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LRH-2008-1104-GUY

Published Jan. 23, 2012
Expiration date: 2/22/2012

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 factor.s affecting the public interest. We hope 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 ofthe United States (U.S.). The intent ofthis law is to protect the navigable capacity of waters important to interstate commerce.

SECTION 404: 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: The following application has been submitted for a Department of the Army Permit under the provisions of Section 404 ofthe 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. The proposed discharge is in conjunction with the construction, operation and reclamation of the applicant's Piney Branch Surface Mine (S-5035-08), 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 (WV 10 19805), is currently being review by the WVDEP.

APPLICANT: Aracoma Coal Company P.O. Box 1120 Holden, West Virginia 25625

LOCATION: The proposed project is located approximately 1.1 miles northeast of Ethel, in Logan County, West Virginia. The project can be found near latitude 37°53'12" and longitude 81 °53'27". The proposed project would be constructed in unnamed tributaries of and in Pine Fork and in an unnamed tributary to Ethel Hollow. Pine Fork and Ethel Hollow are both tributaries to Dingess Run, a direct tributary to the Guyandotte River, a Section 1 0 navigable water and a traditional navigable water. See project Location Map in Exhibit 1.

DESCRIPTION OF THE PROPOSED WORK: The applicant is requesting authorization to discharge fill material into nine jurisdictional waters of the U.S. in conjunction with the construction of one valley fill, one mine-through area, two sediment ponds, and two road fills. The proposed impacts are associated with the proposed 554.45 acre Piney Branch Surface Mine. The applicant's proposed surface mine would consist of contour/highwall mining with area mining utilizing on-site placement of spoil in a valley fill. Proposed stream impacts are described in detail below. See the Stream Delineation Map in Exhibit 2, the Proposal Map in Exhibit 3, and a Typical Cross Section in Exhibit 4.





Permanent  Impact (ft)

Temporary lmpact  (ft)

Proposed Structure

Impacted Stream(s)

Intermittent

Ephemeral

Intermittent

Ephemeral

Valley Fill  I

C. D. E. F. G.and  H

4.392

1,943





Mine-Through  Area

I



766





Sediment  Pond  1 and 2

c





1,286



Road Fill 1

B







181

Road Fill 2

A





403

74

 

 

 

Total

4,392

2.709

1,689

255

7,101

1.944

9,045

Proposed Valley Fill: The applicant proposes to construct a permanent valley fill within Stream C (Pine Fork) and unnamed tributaries to Strean1 C (Streams D. E, F, G and H) to facilitate the mining operation and allow for the disposal of excess material. This would result in 6.335 ft of permanent impact to intermittent and ephemeral streams and would result in 896 cubic yards (CY) of fill material placed into waters of the U.S. below the ordinary high water mark. The valley fill would be constructed and reclaimed from the bottom-up.

Proposed Mine-Through Area: The applicant proposes to area mine through the location of Stream I. This would result in 766 ft of permanent impact to an ephemeral stream.

Proposed Sediment Pond 1 and 2: The applicant proposes to construct two in-stream sediment ponds within Stream C (Pine Fork) that would result in 1.286 ft of temporary impact to intermittent streams and would result in 220.7 CY of till material placed into waters of the U.S. below the ordinary high water mark.

Proposed Road Fill 1 and 2: The applicant proposes to construct road fills within Stream Band Stream A to facilitate the construction and use of a haul road. This would result in two road fills with 658ft of temporary impact to intern1ittent and ephemeral streams and would result in 59.7 CY of fill material placed into waters of the U.S. below the ordinary high water mark.

ALTERNATIVE ANALYSIS: The applicant's stated basic project purpose is to mine bituminous coal. This project is not water dependent; therefore, the appl icant 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. 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: underground mining, area mining, contour mining, and contour/highwall with area mining. The applicant has indicated area mining and contour/highwall with area minjng are two mining method alternatives that are practicable. The applicant also evaluated three excess spoil placement location alternatives: off-site fill placement to non-permitted areas, off-site fill placement to permitted areas, and on-site placement of spoil in valley fills. The applicant has indicated on-site placement of spoil in valley fills is the only practicable alternative. Therefore, the applicant stated the preferred alternative and the least environmentally damaging practicable alternative was contour/highwall mining with area mining utilizing on-site placement of spoil in valley fills. 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 following actions were taken to nlinimize impacts: choice of the least environmentally damaging practicable alternative, alternate fill locations, Valley Fill 1 was designed to be overstacked above the elevation required by the AOC modeling, some road fills were located out of jurisdictional waters. extensive use of on-bench sediment control, sediment ponds located as close to the toe of the fill as possible, and adherence to BMPs in accordance with the state approved mitigation plans.

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 the following CMP components:

1. Re-establish 1,944 ft of streams temporarily impacted by sediment ponds and road fills.

2. Restore through enhancement 8,500 ft of Pine Fork and its tributaries.

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 impacts to waters of the U.S. As part of our evaluation, the Corps will review the applicant's SWVM sheets for accuracy. See Pine Fork Enhancement Location Map in Exhibit 5.

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 detennination 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 (WVl 019805) 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 letters dated November 17, 2008 and July 27, 2009 from the West Virginia Division of Culture and History, the West Virginia State Historic Preservation Office (SHPO). These letters state the Blair Mountain Battlefield is eligible for listing in the NRHP, and due to the proximity of the proposed project to the battlefield, direct and indirect effects to the battlefield may occur. Therefore, the SHPO states the proposed project may have an adverse effect on the Blair Mountain Battlefield.

The Huntington District reasonably expects the proposed project may have an adverse effect on the Blair Mountain Battlefield, a site eligible for listing in the NRHP. The SHPO has also identified many archaeological sites within a close proximity to the proposed project; however, additional information is required to assess the potential impact of the proposed project on these resources.

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 proposed adverse effect on historic properties. If you wish to provide comments or objections regarding the effect of the proposed project on historic properties, including the Blair Mountain Battlefield, please provide this information to our office prior to the close of the comment period.

This Public Notice has been provided to the Advisory Council on Historic Preservation (ACHP) and the SHPO. 

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 February 5, 2009 and February 2, 2010, 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 guidel ines published by the U.S. Environmental Protection Agency pursuant to Section 404(b)(l) 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 Dingess Run-Guyandotte River (05070 101 0508) 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 detennine 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: CELRI-1-0R-FE Public Notice No. LRH-2008-11 04-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 of the 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 ofthe Energy Resource Section at (304) 399-5610.