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LRH-2008-72-BCR

Published June 1, 2012
Expiration date: 7/2/2012
PUBLIC NOTICE: The purpose of this public notice is to inform you of a 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 hope you will participate in this process.

REGULATORY PROGRAM: Since its early history, the U.S. 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.

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.

The Corps is directed by Congress under Section 404 of the 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 of the 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: An application has been submitted to the Corps as a request for a permit, under the provisions of Section 404 of the Clean Water Act, for the proposed discharge of fill material into waters of the U.S., as described below.

APPLICANT: Coyote Coal Company LLC

Coyote Coal Company LLC

P.O. Box 1060

Danville, WV 25053

LOCATION: The project would impact Brushy Fork and three unnamed tributaries of Perry Fork, in the Guyandotte River watershed. The project is located at latitude 370 49' 52", Longitude 81 0 46' 53", just south of Kelly,.Logan County, West Virginia See attached location map (Exhibit 1).

DESCRIPTION OF THE PROPOSED WORK: Refer to attached 6. The applicant proposes the direct placement of fill material into a total of 1,721 linear feet of streams, and indirect (secondary) impacts to 1,141 feet of stream, in conjunction with the Stanley Fork Deep Mine project (approved under Surface Mining Control and Reclamation Act - Permit No. U-5015-07).

The project would involve mining coal from one seam by underground method. This would require constructing an access/haul road into the site. Road construction would impact an estimated 400 feet of two ephemeral streams. Based on site topography and location of the coal seam with respect to local drainage, accessing the coal seam requires a surface cut on one side of the narrow hollow. Material excavated from the cut would be placed in Fill No.1, which would impact a total of 789 linear feet of intermittent stream. However, Fill No.1 would also serve for constructing an operations area necessary for equipment, coal handling, mine facilities and drainage structures. Upstream drainage would be diverted around the project area through a constructed diversion ditch. This "clean water diversion" would be constructed along the perimeter of the fill area, would run parallel to the existing stream (between the fill and the sediment pond), then around (and bypassing) the sediment pond.

An in-stream sediment control pond would be constructed approximately 1,200 feet downdrain from the toe of the temporary fill, temporarily impacting 391 feet of intermittent stream and 100 feet of ephemeral stream. Secondary (indirect) impacts would occur in 1,200 feet of stream (from the toe of the fill to the sediment control pond). After the anticipated 5-year life of the mine and 2-year reclamation phase, the proposed stream fills would be removed and the stream channels reconstructed as part of mine reclamation. Exhibit 4 summarizes proposed stream impacts and baseline habitat assessments.

The applicant's Section 404 permit application (including the compensatory mitigation plan) is available for public review in the Corps' Regulatory office, by appointment. A copy of the application can also be obtained by written request under the Freedom of Information Act.

The West Virginia Department of Environmental Protection (WVDEP) has issued surface mining permit S-5006-08 for the proposed project, pursuant to the Surface Mining Control and Reclamation Act of 1977. Complete details regarding the mining operation are found in the applicant's mining permit on file with the WVDEP.

ALTERNATIVES ANALYSIS: The applicant's stated overall project purpose is to develop and mine  coal reserves in the Winifrede coal seam, within the identified project area. This project is not water dependent; therefore, the applicant is required to show that other less damaging practicable alternatives, which do not require placing fill material into waters of the U.S., are available. The applicant's alternatives analysis is currently being reviewed. 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's alternative analysis is summarized below.

The applicant considered alternative mining methods for mining in the target seam. Neither contour mining, highwall mining, area mining, or a combination thereof, are practicable alternative methods. Underground mining was chosen as the only practicable method. The applicant also considered alternative locations for the deep mine portal site. Criteria used in determining the portal site were: (a) where the coal seam outcrop is near drainage (to minimize stream impacts during construction of the portal and operations area); and (b) where the coal seam is sloped downward from the portal (allowing preferred down-dip mining to avoid gravity discharge from the portal). Two other locations (Sweet Fork and Stanley Fork) were considered. However, only the proposed location satisfied both criteria. The functionality of the facility is dependent on creating an operations area for stockpiling/loading, equipment access, traffic, ventilation, electrical, and sediment control. Without using fill material to create an operational area, the site would be too small to practicably use as an operations area.

MINIMIZATION OF IMPACTS TO WATERS OF THE U.S.: To minimize unavoidable impacts on waters of the U.S, the applicant considered three site configurations for the road and operations area. The first design placed the access road south of the stream, with an additional staging site south of the temporary valley fill (which would have impacted Perry Fork). The second design placed the haul road north of the stream and excluded the additional staging area. This reduced stream impacts to Perry Fork by almost 1,500 feet, but sections of stream would still require relocating along the path of the road fill area. In the final design (as proposed), the haul road fill placement parallels the existing stream without impeding the stream's natural channel, which further reduces stream impacts by 856 feet.

COMPENSATORY MITIGATION PLAN (CMP): The applicant used the West Virginia Stream and Wetland Valuation Metric, among other measures to assess and record each stream's existing and anticipated (post-project) physical, biological, chemical and functional conditions, and as a method to determine an appropriate level of mitigation to compensate for stream impacts. The applicant has submitted a CMP to compensate for the proposed impacts to waters of the U.S. The CMP is available or public review at the Corps address above, by appointment. Upon completion of site reclamation, the

applicant proposes to (a) restore all length of streams directly and indirectly impacted, and (b)enhancement of 1,000 feet of stream immediately upstream of the deep mine site (and restored stream). The attached Exhibit 5 shows the location of all compensatory mitigation streams. Impacted streams would be restored to the approximate pre-project location and cross-sectional dimensions, but would be modified as necessary, using natural stream design techniques, to ensure the reconstructed streams obtain the appropriate stable hydro-geomorphic configuration for its setting. Each stream would be returned, as close as practicable, to its original pattern, profile and substrate composition. (included in the CMP). Restoration would include reconstruction of meanders, step structures and riffles (using shot rock), installing cross vanes to create pools and maintain grade control and stability, and installing eddy rocks and habitat structures. Riparian vegetation would be planted along each restored stream (50 feet on each side of the channel). The applicant expects the in-stream structures would improve habitat by creating stable epifaunal substrate, reduce embeddedness, increase velocity-depth regimes, decrease sediment deposition, increase channel flow status, increase riffle habitat, stabilize banks and allow more vegetation to grow alongside the stream. Bank protection measures, including both instream structures such as root-wads, and bank treatments such as riprap and vegetation, would be used in areas requiring erosion control. Stream enhancements for the tributary of Perry Fork would involve creating step pools, improving bank stability, and improving vegetative cover. Methods to accomplish this would include installing log vanes, log seals, J-Hooks and root wads. The location of proposed stream restoration and enhancement areas is shown in Exhibit 5. The applicant proposes success criteria/standards as shown in Exhibit 6. The applicant would monitor the stream restoration and enhancement areas for a minimum of five years. As part of the CMP, the applicant proposes to protect the restored and enhanced streams through deed restrictions on the property to prohibit activities that would adversely affect the intended function of the mitigation areas.

The applicant's proposed CMP is open to comment and is subject to change based on comments received. After review of all 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 (WQC):  An individual Section 401 Water Quality Certification is required for this project. It is the applicant's responsibility to obtain certification from the West Virginia Department of Environmental Protection. The applicant's WQC is currently pending (WV1023187) with the WVDEP.

HISTORIC AND CULTURAL RESOURCES: This public notice serves as coordination with the State  Historic Preservation Officer (SHPO) concerning any 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 proposed project was reviewed by the SHPO. By letters dated November 19, 2007 and August 7, 2008, the SHPO concluded there are no archaeological sites in the proposed deep mine project that are eligible for or listed in the national register of historic places (NRHP) and that no architectural resources eligible for or included in the NRHP would be impacted by the project. The Corps reviewed the current State NRHP listing and found no listed properties in the project vicinity. The Corps has determined Section 106 requirements have been met. If the SHPO has new information and believes any potential effects to listed or eligible properties would be attributable to the Corps' proposed permitting action, it is requested the SHPO provide any additional information they may have.

This public notice serves as coordination with the State  Historic Preservation Officer (SHPO) concerning any 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 proposed project was reviewed by the SHPO. By letters dated November 19, 2007 and August 7, 2008, the SHPO concluded there are no archaeological sites in the proposed deep mine project that are eligible for or listed in the national register of historic places (NRHP) and that no architectural resources eligible for or included in the NRHP would be impacted by the project. The Corps reviewed the current State NRHP listing and found no listed properties in the project vicinity. The Corps has determined Section 106 requirements have been met. If the SHPO has new information and believes any potential effects to listed or eligible properties would be attributable to the Corps' proposed permitting action, it is requested the SHPO provide any additional information they may have.

ENDANGERED/THREATENED SPECIES REVIEW: This public notice serves 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). The proposed project lies within the natural range of the endangered Indiana bat (Myotis sodalis). This project has been reviewed by WVDEP pursuant to the 1996 Biological Opinion agreement between USFWS and U.S. Office of Surface Mining. By letter dated February 7, 2008, the WVDEP stated the project is under the 40-acre forested threshold and will not require surveys for summer bat habitat. The applicant's information indicated there are no open mine portals on the project site, and therefore no Indiana bat winter hibernacula are expected to be impacted by the project. Based on the information provided, the WVDEP concluded the project is not likely to adversely affect the Indiana bat.

The Corps has reviewed current federal list of threatened and endangered species. Based on all referenced information, the Corps has determined the proposed project is not likely to adversely affect the Indiana bat, and would have no effect on other federally listed species. If the USFWS has new information and believes any potential effects to federally listed species would be attributable to the Corps' proposed permitting action, it is requested the Service provide any additional information they may have

.PUBLIC INTEREST REVIEW AND CUMULATIVE EFFECTS: This application will be reviewed in accordance with 33 CFR 320-332, the Corps, 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 CW A. The decision whether to issue a permit will be based on an evaluation of the probable impact, 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 benefit 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; ofthose 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 Upper Spruce Fork hydrologic unit watershed (HU Code 050500090302). The Corps is assessing the potential cumulative effects that the proposed stream impacts may have on public interest factors when considered with other activities in that watershed. The assessment includes use of the 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 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 of the 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 of the comment period listed on page one 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 No. LRH-2008-72-BCR

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 of the Freedom of Information Act. Thank you for your interest in our nation's water resources. If you have any questions concerning this public notice, please call Richard Berkes of the Energy Resource Branch, at 304-399-5610.

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