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LRH 2021-334-GUY

CELRH-RD-E
Published July 14, 2021
Expiration date: 8/12/2021

TO WHOM IT MAY CONCERN:  The United States (U.S) Army Corps of Engineers (USACE)  has received an application for a Department of the Army (DA) Permit, under the provisions of Section 404 of the Clean Water Act, for the applicant’s proposed discharge of dredged and/or fill material into waters of the U.S.  

APPLICANT:  Ramaco Resources, LLC

                          250 West Main Street, Suite 210

                          Lexington, KY 40507

           

LOCATION:  As depicted on the attached Sheets 1 and 2, the proposed project would be located approximately six miles east of Wylo, in Logan County, West Virginia (Latitude 37.708, Longitude -81.761).  The on-site waters include Mill Branch of Elk Creek of the Guyandotte River, a navigable water of the U.S.

PROJECT HISTORY: In 2014, the Corps authorized, under a Nationwide Permit 14, temporary discharges of dredged and/or fill material into a total of 220 linear feet of waters of the U.S. associated with the construction of four linear transportation stream crossings associated with the original Surface Mining Control and Reclamation Act (SMCRA) permit No. S-5007-13.  Amendment 1 to that SMCRA permit did not require a DA authorization.  The activities authorized by the West Virginia Department of Environmental Protection (WVDEP) under both the original SMCRA permit and the Amendment 1 are presently ongoing. 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA permit to permanently discharge dredged and/or fill material into 806 linear feet (0.08 acre) of an intermittent stream (Mill Branch of Elk Creek), and 0.048 acre of one emergent wetland (located on an abandoned mine bench) as a result of the construction, operation and reclamation of the proposed Ram No. 1 Surface Mine - Amendment No. 2.  Durable, non-toxic earthen material would be discharged into 700 linear feet (0.07 acre) of Mill Branch to serve as a rock underdrain within the footprint of the proposed Excess Spoil Disposal Area No. 6 (ESDA-6).  An additional 106 linear feet (0.01 acre) of Mill Branch would be impacted by the construction of a drainage channel to divert flow from the toe of ESDA-6 to an on-bench sediment pond.  The proposal is illustrated on the attached Sheets 2 through 4.  The proposed discharge of dredged and/or fill material into waters of the U.S. is summarized in Table 1 below.  

 

        TABLE 1-Proposed Discharge of Dredged or Fill Material Into Waters of the U.S.

         Associated With the Construction of the Ram Surface Mine No. 1, Amendment 2.

Mill Branch is presently degraded due to mining that occurred prior to the 1977 SMCRA.  Table 2 below provides baseline stream condition data:

 

TABLE 2-Baseline Stream Condition Data for Mill Branch

 

Stream Name

Vegetative Bank Cover

BEHI1

HA Score2

pH

Field Conductivity

HGM3

 

WVSCI4

Mill Branch (at EMDS-6 site)

70-82% tree canopy cover

Moderately Stable

87

7.5

131

.90

36.5

            [1] Bank Erosion Hazard Index.

2 Habitat Assessment protocol contained in USEPAs Rapid Bioassessment Protocols for Streams and Wadeable Rivers.

3 HGM= Hydrogeomorphic method

4 West Virginia Stream Condition Index: Benthics data collected April 22, 2020.

 

The purpose of the proposed project is to recover an additional 267,000 tons of metallurgical coal (found adjacent to the active mining area) and to complete the overall Ram No. 1 project. 

The Amendment 2 activity would involve continued mining (via contour/highwall and re-mining methods), re-handling of material generated from the pre-SMCRA mining, backfilling, and fully reclaiming the Amendment 2 area (including 4,700 linear feet of existing abandoned mine bench/highwall) to current reclamation standards.  With Amendment 2, the Ram No.1 mine project would cumulatively reclaim 49,774 linear feet of abandoned highwall/bench area.  The proposed Amendment 2 activity is illustrated on Sheets 1 through 9 attached to this public notice. 

A copy of the applicant’s DA permit application, including all supplemental materials (alternatives analysis, compensatory mitigation plan, environmental information document, etc.), is available for review in the Huntington District office, by appointment, or via the Freedom of Information Act.

The WVDEP issued surface mining permit S-5007-13 Amendment 2 pursuant to the SMCRA, and has issued a National Pollutant Discharge Elimination System (NPDES) permit WV1028090 Modification 3, with conditions, for the Amendment 2 activity to ensure water quality standards are met.  

ALTERNATIVES ANALYSIS:  Approximately 806 linear feet of intermittent stream is proposed to be permanently filled as a result of the mining activities.  The applicant has submitted the required alternative analysis for review.

To identify the least environmentally damaging practicable alternative, the applicant conducted an alternatives analysis (AA).  The AA describes evaluations conducted for the entire SMCRA-permitted mine (original permit through the proposed Amendment 2).  The AA included an assessment of a “no-action” alternative (e.g., no discharge of dredged and/or fill material into waters of the U.S.), alternative mining methods, alternative excess material storage sites, and alternative on-site designs.  The AA indicates there is no practical alternative that would avoid all direct impacts to waters of the U.S. while meeting the overall project purpose.  The applicant determined that each mining method, as a stand-alone method, is not practicable.  However, the AA illustrates that a combination of Area Mining, with Contour and Highwall Mining, as described above under “Description of Proposed Work”, is practicable.  Re-mining the previously mined areas using these mining methods would also allow the elimination and reclamation of the pre-SMCRA highwalls and benches. 

The mined area would be returned to Approximate Original Contour.  However, excavated overburden has a greater volume than in its pre-mined state.  The applicant determined it is not feasible to return all excavated material back onto the mined area (including the existing pre-SMCRA mine bench areas). The applicant determined that back-stacking all remaining overburden within the actual mined area is not practicable due to factors such as stability, drainage control, access, and area availability. Utilization of the backfill storage area has been maximized. As much overburden material as practical has been designated to be placed back on the mine bench.  The regrade has been designed to meet its limit of available storage capacity.  The applicant then evaluated 20 potential Excess Material Disposal Sites (EMDS) within 1,500 feet of the material’s source, based on criteria such as geotechnical stability, storage capacity, haulage and existing barriers, property ownership, costs, public safety, level of impacts to the aquatic ecosystem, and SMCRA requirements.  Two of the evaluated EMDS sites were determined to be practicable to meet the overall project purpose.   The construction of EMDS No. 2 would not impact waters of the U.S.  The construction of EMDS No.6 would result in the loss of 806 linear feet of Mill Fork and 0.048 acre of emergent wetland, as stated above under “Description of Proposed Work”.  The applicant determined this plan, as proposed, would have the minimal amount of direct impacts to waters of the U.S. while also meeting the overall project purpose.

No permit will be issued unless the applicant clearly demonstrates 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 these sites.  If waters of the U.S. cannot be avoided, then the discharge of dredged and/or fill material into waters of the U.S. must be minimized.  The project area consists of steep hillsides and narrow valleys with previously mined, un-reclaimed highwalls and unconsolidated material.  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.

All drainage and sediment control structures would be located in upland areas.  Measures to minimize adverse impacts that could occur as a result of the proposed fill material in waters of the U.S. are identified in detail within their SMCRA permit and NPDES permit to ensure water quality standards are met.  These plans and actions include drainage and sediment control plan, re-vegetation and reclamation plan (to a land use of forest land), hydrologic reclamation plan, material testing and handling plan, best management practices (from the “Technical Handbook of Standards and Specifications for Mining Operations in West Virginia”), water quality monitoring plan, and other actions specified in their NPDES permit.  Temporary sediment controls (i.e., silt fence, straw bales, rock checks, dikes, and/or protective stream barriers) would be used to prevent and minimize the deposition of sediments downstream.  Additionally, the applicant predicts the reclamation of abandoned highwalls and other previously disturbed areas would reduce downstream sediment loads as a result of the proposal.

COMPENSATORY MITIGATION PLAN (CMP):  The applicant has submitted a proposed CMP dated November 28, 2020 to compensate for the unavoidable loss of 806 linear feet of Mill Branch and the 0.048-acre of emergent wetland.  The applicant used the West Virginia Stream and Wetland Valuation Metric (WVSWVM) to record baseline stream condition to calculate impact debits and mitigation credits needed to fully compensate for the permanent and temporal losses of aquatic functions.

The applicant proposes to restore 2,950 linear feet of intermittent, high-gradient Rockhouse Branch of Elk Creek, located as shown on attached Sheet 4.  Rockhouse Branch is presently degraded due to “pre-SMCRA” mining and road construction.  The applicant performed evaluations at 14 stations along 3,000 linear feet of Rockhouse Branch to document baseline conditions, deficiencies, restoration needs, and to identify stable sections that could be used as reference reaches for ideal dimensionless ratio targets for Rockhouse Branch.  Approximately 2,900 feet of the stream had eroded banks and substrate dominated by sediments of less than one millimeter.  Along this reach, Bank Erosion Hazard Index (BEHI) scores ranged from “High” to “Extreme”.  Based on the BEHI and Near-Bank Stress calculations, the applicant estimated bank erosion along Rockhouse Branch is contributing 297 tons per year of sediment into Elk Creek. The applicant estimates the natural sediment load for this stream should be approximately 10-17 tons per year.  Approximately 50-75 feet of stream channel had stable banks and appropriate substrate.  Table 3 below summarizes the baseline measures for Rockhouse Branch and the predicted post-mitigation measures.

The CMP’s goal is to stabilize the stream banks and to create appropriate substrate by re-shaping the morphology of the channel as close as practicable to its original configurations.  The work would be completed within one year of initiating the proposed project discharges of dredged and/or fill material into Mill Branch. 

 

TABLE 3-Baseline and Anticipated Post-Mitigation Conditions

 

Mitigation Stream AND

Time Period

HA

Score1

pH

Field Conduct-ivity

HGM2

WVSCI

BEHI range3

Rockhouse Branch

[BASELINE CONDITIONS]

88

6.8

68

.64

 

66.9

“High” to “Extreme”

Rockhouse Branch

[ANTICIPATED  CONDITIONS TEN YEARS AFTER RESTORATION]

144

6.8

68

.91

72

Stable range.

[1] HA= Habitat Assessment score per USEPAs Rapid Bioassessment Protocols for Streams and Wadeable Rivers.

2 HGM=Hydrogeomorphic method, a component of the West Virginia Stream & Wetland Valuation Metric.

3 BEHI=Bank Erosion Hazard Index; Rosgen, 2001.

Rockhouse Branch would be reconfigured to an appropriate pattern and dimensions based on a stable reach of Rockhouse Branch, regional curve data and natural stream design techniques.  The work would ensure proper entrenchment ratios, pool to pool spacing, width to depth ratios, substrate size, and riparian vegetation to establish a stable step-pool system found naturally throughout the watershed.  Grasses and live stakes would be planted along the banks and the secondary channel for ground cover and protection.  Where necessary, tree/shrub cover would be re-established or supplemented along the stream (150 feet from the top of each bank) to maintain 400 stems per acre.  The majority of plantings would be located along the stream banks.  Upland area trees would be preserved.

With optimal morphology and stabilized banks, the applicant anticipates that excess sediments would be flushed out of the channel and substrate composition would develop similar to percentages observed within reference reaches since substrates would already exist within the channel.  If necessary, additional desirable substrates would be added.  The applicant expects this CMP would result in improved stability, substrate, and habitat quality.  The applicant anticipates that restoring Rockhouse Branch would also reduce excessive sediment loads along Elk Creek. The CMP includes SWVM data sheets, indicating that Amendment 2, together with successful improvements to Rockhouse Branch, would result in a ratio of 647.88 impact debits to 761.2 mitigation credits.  Ramaco has no plans for future disturbance of this drainage area.

The applicant proposes to monitor the Rockhouse Branch mitigation site annually for at least five years after completing the mitigation work.  Mitigation success would be measured using parameters used in the WVSWVM, and other parameters to determine the stream’s physical, chemical and biological conditions, and stability as compared to its baseline conditions, and ultimately the mitigation credits achieved.  The restored Rockhouse Branch must contain stable and sustainable morphology similar to that specified in the CMP.  If the CMP efforts are not fully successful, the applicant would implement adaptive measures.  Additional mitigation credits, if necessary, would be obtained by utilizing a mitigation bank, in-lieu fees, or providing additional mitigation elsewhere.  The applicant is currently seeking long-term protection of the stream and its buffer zone (150 feet from each bank) in the form of restrictive covenants.

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 and the USACE’s evaluation.  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 would not be violated.  A DA permit, if otherwise warranted, would not be issued 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 for this project. 

HISTORIC AND CULTURAL RESOURCES:  This office has consulted the National Register of Historic Places (NRHP) and has determined there are no properties currently listed on the NRHP within or adjacent to the proposed Amendment 2 project area.  In a letter dated June 17, 2020 to the WVDEP, the West Virginia State Historical Preservation Officer (SHPO) stated their opinion that the proposed Amendment 2 project would have no adverse effect on archaeological historic properties, and there are no architectural properties which are eligible for or listed on the NRHP within its proposed project’s direct or indirect area of potential effects, and therefore no further consultation is necessary.  Based on the information provided, the SHPO review, and other available information, the Corps has determined the proposed project would have no adverse effect on historic properties.  This Public Notice serves as coordination of this determination with the SHPO, pursuant to Section 106 of the National Historic Preservation Act of 1966.  A DA permit will not be issued until all obligations under Section 106 of the National Historic Preservation Act of 1966 have been fulfilled.   

ENDANGERED/THREATENED SPECIES: The U.S. Fish and Wildlife Service’s (USFWS) Information for Planning and Consultation (IPaC) system indicates that the proposal lies within the range of the endangered gray bat (Myotis gresescens), the endangered Indiana bat (Myotis sodalis), the threatened northern long-eared bat (Myotis septentrionalis), and the endangered Guyandotte River crayfish (Cambarus veteranus).

A report titled “Guyandotte River Crayfish (Cambarus veteranus) Survey at Ten Sites For Ramaco Resources, LLC (WVDEP Permit Nos. S-5007-13, AM#1...”, dated November 2019, states that a survey of the Elk Creek of Guyandotte River was conducted in 2017 and again on November 5, 2019.  No Cambarus veteranus were captured, indicating that the species and suitable habitat are not present within Elk Creek.  By letter dated January 10, 2020, the USFWS’ West Virginia field office stated that, based on this survey, no Guyandotte River crayfish are expected to be affected by the project and no biological assessment is required.  However, negative survey results are valid for two years (to expire November 2021), after which additional coordination with the USFWS will be necessary to determine the necessity of additional surveys.

By letter dated April 28, 2020, the WVDEP advised of their review of the Amendment 2 proposal to add 28.52 acres to its existing SMCRA permit.  As stated therein, no known winter bat habitat exists in the Amendment 2 area. In accordance with the “Range-wide Indiana Bat Protection and Enhancement Plan Guidelines for Surface Coal-Mining Operation” the project area falls below the 40-acre exemption requirement, is not located within ¼ mile of a known hibernacula, or located within 150 feet of any known maternity roost as per the USFWS’s 4(d) Rule for the northern long-eared bat. No negative impacts to federally listed bats are anticipated to occur as a result of project activities and no further actions are required.  Considering these determinations and the USFWS’ determination concerning the Guyandotte River crayfish, the WVDEP concluded that no federally listed endangered and threatened species are expected to be impacted by the Amendment 2 project activity.

This public notice serves as a request to the USFWS for any additional 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 ESA 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 Corps Regulatory Program, and other pertinent laws, regulations, and executive orders.  Our evaluation will also follow the guidelines published by the United States Environmental Protection Agency pursuant to Section 404(b)(1) of the Clean Water Act (40 CFR part 230).  The decision 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; among those factors 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, information requests, and any public hearing requests should be submitted electronically to Richard Berkes by email at richard.berkes@usace.army.mil.  If you do not have internet access, comments may be submitted thru the U.S. Postal Service (USPS) to the following address:

U.S. Army Corps of Engineers, Huntington District

ATTN: CELRH-RD-E Public Notice No. LRH-2021-334-GUY

502 Eighth Street, Huntington WV 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 thru the USPS should have a post mark date on, or prior to, the close of the comment period listed on page one of this Public Notice.

Please note: 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.  If you have any questions concerning this Public Notice, please contact Richard Berkes of the Energy Resource Branch, at (304) 399-6909, or by email at richard.berkes@usace.army.mil.