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Published Nov. 28, 2012
Expiration date: 12/28/2012

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.


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 for the proposed discharge of fill material into waters of the United States (U.S.).  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 proposed discharge is in conjunction with the construction, operation and reclamation of the Toney Fork Surface Mine No. 3 (S-5007-09), 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).    



Cliffs Logan County Coal, LLC

100 Market Street, Suite A

Man, West Virginia 25635


LOCATION:  The proposed project is located approximately 2.0 miles northeast of Lorado in the Washington District of Boone County and the Triadelphia District of Logan County, West Virginia.  Specifically, the proposed project area is situated at latitude 37° 49' 22” and longitude 81° 41' 56" on the Lorado USGS 7.5 quadrangle.  The proposed project would result in the discharge of dredged or fill material into unnamed tributaries of (and) Dennison Fork and Spruce Laurel Fork.  Dennison Fork is a tributary of Spruce Laurel Fork of Spruce Fork; Spruce Fork is a tributary of the Little Coal River of the Coal River, a traditional navigable waterway.  See project Location Map in Exhibit 1 and the Stream Delineation Map in Exhibit 2. 


DESCRIPTION OF THE PROPOSED WORK:  The applicant proposes to discharge approximately 587 cubic yards of fill material into a total of 9,468 linear feet (lf) of stream channel during the operation of surface coal mining activities.  The required SMCRA Permit S-5007-09 (764 acres) is currently under review by the WVDEP.  Based on information provided by the applicant, the basic project purpose is to mine bituminous coal.  Recovery of coal reserves within the Toney Fork Surface Mine No. 3 SMCRA permit area would be accomplished via a combination of surface extraction methods including area and contour mining.  The discharge of fill material into waters of the U.S. would occur during the construction of two (2) valley fills, their associated sediment control structures, and one (1) mine-through area.  During valley fill construction, rock to be placed in-stream as an underdrain system would permanently fill 4,800 lf of intermittent stream channel and 3,470 lf of ephemeral stream channel.  The sediment control structures would temporarily fill 166 lf of perennial stream channel, 793 lf of intermittent stream channel and 140 lf of ephemeral stream channel.  The proposed mine-through activities would permanently fill 141 lf of ephemeral stream channel.     


A preliminary jurisdictional determination was completed by this office, for the proposed project area, on April 21, 2010 (Exhibit 2).  Tables 1 and 2 include permanent and temporary discharge of fill material into waters of the U.S. associated with the proposed project activity.  Exhibits 3 through 7 show the project boundary, and location and cross-sections of the proposed fill areas.      

Table 1
Toney Fork Surface Mine No. 3 – Permanent Discharge of Fill Material Summary

Project Feature &

Stream Segment

Permanent Intermittent (lf)

Permanent Ephemeral (lf)

Total Permanent (lf)

Valley Fill No. 1

Dennison Fork (DF) and Unnamed Tributaries




Valley Fill No. 2

 Spruce Laurel Fork (SLF)-3 and Unnamed Tributaries













Table 2
Toney Fork Surface Mine No. 3 – Temporary Discharge of Fill Material Summary

Project Feature &

Stream Segment

Temporary Perennial (lf)

Temporary Intermittent (lf)

Temporary Ephemeral (lf)

Total Temporary (lf)

Pond No. 1






Pond No. 2






Pond No. 3

SLF-3 and SLF-3C





Bonded Area (within Pond Nos 2 and 3)

SLF-3 and Unnamed Tributaries











ALTERNATIVE ANALYSIS:  This project is not considered to be water dependent; therefore, the applicant is required to show that other less damaging practicable alternatives, which do not require the placement of fill material into waters of the U.S., are not available that would achieve the overall project purpose.  No permit will be issued until we have determined that the alternative analysis clearly demonstrates that upland alternatives are not available to achieve the overall project purpose.


Information submitted by the applicant indicates that the purpose of the project is to recover coal reserves from six (6) coal seams, portions of which underlie waters of the U.S. within the SMCRA permit area.  The applicant concluded through its analysis of alternatives that it is not practicable to recover the coal reserves without the excavation and subsequent discharge of fill material into waters of the U.S.  The applicant’s alternative analysis included the evaluation of a full range of alternatives that included:  not mining the project area; underground mining, surface contour mining, contour/auger/highwall mining and area surface mining. 


The results of their analysis indicated that area surface mining, as proposed, would decrease the overall acreage disturbance required and reduce impacts to waters of the U.S. from the discharge of fill material, considering cost, local geology and condition of the coal reserves, logistics, existing technology and environmental considerations.  The applicant’s alternative analysis is available for review in the Huntington District Office.


AVOIDANCE AND MINIMIZATION:  The applicant has indicated that there is no practicable alternative for the proposed project that completely avoids the discharge of fill material into waters of the U.S.  However, the applicant’s proposed alternative incorporates the following measures to minimize impacts to aquatic resources:  reduction of the overall project size by 437 acres; elimination of valley fills for the permanent storage of excess overburden resulting in the reduction of discharge of fill material into 13,095 lf of waters of the U.S.; transporting 4,170,000 cubic yards of excess overburden off-site to an adjacent mine site; and utilizing existing access roads in order to provide linear transportation.  As a result of these avoidance and minimization measures, the proposed alternative would result in filling approximately 9,468 lf of stream channel, and would allow the extraction of approximately 1,150,000 tons of coal annually, for ten (10) years. 


COMPENSATORY MITIGATION PLAN:  The applicant explored the use of mitigation banks, the West Virginia In-Lieu Fee Program (WV ILF), permittee-responsible on-site and in-kind mitigation, and permittee-responsible off-site and out-of-kind mitigation to compensate for the permanent and temporal loss of jurisdictional stream channels.  The proposed project is situated on a dividing ridge between the Coal (HUC 05050009) and Guyandotte (HUC 05070101) River Basins, lying along portions of the ridge separating the Buffalo Creek (Guyandotte River) watershed from the Spruce Laurel Fork (Coal River) watershed.  Both watersheds were evaluated in developing the Compensatory Mitigation Plan (CMP), however, based on pre-law and past underground mining within the Spruce Laurel Fork watershed, perennial flow has subsided to a degree that rarely supports seasonal flow.  Conversely, re-establishing hydrologic connectivity within former tributaries of Buffalo Creek would provide significant improvements to a wide array of functions and potential functions within the Buffalo Creek watershed.  Consideration and development of the applicant’s permitee-responsible, watershed approach was initiated prior to the approval and release of mitigation credits from Mountain State Mitigation Credit Company’s Buffalo Creek Bank (MSM – Buffalo Creek Bank).  The proposed re-establishment within the Buffalo Creek watershed would promote significant synergies with the MSM – Buffalo Creek Bank.  Additionally, the applicant would be responsible for designing and constructing the Curtis Church sanitary sewer system (Sewage Project).  Upon completion of this Sewage Project, the entire Buffalo Creek watershed would have public sewage treatment.  A CMP has been prepared by the applicant and is available for review in the Huntington District Office. 


The applicant has used the West Virginia Stream and Wetland Valuation Metric (WV SWVM) to evaluate whether the proposed mitigation would adequately offset the discharge of fill material into waters of the U.S.  Table 2 summarizes the proposed mitigation, and Exhibit 8 provides the location of the specific mitigation reaches in relation to the proposed project.  A description of each mitigation element is provided below.





Table 3

Toney Fork Surface Mine No. 3 Compensatory Mitigation Summary

Proposed Stream Mitigation

Length (lf)

Stream Re-establishment

 Unnamed tributaries of (and) RW of Buffalo Creek


Curtis Church Sewage Project

Buffalo Creek





Re-establishment within unnamed tributaries of (and) RW of Buffalo Creek:  The applicant proposes to re-establish 2,982 lf of intermittent and ephemeral stream channel within a unnamed tributaries of (and) RW of Buffalo Creek using ecological restoration principles from the Society for Ecological Restoration (SER) and Rosgen Types A and Aa+ stream channel designs (Exhibits 9 through 11) .  Re-establishment of these reaches would be achieved by reconnecting and relocating existing, disconnected stream segments to their approximate former natural location and forming a continuous stream channel.  Also, a Restrictive Covenant will protect a 25-foot wide buffer zone on each side of the proposed stream re-establishment.  As stated above, stream channel re-establishment would provide significant functional restoration with the unnamed tributaries of (and) RW of Buffalo Creek and would also provide a functional lift within Buffalo Creek. 

Curtis Church Sewage Project – Buffalo Creek:  The community of Curtis Church is located in the headwaters of Buffalo Creek; therefore, approximately 49,700 lf of Buffalo Creek is expected to have improved water quality as a direct result of the Sewage Project (Exhibit 8).  Current fecal coliform levels downstream of the Curtis Church community range from 3,000 counts/ 100 mL to 6,000 counts/ 100 mL, indicating significant amounts of sewage are entering Buffalo Creek from failing septic systems.  Construction of the Sewage Project would mean that the entire length of Buffalo Creek would be connected to a public sewage treatment system.  Success of this Sewage Project will be measured based on the reduction of fecal coliform concentrations below the TMDL endpoint of 380 counts/100 mL, as selected by the EPA for human health, at locations where levels currently exceed the limit (within Buffalo Creek).


The proposed CMP is open for comment and is subject to change based on comments received.  After review of all submitted information, the Corps will determine appropriate mitigation, in the event a decision is made to issue a permit.   

WATER QUALITY CERTIFICATION:  A Section 401 Water Quality Certification is required for this project.  It is the applicant’s responsibility to obtain certification from the WVDEP.

HISTORIC AND CULTURAL RESOURCES:  In coordination with the WVDEP and Office of Surface Mining Reclamation and Enforcement (OSM), the proposed project was reviewed by the West Virginia State Historic Preservation Officer (SHPO) to determine if the project would result in impacts to archeological resources and/or architectural resources (Historic Properties) listed on or eligible for inclusion on the National Register of Historic Places (National Register).  A Phase I Cultural Resource Survey was conducted by Paciulli, Simmons and Associates in December 2008 and archeological resources potentially eligible for listing in the National Register were identified within the proposed SMCRA permit area.  Additional cultural resource surveys are proposed by the applicant and further coordination with the SHPO will be conducted by the WVDEP and OSM.  This public notice serves as coordination with the SHPO, pursuant to Section 106 of the National Historic Preservation Act.   


ENDANGERED/THREATENED SPECIES REVIEW:  Two federally listed endangered species, the Indiana bat (Myotis sodalis) and Virginia big-eared bat (Corynorhinus townsendii virginianus) may occur within the project area.  Twelve (12) mist net survey sites were selected and surveyed between July 24 and July 29, 2008.  No federally-listed bats were captured.  The WVDEP reviewed the survey results and determined that the proposed surface mine project is not likely to adversely affect endangered or threatened bat species or their critical habitat.  The validity of the survey results expire on July 24, 2013.  Based on this information, the Corps has determined that the project as proposed is not likely to adversely affect the Indiana bat, Virginia big-eared bat or its designated critical habitat.  This Public Notice serves as coordination with the United States Fish and Wildlife Service for any additional information they may have concerning the project’s potential effect on federally listed threatened and endangered species pursuant to Section 7 of the Endangered Species Act of 1972 (as Amended).   


PUBLIC INTEREST REVIEW AND CUMMULATIVE 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 the guidelines published by the United States Environmental Protection Agency pursuant to Section 404(b)(1) of the CWA.  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; 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 Coal River (050500090301) and Guyandotte River (050701010505) 12-digit hydrologic unit code watersheds.  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 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.  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-2010-125-BCR

            502 Eight 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 the above, please contact Samantha Dailey of the Energy Resource Branch at (304) 399-5858.