigation bank within the Coal River watershed. 

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 5,006.8.   The applicant’s proposed on-site stream mitigation work is predicted to produce 5,187.5 mitigation credits.   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: The applicant must obtain a Section 401 Water Quality Certification (WQC) from the WVDEP assuring that applicable laws and regulations pertaining to water quality are not violated.  A DA permit, if otherwise warranted, would not be issued for this project until the Section 401 WQC has been issued or waived and the 401(a)(2) process as described in the “Clean Water Act Section 401 Certification Rule” (Rule, 85 Federal Register 42,210 [July 13, 2020]) has been completed.  The applicant has submitted the required Section 401 WQC application to the WVDEP and in an email dated January 12, 2021, the WVDEP indicated the complete Section 401 WQC application is currently under evaluation.   

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 August 7, 2020 to the applicant, the West Virginia Division of Culture and History (WVDCH) indicated that fifteen (15) previously documented architectural sites have been identified within a one-mile study area. WVDCH stated one (1) of the resources (Pond Fork Bridge – HPI #BO-815) has been recommended for inclusion on the NRHP, two (2) resources were not evaluated, and twelve (12) resources were not recommended for inclusion on the NRHP.  The WVDCH also stated the view-shed survey of the project area resulted in the identification of two (2) structures (cottage and garage associated with the Eastern Gas and Fuels Company’s Wharton No. 2 mine operation) which were recommended as eligible for the NRHP.  The WVDEP concluded the proposed Workman Branch Surface Mine would have no adverse effect on the three (3) resources and would have no effect on archaeological historic properties.  The WVDCH concurred with these determinations and stated no further consultation regarding historic or archaeological resources is required for the proposal. 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 bat (Myotis gresescens), the endangered Indiana bat (Myotis sodalis), and the threatened northern long-eared bat (Myotis septentrionalis). The applicant conducted a bat survey in the project area between July-August 2020.  The survey stated no Indiana bats were captured and one (1) northern long-eared bat was captured during the survey.  In a letter dated September 20, 2020, the WVDEP concluded the proposed project would not result in impacts to federally listed endangered or threatened bat 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:   Comments and 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

ATTN: CELRH-RD-E Public Notice: LRH-2020-797-BCR

502 Eighth Street

Huntington, West Virginia 25701-2070

Copies should only be provided through the USPS when electronic submission 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 date on, or prior to, the close of the comment period listed on page one (1) of this Public Notice.  Please note, the 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 pubic under provisions of the Freedom of Information  Act.  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

Workman Branch Surface Mine

LRH-2020-797-BCR

Mining Activity

Name of Water of U.S.

Flow Regime

Length/Acreage

Volume of Discharge

Duration of Impact

Valley Fill No. 1

3rd Left UNT Workman Branch

Intermittent

600 lf

0.06 acre

63.4 cy

Permanent

Sediment Pond No. 1

Workman Branch

Intermittent

513 lf

0.14 acre

100 cy

Temporary

Clean Water Diversion Ditch No. 1

Workman Branch

Intermittent

318 lf

0.06 acre

63.4 cy

Temporary

Valley Fill No. 2

Old House Branch

Intermittent

2,672 lf

0.54 acre

663.3 cy

Permanent

Sediment Pond No. 2

Old House Branch

Intermittent

540 lf

0.16 acre

193.6 cy

Temporary

Clean Water Diversion Ditch No. 2

Old House Branch

Intermittent

21 lf

0.003 acre

100 cy

Permanent

Clean Water Diversion Ditch No. 2

Wetland WL-4

Emergent

0.34 acre

300.0 cy

Permanent

Total Permanent Discharges

3,293 lf

0.95 acre

1027.8 cy

 

Total Temporary Discharges

1,371 lf

0.40 acre

367.0 cy

 

Total Discharges of Dredged and/or Fill Material Into Waters of the U.S.

4,664 lf

1.35 acre

1,394.8 cy

 

                                  

Table 2 – Proposed Compensatory Mitigation

Workman Branch Surface Mine

LRH-2020-797-BCR

Mitigation Channel Name

Linear Feet

Predicted Flow Regime

Riparian Buffer Width

Mitigation Type

Workman Branch

(57+19 to 65+50)

831 lf

Intermittent

 

 

45 lf top of each bank

Post-Project On-site Stream Re-establishment

Old House Branch

(33+89 to 39+29)

540 lf

Intermittent

Post-Project On-Site Stream Re-establishment

Left UNT Old House Branch

(constructed in uplands at CWD #2)

3,495 lf

Perennial

Post Project On-Site Stream Establishment

Left UNT Old House Branch (in location of non-jurisdictional OHB-5)

885 lf

Perennial

Post-Project Establishment of JD Connectivity Channel

Total Proposed Stream Mitigation

5,751 lf