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 (CWA). This notice serves as the Corps request to the West Virginia Department of Environmental Protection (WVDEP) to act on the Section 401 water quality certification for the following application:
Coal-Mac, Inc. dba Phoenix-Coal-Mac Mining Inc
P.O. Box 1050
Holden, West Virginia 25625
LOCATION: The proposed project is located approximately 2.0 miles southwest of Omar, Logan County, West Virginia. The project can be found at latitude 37°44’50” and longitude 82°02’04” on the Barnabus USGS Quadrangle maps. A portion of the proposed project would be constructed in unnamed tributaries of/and Pine Creek, Oldhouse Branch, and Cow Creek. These streams are tributaries of Island Creek, which flow into the Guyandotte River, a Section 10 navigable water. The project location map is attached to this public notice.
DESCRIPTION OF THE PROPOSED WORK: The applicant proposes to discharge fill material into waters of the United States (U.S.) to facilitate the removal of bituminous coal at the Pine Creek No. 2 Surface Mine. The applicant is requesting authorization to discharge fill material into nine jurisdictional stream segments in conjunction with the construction of an under-drain structure for one valley fill (Valley Fill No. 2), embankment structures for two sediment control ponds (Sediment Pond No. 2 and 2A), one permanent in-stream road crossing, two temporary in-stream road crossings, and three mine-through activities at the site. The applicant has applied to the West Virginia Department of Environmental Protection (WVDEP) for the required Surface Mining Control and Reclamation Act (SMCRA) permit (S-5008-09), which is currently pending.
The work requiring authorization from this office is limited to the discharge of dredged and/or fill material below the ordinary high water elevation of jurisdictional waters of the U.S. This office conducted a field review of the site in March 2012 to determine the extent of waters of the U.S. at the site. It was determined that approximately 34,635 feet of intermittent and 16,692 feet of ephemeral stream channel exists at the site. A total of 8,274 linear feet (1.25 acres) of intermittent and ephemeral stream channels are proposed to be filled as a result of the activities described below.
Valley Fill No. 2: To construct the under-drain structure associated with Valley Fill No. 2, the applicant proposes to permanently discharge 391cubic yards (c.y.) of clean, non-erodible, weathered sandstone below the ordinary high water elevation of approximately 4,804 feet (0.78 acre) of intermittent and 300 feet (0.02 acre) of ephemeral unnamed tributaries of Pine Creek (Tributaries S and W).
Sediment Ponds 2 and 2A: To construct the embankment structures associated with Sediment Ponds No. 2 and 2A, the applicant proposes to temporarily discharge 155 c.y. of fill material below the ordinary high water elevation of 1,480 feet (0.334 acre) of an intermittent tributary of Pine Creek (Tributary S) and five c.y. of fill material into 228’ (0.01 acre) of an ephemeral tributary of Pine Creek (Tributary S1). Upon completion of the surface mining and reclamation activities at the site, the applicant proposes to re-establish the two stream channels back to their approximate original location, geo-morphological condition and pre-mining flow regimes (see compensatory mitigation plan).
Mine-Through Activities: To allow the removal coal beneath waters of the U.S. at the site, the applicant proposes to permanently discharge a total of eight c.y. of fill material within 110 feet (0.01 acre) of two ephemeral tributaries of Pine Creek and within 127 feet (0.012 acre) of an unnamed tributary of Oldhouse Branch at the site.
Access Roads: To construct one permanent access road at the site, the applicant proposes to discharge 18 c.y. of fill material below the ordinary high water elevation of 500 feet (0.050 acre) of an intermittent tributary of Pine Creek (Tributary V) and six c.y. of fill material below the ordinary high water elevation of 446 feet (0.017 acre) of an ephemeral tributary of Pine Creek (Tributary V). To construct two temporary access roads at the site, the applicant proposes to discharge a total of nine c.y. of fill material into 262 feet (0.018 acre) of intermittent tributaries of Pine Creek (Tributary U and V) and 17 feet (0.0001 acre) of an ephemeral tributary of Pine Creek (Tributary U). Upon completion of the surface mining and reclamation activities at the site, the applicant proposes to the re-establish the two stream channels back to their approximate original location, geo-morphological condition and pre-mining flow regimes (see compensatory mitigation plan). A total of 6,287 feet (0.881 acre) linear feet of intermittent and 1,987 feet (0.364 acre) of ephemeral stream channel would be loss by the discharge of fill material below the ordinary high water elevation.
The applicant provided information concerning the approximate length in linear feet and volume in c.y. of the discharges of fill material into waters of the U.S. for each project component (See Table 1). 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.
ALTERNATIVE ANALYSIS: The applicant’s stated basic project purpose is coal removal. In the majority of cases, the activity of coal removal does not require siting within a water of the U.S. Because surface coal removal is not water dependent, the applicant is required to show that there are no other less damaging practicable alternatives available that do not require the discharge of fill material into waters of the U.S., and that would achieve the overall project purpose. No permit would be issued unless the alternatives analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.
Based on geological data collected by the applicant and the existence of adjacent surface mines within similar geological and topographical setting, the applicant has indicated the site has sufficient reserves (eight seams) to justify surface coal removal activities at the site. To determine the most efficient, logistical, safety, cost-effective and environmentally sound way to remove the coal reserves, the applicant evaluated four mining method alternatives for this project: surface contour mining, contour/auger/highwall mining, mountaintop mining, and underground mining. The applicant also considered a No Build alternative. All of the alternatives were evaluated using a set of criteria developed in accordance with SMCRA criteria and as well as specific criteria developed by the mining industry. Based on an evaluation of each mining method against the criteria, the applicant determined that a combination of contour/auger/highwall mining at the site is the most practicable alternative to feasibly extract coal from the site. This method of coal extraction would result in the production of approximately 90.9 million c.y. of excess overburden. Approximately 35.5 million c.y. of excess overburden would be placed within upland areas of the mine to reclaim the site to its approximate original contours. Approximately 25.0 million c.y. of excess overburden would be placed onto an adjacent surface mine in upland areas (S-5006-07). The remaining 65.9 million c.y. of overburden would require disposal at other location(s).
To determine the most practicable and least environmentally damaging location for disposal of the excess overburden, the applicant evaluated three alternatives for disposal of the overburden material: off-site overburden disposal at non-permitted areas and off-site overburden disposal at permitted areas, and disposal in on-site and off-site valleys. The applicant provided a set of criteria for the off-site disposal criteria which consisted of the following: proximity to mine site, property ownership and control, operation feasibility of identified disposal area, original ground slope of less than 36%, and ability to meet the SMCRA required 1.5 long-term static factor for safety. The applicant evaluated eleven (11) potential overburden disposal locations within a ½ mile radius of the proposed mine site. Based on their evaluation, the applicant indicated that two of the eleven sites, Valley Fill No. 1 and Valley Fill No. 2 met their stated criteria. The applicant further evaluated minimization to discharges of fill material into waters of the U.S. (see avoidance and minimization section below) and determined that they could eliminate Valley Fill No. 1 while still meeting their stated overall purpose. 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 in the Huntington District Office.
AVOIDANCE AND MINIMIZATION: The applicant indicated the proposed project cannot be located in an area that would avoid all discharges of fill material into waters of the U.S. As indicated in their alternative disposal location analysis, most of the sites evaluated contain waters of the U.S. However, the applicant has re-evaluated their original mine plan to determine if additional avoidance and minimization could occur on-site. The original SMCRA approved mining plan covered 832.58 acres and would have required the discharge of fill material into approximately 11,988 feet of intermittent and ephemeral stream channel (1.64 acres). Implementation of this mining plan would have required two valley fills and four sediment ponds and would have produced approximately 15.83 million tons of coal over the life of the mine. The mining plan was re-designed to reduce the footprint of the SMCRA-authorized mining area to 696.81 acres. The discharge of fill material into waters of the U.S. would be reduced to 8,274 feet (1.245 acres) thereby resulting in the elimination of Valley Fill No. 1. The revised mining plan would produce approximately 14.75 million tons, a coal reduction of 1.08 million tons. The revised mining plan would result in the avoidance of impacts to 3,841 feet (See Table 1). The applicant stated the mine plan and developmental sequence has been designed to avoid or minimize the discharge of fill material into waters of the U.S, to the extent practicable, while still meeting the stated project purpose. After mining and reclamation, the stream channels would be re-established and established 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 unavoidable discharges of fill material into waters of the U.S. after avoidance and minimization of the discharges were considered. The applicant proposed the following CMP components:
1. Re-establish 1,768 linear feet of two intermittent stream channels at the location of the proposed sediment ponds upon completion of mining and reclamation activities;
2. Establish approximately 19,925 linear feet of ephemeral stream channels within on-bench sediment control structures and freshwater diversion ditches. After the completion of mining and reclamation activities, these areas would be modified by removing check dams to establish natural channels. Additional modification would include installation of in-stream habitat and stabilization structure, and the establishment of a riparian buffer. These established channels would be connected to jurisdictional waters of the U.S. downstream of the mine site via the establishment of “connectivity channels”; and
3. Establish approximately 8,148 linear feet of intermittent and ephemeral “connectivity channels” which would connect the streams established within the on–bench sediment control structures to jurisdictional waters of the U.S. located downstream of the project area. Water flow from the established stream channels would be directed into the “connectivity” channels, which are currently non-jurisdictional drainages. The direct release of surface water run-off into the existing non-jurisdictional drainages should be sufficient, over time, to promote the development of a defined channel where one currently does not exist. These drainages would eventually become waters of the U.S. and would connect directly to existing waters of the U.S. located downstream of the proposed mine site. Based on the watershed acreages associated with each of the on-bench sediment control structures, there should be sufficient flow to create ephemeral and intermittent flow within the connectivity channels.
See Impact and Mitigation Site Locations map in Exhibit 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 of fill 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 of fill 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 (WV1019911) 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 included a letter dated August 22, 2007 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 Conference 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 current mist net survey conducted by the applicant will expire on May 15, 2016. 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 Island Creek (050701010504) 12-digit hydrologic unit code watershed. The Corps is assessing the potential cumulative effects that the proposed stream impacts from the discharge of fill material into waters of the U.S. 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. 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 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-2012-228-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 the 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 Kimberly Courts-Brown of the Energy Resource Branch at (304) 399-6906.