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LRH-2022-621-GUY

CELRH-RDE
Published Feb. 28, 2023
Expiration date: 3/30/2023

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:        Meredith Atkins

                              Greenbrier Minerals, LLC             

                              100 Bill Baker Way

                              Beckley, West Virginia 25801

LOCATION:  The proposed project would be located near the community of Lorado, in Logan County, West Virginia at latitude 37°.784306 and longitude -816694444.  The proposed Elklick Contour Surface mine activities would occur within the main stem of Elklick Branch and unnamed tributaries, the Left Fork of Elklick Branch and unnamed tributaries, a palustrine emergent (PEM) wetland, and an open water impoundment.  The streams, wetland, and open water impoundment are tributaries of Left Fork of Elklick Branch, which flows into Buffalo Creek, a direct 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 a total of 4,840 linear feet (lf) (0.29 acre) of perennial, intermittent, and ephemeral stream channels, 0.65 acre of a palustrine emergent (PEM) wetland, and 0.71 acre of an open water impoundment as indicated on attached Sheets 3 and 4 and Table 1 and as described below, in conjunction with the construction, operation and reclamation of the Elklick Contour Surface Mine.  The activities would include re-mining of existing pre-SMCRA contour areas via area, contour, and highwall mining methods and construction of a valley fill and haul road as well as mine-through activities.  The construction of the valley fill would result in the permanent discharge of approximately 548 cubic yards of durable, non-toxic fill material into 3,501 lf (0.22 acre) of intermittent and ephemeral streams and 0.65 acre of PEM wetland.  All associated sediment control structures would be on-bench and would not result in the discharge of dredged and/or fill material into waters of the U.S.  The proposal would also include the excavation of 1,039 lf (0.04 acre) of intermittent and ephemeral streams and 0.71 acre of an open water impoundment in conjunction with mine-though activities.  Construction of the haulroad would include the installation of twin 36-inch corrugated metal pipe (CMP) culverts into 73 lf (0.009 acre) of a perennial stream channel and 227 lf (0.02 acre) of an intermittent stream channel.

After the removal of vegetation within the footprint of the valley fill, the toe/foundation of the valley fill would be constructed.  The construction/installation of the terraces would occur from the bottom up with progressive construction of terraces and permanent drainage in increments not to exceed 100 feet.  The outer slope of face of the valley fill would not exceed a vertical slope of 2:1 and would be constructed at a maximum of 50 feet above the toe of the valley fills.  The bench width of each terrace would be no less than 20 feet wide with a 3-5% slope toward the face of the valley fill and would be constructed with 1% slope toward the groin ditch.  All materials placed into the valley fill would be durable rock consisting of a minimum of 80% by volume of sandstone, limestone, and other rock that does not slake in water.  Non-cemented rock, such as clay, shale, etc., would be mixed with durable rock spoil in such a manner as to limit unit concentrations of non-cemented rock.  All fill material would be generated on-site by drilling and blasting of overburden.  As the valley fill is constructed, topsoil or an approved topsoil substitute would be spread over the completed slope and bench areas and seeded/mulched per the re-vegetation plan included in the approved Surface Mining Control and Reclamation Act (SMCRA) permit.  Of the 450.84 acres proposed for the project, approximately 82.3 acres were previously disturbed by pre-SMCRA mining activities.  The re-mining activities at the site would reclaim approximately 82.3 acres and 21,943 lf of un-reclaimed pre-SMCRA highwalls at the site. 

The purpose of the project is to remove approximately 2.6 million tons of bituminous stream coal reserves within the 451-acre 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, exclusive of reclamation, would occur over a period of five (5) 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-5008-22).  Plans of the proposal are attached to this notice (Sheets 3-4).  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 (FOIA). 

ALTERNATIVE ANALYSIS:  Approximately 4,840 lf (0.29 acre) of stream channels, 0.65 acre of a PEM wetland, and 0.71 acre of an open water impoundment are proposed to be permanently 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 FOIA.

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 6,906 lf of perennial, intermittent, and ephemeral stream channels, 0.65 acre of PEM wetland, and 0.71 acre of open water impoundment exist at the site as determined by a Preliminary Jurisdictional Determination dated January 28, 2022.  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 2,106 lf (31%) of streams at the site.  The applicant indicated the entire proposed project footprint and adjacent areas have been previously affected by pre-SMCRA surface mining.  The total project site, which is 450.84 acres in size, includes 82.29 acres of un-reclaimed pre-SMCRA surface mining, which comprises 20% of the project area.  In addition, approximately 21,943 lf of un-reclaimed pre-law highwall exists at the site and is producing large sediment loads within the receiving streams.  The applicant has avoided discharges of dredged and/or fill material into undisturbed watersheds at the site and the streams proposed for impact have been previously affected by the pre-SMCRA mining activities at the site.  Further, the applicant has reduced the footprint of the valley fill by utilizing a side-hill fill for excess overburden storage located on the pre-SMCRA highwall bench outside of jurisdictional waters.  The applicant would also utilize on-bench sediment ponds, which are also located outside of jurisdictional waters.  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 fill 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.  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 anyone (1) 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 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 purchase stream and wetland mitigation bank credits from a federally approved mitigation bank.

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 proposal, including temporal loss, total 3,573.20 debits.  To compensate for the loss of waters of the U.S. as a result of the mining activities, the applicant proposes to purchase 3,573.20 stream credits and 1.36 wetland credits from a federally approved mitigation bank within the primary or secondary watershed.  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 determine the 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 indicated they are in the process of submitting 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 10, 2022, the West Virginia Division of Culture and History (WVDCH) indicated there are no archeological or architectural resources listed or included on the Register within the area of potential effect (APE).  They also indicated that the Spring Home Cemetery (46 LG 239), which is located within the APE for visual effects, would not be adversely affected by the proposal and that no further consultation is necessary regarding cemetery resources.  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), the endangered northern long-eared bat (Myotis septentrionalis), the endangered Guyandotte River Crayfish (Cambarus veteranus) and the tri-colored bat (Perimytosis subflavis), a candidate species.  The applicant prepared a Protection and Enhancement Plan (PEP) for the federally listed Indiana bat and threatened northern long eared bat.  The applicant followed the “Range-wide Indiana bat Protection and Enhancement Plan Guidelines for Surface Coal Mining Operations” (Guidelines). The applicant submitted the PEP to the WVDEP for their review and comment.  In a letter dated November 14, 2022, the WVDEP stated that the PEP includes non-discretionary Reasonable and Prudent Measures to avoid and minimize impacts in the Indiana bat and the northern long-eared bat.  The WVDEP stated winter clearing in the SMCRA permit area must only be conducted between November 15 to March 31.  Since the applicant has chosen to adhere to the timber clearing restrictions, the WVDEP determined the PEP fulfills all requirements, including the Guidelines and the 4(d) Rule, necessary to protect threatened and endangered species.  In reference to the Guyandotte River Crayfish (GCR), WVDEP indicated that since the proposed surface mine is located within the Buffalo Creek watershed, which contains critical habitat for the species, the applicant must conduct a survey within Buffalo Creek downstream of the mine.  In July 2022, the applicant conducted the GRC survey at ten (10) sites over a five (5) mile stretch of Buffalo Creek downstream of the mine site.  No federally listed crayfish were found.  Further, no portion of the project is located within and or immediately downstream of designated critical habitat.  In a letter dated December 1, 2022, WVDEP stated based upon the information provided by the applicant, the proposed activities are not likely to adversely impact the GRC or cause destruction or adverse modification of its critical habitat.  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-2022-621-GUY-Elklick Branch

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

Elklick Contour Surface Mine (S-5008-22)

LRH-2022-621-GUY

Mining Activity

Name of Water of U.S.

Flow Regime

Wetland Type

Linear Foot (lf)

Acreage(ac)

Volume of Discharge

(cubic yard/cy)

Duration of Impact

Haulroad Culvert

Left Fork Elklick Branch (LE)

Perennial

73 lf

0.009 ac

4.36 cy

Permanent

Haulroad Culvert

Left Fork Elklick Branch (LE)

Intermittent

227 lf

0.022 ac

14.2 cy

Permanent

Valley Fill No. 1

Left Fork Elklick Branch (LE)

Intermittent

2266 lf

0.18 ac

118.7 cy

Permanent

Valley Fill No. 1

Left Fork Elklick Branch (LE)

Ephemeral

343 lf

0.01 ac

1.61 cy

Permanent

Valley Fill No.1

UNT Left Fork Elklick Branch (LE-T1)

Intermittent

294 lf

0.007 ac

2.26 cy

Permanent

Valley Fill No. 1

UNT Left Fork Elklick Branch (LE-T2)

Intermittent

567 lf

0.02 ac

5.10 cy

Permanent

Valley Fill No. 1

UNT Left Fork Elklick Branch (LE-T2A)

Intermittent

31 lf

0.001 ac

0.24 cy

Permanent

Valley Fill No. 1

Wetland WL-1

PEM

0.65 ac

420 cy

Permanent

Mine-Through

UNT Left Fork Elklick Branch

(LE-T4)

Ephemeral

55 lf

0.001 ac

0.16 cy

Permanent

Mine-Through

UNT Left Fork Elklick Branch

(LE-T5)

Ephemeral

30 lf

0.001ac

0.24 cy

Permanent

Mine-Through

UNT Elklick Branch

(El-T1)

Ephemeral

145 lf

0.003 ac

0.97 cy

Permanent

Mine-
Through

UNT Elklick Branch

(EL-T1A)

Intermittent

356 lf

0.015 ac

4.84 cy

Permanent

Mine-through

UNT Elklick Branch

(EL-T1B)

Ephemeral

143 lf

0.002 ac

0.42 cy

Permanent

Mine-through

UNT Elklick Branch

(EL-T1C)

Intermittent

145 lf

0.004 ac

1.48 cy

Permanent

Mine-through

UNT Elklick Branch

(El-T2)

Ephemeral

165 lf

0.009 ac

3.34 cy

Permanent

Mine-through

Open Water W-1

 

0.71 ac

573 cy

Permanent

Total Impacts - Haulroad

300 lf/0.03 ac

18.6 cy

 

Total Impacts – Valley Fill No. 1

3,501 lf/0.22 ac

0.65 acre

548 cy

 

Total Impacts - Mine-Through

1,039 lf/0.04 ac

0.71 ac/open water

169.4 cy

 

TOTAL

4,840 lf/0.29 ac

717.4 cy