The below listed documents may not be readable via Optical Character Recognition. To receive public notices via email, please send an email to LRH.Permits@usace.army.mil indicating that you would like to be placed on the public notice electronic distribution list. Your email should also include the state(s) in which you would like to receive public notices.

LRH 2019-406-GUY

Published Nov. 10, 2021
Expiration date: 12/9/2021

TO WHOM IT MAY CONCERN:  The U.S. Army Corps of Engineers (Corps) 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 United States (U.S).  


APPLICANT:  Consol Mining Company, LLC

                          1000 Consol Energy Drive

                          Canonsburg, PA 15317


LOCATION:  The proposed project would result in the discharge of dredged and/or fill material into unnamed tributaries (UNT) of Joe Branch, located upstream of New Richmond, in Wyoming County, West Virginia (Latitude 37° 33’ 14”; Longitude -81° 26’ 42”) as shown on attached SHEET 1.  Joe Branch is a direct tributary to the Guyandotte River, a navigable water of the U.S.  The location of streams proposed to be impacted are shown on attached SHEETS 2 and 3 (all streams delineated within the hashed area). 

DESCRIPTION OF PROPOSED WORK:  The applicant proposes to permanently discharge fill material (non-toxic, durable rock/earthen) into 6,711 linear feet (0.882 acre) of six (6) streams to establish an underdrain system and a surface water conveyance ditch in preparation for an updrain expansion of the existing Joe Branch Coal Refuse Disposal Area, which is associated with the adjacent Itmann Coal Preparation Plant.  The streams to be filled with the fill material are located updrain of the previously filled refuse disposal area and are listed in Table 1 below.  These streams flow into existing drainage ditches along the perimeter of the existing disposal facility to Joe Branch of the Guyandotte River.  The rock underdrains would be wrapped entirely with a filter fabric.  All other project components (including sediment control ponds) would occur in upland areas and on the previously filled disposal area.  The applicant’s project purpose is to construct the facilities necessary to allow for the storage of fine and coarse coal refuse material (to be generated from the adjacent coal preparation plant).



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

The West Virginia Department of Environmental Protection (WVDEP) issued Surface Mining Control and Reclamation Act (SMCRA) permit O-0011-85 (through Incidental Boundary Revision [IBR] 4); and a National Pollutant Discharge Elimination System (NPDES) permit WV0053121 (through Modification 11), with conditions, for the existing facility and the proposed Joe Branch Coal Refuse expansion IBR-4 project to ensure water quality standards are met.  

ALTERNATIVES ANALYSIS:  No permit will be issued unless the applicant clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.  To identify the least environmentally damaging practicable alternative, the applicant conducted an alternatives analysis, submitted with the application for review. 

The applicant evaluated alternative methods for refuse material disposal, including constructing an impounding embankment, slurry cells, underground storage, and deep well storage.  The applicant found these alternatives impracticable due to issues of safety, cost/benefit, storage area, environmental impacts, and the need to store both coarse and fine coal refuse.  The proposed non-impounding combined coal refuse disposal method would allow the material to stabilize quicker as compared to separate fine and coarse disposal sites and would require less total acreage.  Therefore, the applicant chose the proposed method as the only practicable alternative method

The applicant also evaluated three (3) potential sites for refuse material disposal: (1) an adjacent Long Branch site; (2) Workman Branch; and (3) the proposed Joe Branch site (as described above under description of the proposed work).  The applicant rejected the first two (2) sites as impracticable due to the comparatively higher environmental impacts that construction would have, including greater acreage and greater stream and wetland impacts as compared to the applicant’s preferred, Joe Branch site.

The proposed Joe Branch site is located on and updrain of the existing refuse disposal permit O-0011-85, which comprises predominantly prior disturbed areas.  The use of the Joe Branch site would allow a portion of the refuse to be placed on the previously disturbed and SMCRA permitted area. The Joe Branch site would provide sufficient capacity for the anticipated volume of fine and coarse refuse material, meets regulatory requirements for stability and drainage control, is near to the mining operation and would allow re-establishing the associated preparation plant on the site of the former plant (in the adjacent Long Branch watershed).  No permit will be issued until our review of the alternative analysis 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 would be located updrain of an existing coal refuse disposal site, thus avoiding impacts to other watersheds.  

Rock underdrains would consist of durable non-toxic, non-acid producing rock, wrapped with a filter fabric.  All sediment control ponds 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 the applicant’s SMCRA and NPDES permits to ensure water quality standards are met.  These plans and actions include a drainage and sediment control plan, a re-vegetation and reclamation plan, a hydrologic reclamation plan, a material testing and handling plan, a water quality monitoring plan, temporary sediment controls, and other actions specified in the applicant’s NPDES permit. 

COMPENSATORY MITIGATION PLAN (CMP):  The proposed project site is within the primary service area of three (3) approved stream mitigation banks.  The Corps’ Regulatory In-lieu Fee and Bank Information Tracking System indicates that the closest stream mitigation bank footprint area from the project site is located on Buffalo Creek (roughly 27 air miles from the proposed stream impact area).

To compensate for the loss of waters of the United States associated with the proposed project, the applicant proposes to restore 39,000 linear feet of Laurel Branch and its tributaries located within the Laurel Fork of Clear Fork - Guyandotte River HUC-12 watershed, near Sabine in Wyoming County, as shown on attached Sheets 4 and 5A through 5R.  These streams are approximately 7.1 aerial miles north of the proposed Joe Branch project impact site (located within the adjoining Cabin Creek-Guyandotte River HUC-12 watershed). 

The CMP states that the ephemeral and intermittent streams proposed to be restored have been impacted and destabilized by agricultural practices and channelization.  The streams exhibit lack of a riparian vegetative buffer, channelization, incision, lateral migration, mass wasting, excess sheer stress, poor sediment transport, and lack of diversity of features.  Excerpts from the conceptual CMP are provided in the attached Sheets 6A and 6B.

The applicant has entered into an agreement with ECA Acquisitions, LLC (ECA) to design, implement and maintain the mitigation area throughout the required monitoring period.  The proposed mitigation area is on property controlled by ECA, who manages multiple mitigation banks and sites within West Virginia under the name WV Bunrootis Existing Mitigation Holdings LLC. 

The applicant used the West Virginia Stream and Wetland Valuation Metric (SWVM) to assess baseline conditions of the streams proposed to be impacted, and to calculate impact debits.  The SWVM would also be used to calculate mitigation credits that may be generated as a result of the proposed stream improvements.  However, the applicant anticipates the proposed CMP would provide a net 1:1 debit/credit ratio, as shown in CMP Table 3 (included in attached Sheet 6B).

The conceptual CMP is currently under review and is available for public review and open to comment.  The proposed CMP is subject to change based on comments received and the Corps’ independent evaluation.  After review of all the submitted information, the Corps will make a determination of appropriate compensatory mitigation, in the event a decision is made to issue a permit. 

WATER QUALITY CERTIFICATION (WQC):  The applicant must obtain a Section 401 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 on this project until the Section 401 WQC has been issued or waived.  The applicant has submitted a Section 401 WQC application to the WVDEP for this project. 

HISTORIC AND CULTURAL RESOURCES:   The Corps is required by the National Historic Preservation Act (NHPA) to ensure no federal undertaking, including a Corps permit action, which may affect historic resources, is commenced before the impacts of such action are considered and the Advisory Council on Historic Preservation and the State Historic Preservation Office (SHPO) are provided an opportunity to comment as required by the NHPA, 36 CFR 800, and 33 CFR 325, Appendix C.  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 26, 2020 to the WVDEP, the West Virginia State Historical Preservation Officer (SHPO) stated (FR#20-1191-WM) their opinion that the proposed IBR-4 project would have no effect on archaeological resources or architectural properties eligible for or included in the NRHP.  This Public Notice serves as coordination of this determination with the SHPO, pursuant to Section 106 of the National Historic Preservation Act of 1966.  Comments concerning archaeological sensitivity of the project area should be based on collected data.  No DA permit will be issued until all obligations under Section 106 of the NHPA of 1966 have been fulfilled.   

ENDANGERED AND 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) and Indiana bat (Myotis sodalis), the threatened northern long-eared bat (Myotis septentrionalis), and the Guyandotte River crayfish (Cambarus veteranus).

By letter dated January 22, 2020, the WVDEP advised of their review of the potential effects of the IBR-4 activity on federally listed species.  Concerning bat species, the WVDEP stated the entirety of the O-0011-85 IBR-4 area (35.3 acres) is forested with trees greater than five (5) inches in diameter.  A winter habitat survey conducted in September and October 2019 found one (1) portal located on an adjacent mine permit, during which time no bats were captured.  Crayfish surveys within the Guyandotte River conducted in May and June 2019 for the proposed IBR-4 project captured no Guyandotte River crayfish.  In a letter dated November 13, 2019, the USFWS concluded: “Based upon results of this survey, no Guyandotte River crayfish are expected to be affected by the project and no biological assessments or further Section 7 consultation under the ESA is required with the Service.”   The WVDEP concluded that no federally listed endangered and threatened species are expected to be impacted by the proposed project, and that the project would not jeopardize the continued existence of any federally listed species.

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 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 Corps’ Regulatory Program, and other pertinent laws, regulations, and executive orders.  Our evaluation will also follow the guidelines published by the U.S. 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 pertaining to this Public Notice must reach this office on or before the close of the comment period listed on page one (1) of this Public Notice.  If no comments are received by that date, it will be considered that there are no objections.  Comments should be submitted electronically to Richard Berkes at richard.berkes@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 No. LRH-2021-334-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 thru the USPS should have a post mark 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 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.