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LRH-2011-73-GUY

Published June 29, 2012
Expiration date: 7/30/2012

PUBLIC NOTICE: The purpose of this public notice is to inform you ofa proposal for work in which you might be interested. It is also to solicit your comments and information to better enable us to make a reasonable decision on factors affecting the public interest. We Qope you will participate in this process.

REGULATORY PROGRAM: Since its early history, the United States Army Corps of Engineers (Corps) has played an important role in the development of the nation's water resources. Originally, this involved construction of harbor fortifications and coastal defenses. Later duties included the improvement of waterways to provide avenues of commerce. An important part of our mission today is the protection of the nation's waterways through the administration of the Corps' Regulatory Program.

SECTION 10: The Corps is directed by Congress under Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) to regulate all work or structures in or affecting the course, condition or capacity of navigable waters of the United States (U.S.). The intent of this law is to protect the navigable capacity of waters important to interstate commerce.

SECTION 404: The Corps is directed by Congress under Section 404 ofthe Clean Water Act (33 USC 1344) to regulate the discharge of dredged and fill material into all waters of the U.S., including wetlands. The intent ofthe law is to protect the nation's waters from the indiscriminate discharge of material capable of causing pollution and to restore and maintain their chemical, physical and biological integrity.

TO WHOM IT MAY CONCERN: The following application has been submitted for a Department of the Army Permit under the provisions of Section 404 of the Clean Water Act. A copy of the application including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.) is available for review in the Huntington District Office, by appointment. The application is for the discharge offill material into waters of the U.S. in conjunction with the construction, operation and reclamation ofthe Eagle No. 1 Mine (U-50 13-11), which is currently being reviewed by the West Virginia Department of Environmental Protection (WVDEP) pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The Section 402 National Pollution Discharge Elimination System application (WV1025139) is currently being review by the WVDEP.

APPLICANT: Cliffs Logan County Coal, LLC

P.O. Box 446

Man, West Virginia 25635

LOCATION: The proposed project is located approximately 2.0 miles northwest of Cyclone, in Wyoming County, West Virginia. The project can be found near latitude 37°44'53" and longitude       81 °43' 12". The proposed project would be constructed in an unnamed tributary (UT) of Toney Fork. Toney Fork is a tributary of Huff Creek, a direct tributary to the Guyandotte River, a Section 10 navigable water. See project Location Map in Exhibit 1.

DESCRIPTION OF THE PROPOSED WORK: The proposed discharge offill material into waters of the U.S. is associated with the proposed 17.22 acre Eagle No.1 Mine. The applicant is requesting authorization to discharge fill material into three jurisdictional stream channels (waters of the U.S.) in conjunction with the construction of a deep mine face-up, one temporary valley fill, and one in-stream sediment pond. The applicant's proposed project would include the excavation of a deep mine face-up of the hill side to provide entry into the deep mine. The material generated from the excavation activities would be placed within a temporary valley fill. The temporary valley fill would create a level area to operate and stage the deep mine, with a bathhouse, mine office, conveyor belt, parking area, and associated facilities. The temporary valley fill would be removed and used for reclamation of the deep mine face-up after approximately thirteen years. The impacted streams would be re-established. See the Stream Delineation Map in Exhibit 2, the Site Plan in Exhibit 3, and Cross Sections in Exhibit 4. The applicant provided the following information concerning the approximate length in linear feet and volume in cubic yards of the discharges of fill material into waters ofthe U.S. for each project component.

1. Temporary Valley Fill 1 - The construction of this feature would result in the temporary discharge of 61 cubic yards offill material into 1,050 linear feet ofTF1, a perennial stream.

2. Sediment Pond 1 - The construction of this feature would result in the temporary discharge of 20 cubic yards offill material into 358 linear feet of TF1, a perennial stream.

3. The Deep Mine Face-Up - The construction ofthis feature would result in the discharge of 2 cubic yards offill material through the excavation of the stream channel below the ordinary high water mark into 300 linear of TR-1-T1, an ephemeral stream.

4. The Deep Mine Face-Up - The construction ofthis feature would result in the discharge of 1 cubic yard of fill material through the excavation of the stream channel below the ordinary high water mark into 240 linear feet of TR-I-T2, an ephemeral stream.

The construction of the face-up would discharge 3 cubic yards offill material into 540 linear feet of ephemeral stream. The construction of the temporary valley fill and sediment pond would discharge 81 cubic yards of fill material into 1,408 linear feet perennial stream.

An 84-inch culvert would be placed within the perennial stream channel to convey water upstream of the temporary valley fill through the culvert and into a diversion ditch. The diversion ditch would route the water around the sediment pond and back into TFI until reclamation of the face-up and removal of the temporary valley fill. Once the temporary valley fill is removed, TFI will flow in its original location and into the sediment pond. The sediment pond was designed to provide erosion and sediment control per WVDEP mining and reclamation regulations for the active mine and after the face-up reclamation. The sediment pond would be removed when full bond release is obtained from WVDEP. At that time, the stream channel would be re-established to the original contour and configuration, to the maximum extent practicable. The applicant has indicated they would not seek mitigation credits for the re-establishment activities to compensate for this project's proposed debits.

ALTERNATIVE ANALYSIS: The applicant's stated basic project purpose is coal removal. This project is not water dependent; therefore, the applicant is required to show that other less damaging practicable alternatives, which do not require the placement offill material into waters of the U.S., are not available that would achieve the overall project purpose. 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 evaluated four mining method alternatives for this project: surface contour mining, contour/auger/highwall mining, mountaintop mining, and underground mining. The applicant indicated underground mining is the only mining method alternative that is practicable. The applicant also evaluated three alternatives for placement of the overburden material: off-site fill placement to non-permitted areas, off-site fill placement to permitted areas, and valley fill location selection alternative. The applicant indicated that off-site fill placement to non-permitted or permitted areas were not practicable alternatives. To evaluate valley fill location selection alternatives, three potential fill sites were analyzed with approximate original contour and fill optimization processes. The applicant indicated the proposed on-site placement of excess overburden material into a temporary valley fill is the only practicable alternative. Therefore, the applicant stated the preferred alternative as proposed by this application is the least environmentally damaging practicable alternative. The applicant's alternatives analysis is currently under review, and is available for public review.

AVOIDANCE AND MINIMIZATION: The applicant indicated the proposed project cannot be located in an area that would avoid all discharges offill material into waters of the U.S. The applicant stated the mine plan or developmental sequence was designed to avoid or minimize the discharge of fill material into waters of the U.S, to the extent practicable, while meeting the stated project purpose. The preferred alternative would not require permanent construction of a valley fill or sediment pond in waters of the U.S. After mining and reclamation, the stream channels would be re-established and the area would be returned to a post-mining land use of forestland, with the exception of 1.24 acres to remain as an access road to an existing gas well.

COMPENSATORY MITIGATION PLAN (CMP): The applicant has submitted a CMP to compensate for unavoidable discharges offill material into waters ofthe u.s. after avoidance and minimization ofthe discharges were considered. The applicant proposed to re-establish 1,392 linear feet of streams previously impacted by pre-law mining. The applicant identified a hollow in the Elklick Branch of the Buffalo Creek watershed, a direct tributary to the Guyandotte River, which contains aquatic resources that are disconnected from the tributary system due to historical disturbances. The hollow is approximately 3.5 miles north of the proposed deep mine face-up near latitude 37°48'6.5" and longitude 81 °41 '50.8". The hollow has an intermittent source of water, but due to an unreclaimed highwall and bench, and 'shoot and shove' overburden material, an intermittent stream channel does not connect to the tributary system. The applicant proposes to remove barriers to flow and re-establish a natural, fully functional tributary in its approximate original location. Re-establishment work would primarily consist of excavation, fill, channel and bank stabilization, and riparian planting. See Impact and Mitigation Site Locations map in Exhibit 5 and proposed compensatory mitigation maps in Exhibit 6, 7, and 8.

The applicant prepared the CMP using current functional assessment data and used the West Virginia Stream and Wetland Valuation Metric (SWVM) to assess and correlate the baseline conditions of the proposed areas impacted by the discharge offill material into waters of the U.S. with the proposed compensatory mitigation. Physical, chemical and biological parameters were considered by the applicant to demonstrate the CMP mitigates for the discharge offill material into waters of the U.S. As part of our evaluation, the Corps will review the applicant's SWVM sheets for accuracy.

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: An individual Section 401 Water Quality Certification (WQC) is required for this project. The applicant's WQC is currently pending (WV 1025139) with the WVDEP.

HISTORIC AND CULTURAL RESOURCES: This project must be reviewed to determine any potential effects to properties that may be eligible for or listed in the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act. The application package included a letter dated April 15,2011 from the West Virginia Division of Culture and History (WVDCH). This letter stated no archaeological or architectural resources that are listed or eligible for listing in the NRHP will be impacted by this project and no further consultation regarding archaeological or architectural resources was necessary for the proposed project site.

Based on the WVDCH's determination that no archaeological or architectural resources that are listed or eligible for listing in the NRHP will be impacted by this project, the Huntington District has determined that the proposed project would have no effect on historical properties. Section 106 requirements have been met.

ENDANGERED/THREATENED SPECIES REVIEW: This public notice will serve as coordination with the U.S. Fish and Wildlife Service (USFWS) concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act of 1972 (as amended). This project was reviewed by the WVDEP pursuant to the 1996 Biological Opinion and Conferenced Report between the U.S. Office of Surface Mining and the USFWS. By letter dated September 19,2011, the WVDEP concluded the project is not expected to impact federally-listed threatened and endangered species, and therefore the proposed project is not likely to adversely affect federally listed species. The Huntington District has determined Section 7 requirements have been met.

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. 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.

The project lies within the Huff Creek (050701010504) l2-digit hydrologic unit code watershed. The Corps is assessing the potential cumulative effects that the proposed stream impacts from the discharge offill material into waters of the U.S. may have on public interest factors when consideredwith other activities in that watershed. The assessment includes use ofthe Corps analytic tool, Cumulative Effects Analysis Prototype for LRD Regulatory Districts. The tool uses available State and Federal data for each 12-digit hydrologic unit code watershed to analyze past and present activities that may currently be affecting streams.

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. Interested parties are invited to state any objections they may have to the proposed work. 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 ofthe reasons for support or opposition. Any person who has an interest that may be adversely affected by the issuance of a permit may request a public hearing. The request must be submitted in writing to the District Engineer on or before the expiration date of this notice and must clearly set forth the interest which may be adversely affected and the manner in which the interest may be adversely affected by the activity. 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 ofthe comment period listed at the beginning of this Public Notice. If no comments are received by that date, it will be considered that there are no objections.

Comments and requests for additional information should be submitted to:

U. S. Army Corps of Engineers

ATTN: CELRH-RD-E Public Notice: LRH-2011-73-GUY

502 Eighth Street

Huntington, West Virginia 25701-2070

Please note that names and addresses of those who submit comments in response to this public notice become part of our administrative record, and, as such, are available to the public under provisions ofthe Freedom ofInformation Act. Thank you for your interest in our nation's water resources. If you have any questions concerning this public notice, please call Jacob Siegrist of the Energy Resource Branch at (513) 825-4489.

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