LRH-2009-835-OHR

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. A copy ofthe application including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.) is available for review in the Huntington District Office. The proposed discharge is in conjunction with the construction, operation and reclamation of the applicant's Right Fork of Camp Creek Refuse Disposal Facility (0-5004-11), 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 (WV1015040), is currently being review by the WVDEP.

APPLICANT:

Matthew Vance

 Rockspring Development, Inc.

400 Patterson Lane

Charleston, West Virginia 25311

LOCATION: The proposed project is located 3.9 miles east ofEast Lynn in the Stonewall District of Wayne County, West Virginia. The project can be found near latitude 38.157979 and longitude -82.318068. The proposed project would be constructed in and within unnamed tributaries of the Right Fork of Camp Creek. The Right Fork of Camp Creek flows into Camp Creek and then into the East Fork ofTwelvepole Creek, which is a direct tributary ofTwelvepole Creek, a traditional navigable water. Twelvepole Creek is a direct tributary to the Ohio River, a Section 10 navigable water. See project Location Map in Exhibit 1.

DESCRIPTION OF THE PROPOSED WORK: The applicant is requesting authorization to discharge fill material into jurisdictional waters ofthe U.S. in conjunction with the expansion ofan existing impoundment to permanently store coarse and fine refuse generated by an existing adjacent underground mine and preparation plant (U-0025-84). Additionally, the expansion of the impoundment would necessitate the construction of three temporary drainage control structures below the impoundment. The proposed project is 259.33 acres and would operate for approximately seven years, allowing the adjacent underground mine to continue operations and produce approximately 18.6 million tons of coal over seven years.

The existing impoundment was built in the 1970s to retain freshwater (16.6 surface acres of open water). Intermittent and ephemeral waters ofthe U.S. flow into the impoundment. Water from the freshwater impoundment is currently being utilized by the adjacent underground mine and preparation plant.

The applicant proposes to expand the base and the height of the impoundment and dispose coarse and fine refuse generated from the adjacent underground mine and preparation plant behind the impoundment. The expansion of the impoundment and disposal of24.29 million tons of coarse refuse and 6.09 million tons of fine refuse would result in the discharge of fill material into 6,465 feet of stream, 1. 75 acres of wetland, and 16.6 acres of open water. Proposed impacts from the discharge of fill material in waters ofthe U.S. are described in Table 1. See the Stream Delineation Map in Exhibit 2, and the Proposal Map in Exhibit 3.

Table 1

 Proposed Impacts from the Discharge of Fill Material into Waters of the U.S.

ALTERNATIVE ANALYSIS: This project is not water dependent; therefore, the applicant is required to show that no other less damaging practicable alternatives, which do not require the placement of fill material into waters of the U.S., are 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 seven locations for refuse placement and alternate plans for constructing and operating the refuse facility.  Based on siting criteria of the refuse fill, safety factors, and operational feasibility, the applicant indicated the preferred alternative is the only practicable alternative.  Based on their analysis, the applicant stated the preferred alternative 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’s Regulatory Office, by appointment.

AVOIDANCE AND MINIMIZATION: The applicant indicated the proposed project cannot be located in an area that will avoid all impacts to jurisdictional waters.  The applicant stated the mine plan or developmental sequence of the impoundment was designed to avoid or minimize impacts to jurisdictional waters of the U.S., to the extent reasonable and practicable, while meeting the stated project purpose.

COMPENSATORY MITIGATION PLAN (CMP): The applicant has submitted a CMP to compensate for unavoidable impacts to waters of the U.S. after avoidance and minimization of impacts were considered.  The applicant proposed permittee-responsible mitigation using a watershed approach.  See the Mitigation Reaches described below in Exhibit 4.  The CMP contains the following components:

1.      Establish 2,979 feet of streams (HF1A, HF1B, HF1C, HF1D, HF1E, HF1F, HF2, HF3, and HF4) across the surface of an old valley fill, to provide 4,199 feet of existing headwater streams (HFISO1, HFISO2, HFISO3, HFISO4, HFISO4A, HFISO4B, HFISO6, and HFISO5) with an uninterrupted continuous surface water connection to the Right Fork of Camp Creek tributary system.  Currently, the 4,199 feet of headwater streams flow through an old valley fill and do not have a continuous surface water connection to the tributary system.  The old valley fill was constructed during a railroad spur expansion prior to 1977.  The applicant indicated that 2,979 feet of ephemeral and intermittent streams would be created below streams with existing hydrology, and the full functional capacity of 4,199 feet of headwaters streams would be restored to the tributary system.

2.      Re-establish 1.56 acres of emergent wetland abutting the Right Fork of Camp Creek (RR1 in Exhibit 2) after the drainage control structures are reclaimed.

3.      Establish 1.37 acres of emergent wetland (Wetland Creation) along the right descending bank of the Right Fork of Camp Creek.

4.      Enhance and expand 0.13 acres of shrub/scrub and emergent wetland (Wetland HF) as a component of the continuous surface water connection identified in number 1, above.

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 impact areas 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 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 activity.  The applicant’s WQC is currently pending (WV1015040) 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, in accordance with Section 106 of the National Historic Preservation Act (NHPA).  The application package included a letter dated May 9, 2011 from the West Virginia Division of Culture and History, the West Virginia State Historic Preservation Office, requesting additional information in order to complete their review.  The Huntington District has determined the requirements of Section 106 of the NHPA have not been met at this time.    

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 agreement between the USFWS and the U.S. Office of Surface Mining.  By letter dated June 9, 2011, the WVDEP concluded the 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 Lower East Fork Twelvepole Creek (050901020204) 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.  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-2009-835-0HR

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 Jacob Siegrist ofthe Energy Resource Branch at (513) 825-4489.