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LRH 2018-331-GUY

Published July 22, 2022
Expiration date: 8/22/2022

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. in connection with their proposed Reedy Branch South Surface Mine project.


                           200 George Street, Suite 4

                           Beckley, West Virginia 25801


LOCATION:  As shown on attached SHEET 1, the proposed coal mining project would be located approximately 2.2 miles west of Lillydale, and 2.2 miles north of Clear Fork, in Wyoming County, West Virginia (Latitude 37° 39’ 50”, Longitude -81° 41’ 55”).  On-site streams are tributaries of Reedy Branch of Clear Fork of the upper Guyandotte River, upstream of the R.D. Bailey Lake.  

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA permit to permanently place durable, non-toxic rock material into 6,064 linear feet (LF) of ephemeral and intermittent tributaries of Reedy Branch. The rock material would serve as a rock underdrain for a proposed Hollow Fill 1 part of their 531.58-acre Reedy Branch South Surface Mine.  The project would also excavate through 358 LF of ephemeral streams during mining, using the Area Mining and Contour Mining methods.  In total, the proposed project would impact a total of 6,422 LF of streams located as shown on attached SHEETS 2 and 3.  The proposed discharge of dredged and/or fill material into waters of the U.S. is summarized in Table 1 below.  

TABLE 1-Proposed Discharges of Fill Material Into Waters of the U.S.

Associated With the Reedy Branch South Surface Mine.


Stream Name

Flow Regime

Linear Feet of Fill Impact (LF)

Hollow Fill 1

EPH-2 trib of Reedy Branch


229  LF

Hollow Fill 1

EPH-15 trib of Reedy Branch


376  LF

Hollow Fill 1

EPH-19 trib of Reedy Branch


387  LF

Hollow Fill 1

EPH-20 trib of Reedy Branch


132  LF

Hollow Fill 1

EPH-21 trib of Reedy Branch


393  LF

Hollow Fill 1

EPH-23 trib of Reedy Branch


162  LF

Hollow Fill 1

EPH-26 trib of Reedy Branch


771  LF

Hollow Fill 1

EPH-27 trib of Reedy Branch


584  LF

Hollow Fill 1

INT-2 trib of Reedy Branch


1670  LF

Hollow Fill 1

INT-26 trib of Reedy Branch


1360   LF

Sediment ditch

EPH-17 trib of Reedy Branch


98  LF


EPH-10 trib of Reedy Branch


45  LF


EPH-31 trib of Reedy Branch


50  LF


RB-3 trib of Reedy Branch


85  LF


EPH-9 trib of Reedy Branch


80  LF


6,422 LF


The applicant’s information includes baseline conditions of the streams that would be impacted by fill material, including habitat, pH, conductivity, hydrogeomorphic assessments, and benthic macroinvertebrate survey data. 

The purpose of the proposed project is to maximize recovery of metallurgical and thermal grade coal from the approximately 7.8 million tons of mineable coal within 12 coal seams within the 531.58-acre project area. 

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 proposed project is being evaluated by the West Virginia Department of Environmental Protection (WVDEP) under surface mining permit application S-3011-19 pursuant to the Surface Mining Control and Reclamation Act and the West Virginia Surface Coal Mining and Reclamation Act.  The WVDEP has issued a National Pollution Discharge Elimination System permit WV1030329 for this project.

ALTERNATIVES ANALYSIS:  To identify the least environmentally damaging practicable alternative, the applicant conducted an alternatives analysis (AA) and has submitted the AA copy for review.  The AA includes 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 states there is no practical alternative that would avoid all direct impacts to waters of the U.S. while meeting the overall project purpose.  For each coal seam, the applicant evaluated the practicability of specific mining methods based on the ability to meet all site-specific criteria.  Four of the five coal seams have already been extensively mined.  The applicant determined that a combination of Contour/Auger/Highwall mining would not meet the minimum overburden to coal ratio and/or would not allow recovering coal from thinner seams.  Area mining combined with highwall mining would involve mining through the same length of streams as Area Mining, but thinner seams would not be recoverable.  The applicant determined that the combination Area Mining with Contour Mining is the only practicable method for each of the coal seams and is therefore their preferred (and proposed) mining method.

The mined area would be returned to Approximate Original Contour (AOC).  However, the applicant determined it is not feasible to return all excavated overburden back onto the mined area and therefore the excess overburden must be placed elsewhere.  The applicant evaluated the practicability of four alternative disposal sites based on project-specific criteria (including stability requirements, haulage distance, costs, property control, drainage control, and aquatic impacts).  Sites 1, 2 and 3 together would not provide the required storage volume and would fill 2,878 LF of stream.  The applicant determined that Site 4, located adjacent to the mining area, will accommodate all required storage volume and is the only other practicable disposal site.  To minimize stream impacts, the applicant optimized by expanding upland backstack areas as much as possible while maintaining AOC.  This allowed the applicant to move the toe of 1,000 LF upstream from the initial design location.  The regrade was designed to its limit of available storage capacity.   With this mining method and the site, the applicant completed the project plans (as described above under “Description of Proposed Work”). 

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 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.  Further reduction in project scope would fail to meet project needs.  All excess overburden would be placed into one hollow fill instead of effecting multiple sites.  All drainage and sediment control structures would be located in upland areas.  Further measures to minimize impacts that could occur as a result of the proposed fill material in waters of the U.S. are stated in detail within their SMCRA application and their NPDES permit application 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 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) and contemporaneous reclamation would be used to prevent and minimize the deposition of sediments downstream.  The mining operation would include properly backfilling existing abandoned highwalls, and reclaiming the site to approximate original contour and re-establishing forest cover. 

COMPENSATORY MITIGATION PLAN (CMP):  The applicant used the West Virginia Stream and Wetland Valuation Metric (SWVM) to record baseline stream conditions, calculate impact debits and calculate all mitigation credits required to fully compensate for the permanent, temporary and temporal losses of streams and aquatic functions.  The SWVM calculated a total of 5,198.54 debits for the proposal.  To compensate for the proposed impacts to 6,422 LF of stream, the applicant proposes to acquire 5,198.54 mitigation credits from an approved stream mitigation bank. 

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” has been completed.  The applicant must yet submit the required Section 401 WQC application to the WVDEP for this project.

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 within or adjacent to the proposed Amendment 2 project area.  In a letter dated December 21, 2020 to the WVDEP, the West Virginia State Historical Preservation Officer (SHPO) stated they reviewed the applicant’s then-proposed 488.64-acre mining project.  A search of the SHPO records indicates no previously recorded archaeological resources exist within the proposed project area.  Most of the proposed construction activities would be confined to previously disturbed areas or areas of steep slope, and adjacent to an existing mined area.  It is unlikely that significant intact deposits would be encountered during the proposed mining activity.  Therefore, in the SHPO’s opinion, the project would have no effect on archaeological historic properties, and would have no effect on architectural properties eligible for or included in the National Register of Historic Places.

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).  The project site is not within a known-use area for the Indiana bat, but potentially occupied habitat may exist. A bat protection and enhancement plan is being composed for this project.  No effect on gray bats are anticipated since the project area contains no caves or other such habitat for the gray bat.  Concerning the northern long-eared bat, no known hibernacula or maternity roost trees occur within the action area.  The project area is within a watershed known to support the Guyandotte River crayfish.  Project streams flow to Reedy Branch of Clear Fork, approximately 1.3 miles downstream.  A Guyandotte River crayfish survey was conducted in July 2020 and survey efforts observed several individuals of this species within Clear Fork.  A Guyandotte River crayfish protection and enhancement plan is being composed for this project.

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-RDE Public Notice No. LRH-2018-331-GUY

502 Eighth Street, Huntington WV 25701-2070


Copies will 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.