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LRH 2019-926-GUY

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

,

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 2.4 miles northwest of the community of Kopperston, in Wyoming County, West Virginia at latitude 37°46’33” and longitude -81°35’42”.  The proposed surface mine would be constructed in Huff Creek and unnamed tributaries and Bear Spring Branch.  Huff Creek is a tributary of the Guyandotte 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 11,537 linear feet (1.28 acres) of waters of the U.S., as indicated on the attached Sheets 2-8 and Table 1 and as described below, in conjunction with the construction, operation and reclamation of the Guyandotte No. 1 Surface Mine. 

Valley Fill No. 1, Sediment Ponds No. 1 and 1A, and Stream Crossing No. 1 – Left UNT B of Huff Creek:  The construction of Valley Fill No. 1 and its associated durable rock underdrain would result in the discharge of approximately 44.0 cubic yards of non-toxic, durable rock fill material into 500 linear feet (0.04 acre) of one (1) intermittent stream channel.  Mine-through activities would be conducted within the footprint of the valley fill concurrent with construction of the fill.  The mine-through activities stream length are totaled within the valley fill stream totals. The construction of Sediment Pond No. 1 and 1A, which would be located below the toe of Valley Fill No. 1, would result in the temporary discharge of approximately 31.3 cubic yards of clean earthen and rock fill material into 525 linear feet (0.05 acre) into one (1) intermittent stream channel in conjunction with the construction of the embankment structure for the ponds.  The construction of Stream Crossing No. 1 would result in the discharge of approximately 1.7 cubic yards of one (1) 42-inch corrugated metal pipe (CMP) into 33 linear feet (0.004 acre) of one (1) intermittent stream channel. 

Valley Fill No. 2, Sediment Pond No. 2 and 2A, and Stream Crossing No. 3 – Huff Creek: The construction of Valley Fill No. 2 and its associated durable rock underdrain would result in the discharge of approximately 134.9 cubic yards of non-toxic, durable rock fill material into 2,264 linear feet (0.24 acre) of one (1) intermittent stream channel. Mine-through activities would be conducted within the footprint of the valley fill concurrent with construction of the fill.  The mine-through activities stream length are included within the valley fill stream totals. The construction of Sediment Pond No. 2 and 2A, which would be located below the toe of Valley Fill No. 2, would result in the temporary discharge of approximately 53.1 cubic yards of clean earthen and rock fill material into 831 linear feet (0.12 acre) into one (1) intermittent stream channel (Huff Creek)  in conjunction with the construction of the embankment structure for the pond.  The construction of Stream Crossing No. 3 would result in the discharge of approximately 1.7 cubic yards of one (1) 42-inch CMP in 25 linear feet (0.003 acre) of intermittent UNT C of Huff Creek. 

Valley Fill No. 3, Sediment Ponds No. 3 and 3A, and Stream Crossing No. 2 – Bear Spring Run:  The construction of Valley Fill No. 3 and its associated durable rock underdrain would result in the discharge of approximately 346.7 cubic yards of non-toxic, durable rock fill material into 5,940 linear feet (0.32 acre) of one (1) intermittent stream channel.  Mine-through activities would be conducted within the footprint of the valley fill concurrent with construction of the fill.  The mine-through activities stream length are included within the valley fill stream totals. The construction of Sediment Pond No. 3 and 3A, which would be located below the toe of Valley Fill No. 2, would result in the temporary discharge of approximately 108.0 cubic yards of clean earthen and rock fill material into 1,382 linear feet (0.18 acre) of one (1) intermittent stream channel.  The construction of Stream Crossing No. 2 would result in the discharge of approximately 2.1 cubic yards of eight (8) parallel 42-inch CMP pipes into 37 linear feet (0.01 acre) of intermittent stream channel. 

The purpose of the project is to remove approximately 14.3 million tons of bituminous metallurgical coal reserves within the 706-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 ten (10) 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-5001-21).  Plans of the proposal are attached to this notice (Sheets 1-8).  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 11,537 linear feet of intermittent streams 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.

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 22,923 linear feet of intermittent stream channels exist at the site as determined by an Approved Jurisdictional Determination dated March 9, 2020.  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 approximately 11,386 linear feet (50%) of intermittent streams at the site. The original surface mine alternative would have affected approximately 67,800 linear feet of jurisdictional stream channels.  The applicant has significantly re-designed the mine plan to reduce the acreage of the site, excessive valley fills, and discharges of dredged or fill material into waters of the U.S.  The proposed valley fills would 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 ponds and road crossings would be re-established using natural stream channel design techniques and the areas 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 dredged or fill material into waters of the U.S.  The applicant proposes to re-establish approximately 2,833 linear feet of intermittent stream channels at the sites of the sediment ponds and road crossings as described below (See attached Sheets 66-8 and Tables 2 and 3) and purchase stream mitigation credits from a Corps-approved mitigation bank within the Guyandotte River watershed (HUC 05070101). 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 11,193.5.   The applicant’s proposed on-site stream mitigation work is predicted to produce 3,150.5 mitigation credits.   The remaining deficit – 8,043.0 debits, would be purchased in 39 equal quarterly installments of 201.10 stream credits and a final installment of 200.09 credits.

Stream Re-establishment (Huff Creek, Left UNT B of Huff Creek, Left UNT C of Huff Creek and Bear Spring Branch):  Upon completion of the mining, reclamation, and removal of the Pond No. 1 and A1, Pond No. 2 and No. 2A, Pond No. 3 and 3A and the three road crossings, the applicant would re-establish a total of 2,833 linear feet of four (4) intermittent stream channels and associated riparian buffers.  The streams would be designed to Rosgen Type-A high gradient streams. 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 streams would be re-established using natural stream channel design technique including a two-stage channel (with a 100-year, 24-hour storm flow capacity), substrate restoration, bank stabilization, the installation of in-stream habitat features, and the establishment of a 50-foot riparian buffer, extending 25-feet from the top of each stream bank at the stream crossing sites and a 300-foot riparian buffer, extending 150-feet from the top of each stream bank at the pond stream restoration sites (where space allows).  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. 

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.  The applicant would also provide a performance bond for the on-site mitigation.

Stream Mitigation Bank:  To mitigate for the loss of the permanent loss of 8,704 linear feet of intermittent stream channels, the applicant would purchase 8,043.0 stream mitigation credits from a Corps approved mitigation bank located within the primary or secondary service area covering the Guyandotte River watershed (HUC 05070101). The applicant proposes to spread the acquisition/transfer of the required number of stream mitigation bank credits over the 10-year life of the project via credit transfers in approximately equal quarterly installments.   The first installment would occur a minimum of 30 days prior to the initiation of discharges into waters of the U.S. associated with Phase I.  Subsequent installments would be made quarterly until such time as all required stream mitigation bank credits have been transferred to the Corps.  Additional temporal losses have been factored into the credit/debit calculation to account for the proposed “installment” use of the bank credits.  The temporal loss calculations have been based upon the timing of incremental project impacts and area calculated at the equivalent of 3% per year.

The applicant is also proposing to provide an additional mitigation performance bond which would ensure the purchase and tendering of stream mitigation bank credits in accordance with the quarterly mitigation credit installment schedule. The applicant would cause the penal amount of the performance bond to be adjusted each year to reflect the highest stream mitigation bank credit deficit (if any) expected in the upcoming year, multiplied by an assumed bank credit purchase price of $800 per credit.

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.   

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 April 28, 2020 to the WVDEP, the West Virginia Division of Culture and History (WVDCH) requested a Phase I Archaeological Survey for the site.  They also stated there are no known architectural properties eligible for or listed on the NRHP at the site.  The results of the Phase I Survey would be coordinated with WVDCH and WVDEP prior to the issuance of any permit for this 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 mist net survey in the project area between July-August 2020.  The survey stated no Indiana bats nor northern long-eared bast were captured during the survey.  In a letter dated September 9, 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 U.S. Fish and Wildlife Service 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-2019-926-GUY

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

Guyandotte No. 1 Surface Mine (S-5001-21)

LRH-2019-926-GUY

Mining Activity

Name of Water of U.S.

Flow Regime

Length (linear feet [lf])/Acreage (acres)

Volume of Discharge (cubic yards [cy])

Duration of Impact

Valley Fill No. 1

Left UNT B of Huff Creek

Intermittent

500 lf

0.04 acre

44.0 cy

Permanent

Sediment Pond No. 1 &1A

Left UNT B of Huff Creek

Intermittent

525 lf

0.05 acre

31.3 cy

Temporary

Stream Crossing No. 1

Left UNT B of Huff Creek

Intermittent

33 lf

0.004 acre

2.1 cy

Temporary

Valley Fill No. 2 & Mine-Through Area

Huff Creek

Intermittent

500 lf

0.04 acre

134.9 cy

Permanent

Sediment Pond No. 2 & 2A

Huff Creek

Intermittent

831 lf

0.12 acre

53.1 cy

Temporary

Stream Crossing No. 3

Left UNT C of Huff Creek

Intermittent

25 lf

0.003 acre

1.7 cy

Temporary

Valley Fill No. 3 & Mine-Through Area

Bear Spring Branch

Intermittent

5,940 acre

0.63 acre

346.7 cy

Permanent

Stream Crossing No. 2

Huff Creek

Intermittent

37 lf

0.12 acre

8.0 cy

Temporary

Total Permanent Discharges

8,704 lf

0.90 acre

526 cy

 

Total Temporary Discharges

2,833 lf

0.37 acre

96.2 cy

 

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

11,537 lf

1.27 acre

622.2 cy

 

                    

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table 2 – Proposed Compensatory Mitigation for Temporary Impacts

Guyandotte No. 1 Surface Mine (S-5001-21)

LRH-2019-926-GUY

On-Site Stream Re-establishment

 

Mitigation Channel Name

Linear Feet (lf)

Predicted Flow Regime

Riparian Buffer Width (feet)

Mitigation Type

Huff Creek

(1+37 to 1+00)

37 lf

Intermittent

 

~25 feet top of each bank

Post-Project On-site Stream Re-establishment

Stream Crossing No. 2

Huff Creek

(29+05 to 37+36)

831 lf

Intermittent

~150 feet top of each bank

Post-Project On-Site Stream Re-establishment Ponds 2 & 2A

Left UNT B of Huff Creek

(2+51 to 2+85)

33 lf

Intermittent

~25 feet top of each bank

Post-Project On-Site Stream Establishment Stream Crossing No. 1

Left UNT B of Huff Creek

(9+75 to 15+00)

525 lf

Intermittent

~150 feet top of each bank

Post-Project Stream Re-establishment

Ponds 1 & 1A

Left UNT C of Huff Creek

(0+74 to 0+99)

25 lf

Intermittent

~25 feet top of each bank

Post-Project On-site Re-establishment

Stream Crossing No. 3

Bear Spring Branch

(7+58 to 21+40)

1,382 lf

Intermittent

~150 feet to of each bank

Post-Project On-site Re-establishment

Ponds 3 & 3A

Total Proposed Stream Mitigation

2,833 lf

 

 

 

Table 3 – Proposed Compensatory Mitigation for Permanent Impacts

Guyandotte No. 1 Surface Mine (S-5001-21)

LRH-2019-926-GUY

Mitigation Bank Credit Acquisition/Transfer

 

Stream Mitigation Bank Credits

Project Year

Mitigation Type

Net Credits to be Acquired/Transferred by Quarter and Project Year

Quarter 1

Quarter 2

Quarter 3

Quarter 4

Net Credits

Project Year 0 – Credit Transfers 1 & 2 made 30 days prior to impacts to waters of U.S.

Year 0

 

 

 

Stream Mitigation Bank Credits – Service Area Covering the Guyadotte River Watershed

 

 

--

 

 

--

 

 

201.10

 

 

201.10

 

 

402.29

Credit Transfer No. 3-6 made every 3 months after initiation of impacts to waters of U.S.

Year 1

 

 

201.10

 

 

201.10

 

 

201.10

 

 

201.10

 

 

804.40

Credit Transfer No. 7-10 made every 3 months after initiation of impacts to waters of U.S.

Year 2

 

201.10

 

201.10

 

201.10

 

201.10

 

804.40

Credit Transfer No. 11-14 made every 3 months after initiation of impacts to waters of U.S.

Year 3

 

 

201.10

 

 

201.10

 

 

201.10

 

 

201.10

 

 

804.20

Credit Transfer No. 15-18 made every 3 months after initiation of impacts to waters of U.S.

Year 4

 

 

201.10

 

 

201.10

 

 

201.10

 

 

201.10

 

 

804.20

Credit Transfer No. 19-22 made every 3 months after initiation of impacts to waters of U.S.

Year 5

 

 

201.10

 

 

201.10

 

 

201.10

 

 

201.10

 

 

804.20

Credit Transfer No. 23-26 made every 3 months after initiation of impacts to waters of U.S.

Year 6

 

 

201.10

 

 

201.10

 

 

201.10

 

 

201.10

 

 

804.20

Credit Transfer No. 27-30 made every 3 months after initiation of impacts to waters of U.S.

Year 8

 

 

201.10

 

 

201.10

 

 

201.10

 

 

201.10

 

 

804.20

 

Credit Transfer No. 31-34 made every 3 months after initiation of impacts to waters of U.S.

Year 9

 

 

201.10

 

 

201.10

 

 

201.10

 

 

201.10

 

 

804.20

Credit Transfer No. 39-40 made every 3 months after initiation of impacts to waters of U.S.

Year 10

 

 

201.10

 

 

209.09

 

 

--

 

 

--

 

 

401.19

Total Proposed Stream Mitigation Bank Credits

8,043.0