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LRH-2009-537-TUG

Published May 25, 2012
Expiration date: 6/25/2012

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 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 of the United States. The intent of this 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 United States (U.S.), including wetlands. The intent of the law is to protect the nation's waters from the indiscriminate discharge ofmaterial 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 of the Clean Water Act. This notice serves as the Corps request to the West Virginia Department of Environmental Protection (WVDEP) to act on Section 401 WaterQuality Certification for the following application.

APPLICANT: Southern Minerals, Inc . Post Office Box 1557 Welch, WV 24801

LOCATION: The proposed project is located approximately 1.7 miles north of Welch, in McDowell County, West Virginia. Specifically, the proposed project area is situated at latitude 37° 27' 9.9354" and longitude -81° 34' 49.4034" on the Welch USGS 7.5 quadrangle (Exhibit 1). The proposed project would result in the discharge of dredged or fill material into unnamed tributaries to Upper Shannon Branch and adjacent wetlands. Upper Shannon Branch is a tributary to Tug Fork River, a traditional navigable water of the U.S.

DESCRIPTION OF THE PROPOSED WORK: The applicant proposes surface coal mining activities which would result in the discharge of fill material into waters of the U.S. associated with the construction, operation and reclamation of the Upper Shannon Branch Surface Mine No.2. The required Surface Mining Control and Reclamation Act (SMCRA) Permit S-4018-09 is currently under review by the West Virginia Department of Environmental Protection (WVDEP). Based on information from the applicant, the purpose of the proposed project is to recover coal reserves from two (2) coal seams (Welch seam and Sewell seam). Recovery of coal reserves within the Upper Shannon Branch Surface Mine No.2 SMCRA permit area would be accomplished via a combination of surface extraction methods including contour surface, auger and highwall mining. Some of the coal reserves are located under and adjacent to jurisdictional stream channels and wetlands, and the proposed surface mining would result in the excavation of some of these channels and wetlands, a process called "mine-through." Construction and maintenance of sediment control structures (ponds), as well as construction of one ( 1) crossing for a haul road, will also result in the discharge of fill material into jurisdictional stream channels. Overburden generated by the proposed surface mining activities would be used to reclaim the mineral removal area to approximate original contour (AOC). The remaining excess overburden, which is generated from material fragmentation and the resultant "swell," will be placed in two valley fills, one of which will result in the discharge of fill material into jurisdictional waters of the U.S. Additionally, excess overburden material will be placed on top of an existing permitted excess overburden placement site. The applicant's Preferred Alternative is presented in Exhibit 2.

The proposed mine-through activities associated with the project would result in the permanent discharge of fill material into 721 linear feet (lf) of intermittent stream channel, 13 4 lf of ephemeral stream channel and 0.058 acres of adjacent forested wetlands within the Upper Shannon Branch watershed, a subwatershed of the Tug Fork Watershed. Placement of excess overburden into one (1) valley fill would result in the permanent discharge of fill material into an additional 1,099 lf of intermittent stream channel and 200 lf of ephemeral stream channel. Installation of one ( 1) road crossing would result in the temporary discharge of fill material into 40 lf of intermittent stream channel. The construction and maintenance of two (2) sediment control structures would result in an additional temporary discharge of fill material into 410 lf of intermittent stream channel. A total of 2,604 lf of waters of the U.S. would be permanently and temporarily impacted by the discharge of fill material, and 0.058 acres of adjacent forested wetlands would be permanently impacted by the discharge of fill activities associated with the proposed contour, highwall and auger coal mining activities (Exhibit 2; Table 1 and Table 2)

 

Table 1

Upper Shannon Branch Mine No. 2 Stream Impact Summary

 

 

Project Feature &

Stream Name

 

Penn anent Intermittent Impacts (lf)

Permanent Ephemeral Impacts (lf)

Temporary Intermittent Impacts (lf)

Temporary Ephemeral Impacts (lf)

Mine-Through-

Unnamed Tributaries ofUpper

Shannon Branch

 

721

 

134

 

0

 

0

Excess Overburden Storage  - Unnamed Tributaries of Upper Shannon Branch

 

1,099

 

200

 

0

 

0

Access Road Crossings - Unnamed Tributaries of Upper Shannon Branch

 

0

 

0

 

40

 

0

Sediment Ponds -

Unnamed Tributaries ofUpper

Shannon Branch

 

0

 

0

 

410

 

0

SUBTOTAL

1,820

334

450

0

TOTAL

2,604

 

Table 2

Upper Shannon Branch Mine No. 2 Wetlands Impact Summary

    

 

 

Project Feature &

Wetlands Classification

Permanent Wetlands Impacts (acres)

 

Temporary

Wetlands Impacts (acres)

Mine-Through

Forested Wetlands Adjacent to an Unnamed Tributary of Upper

Shannon Branch

 

0.058

 

0

SUBTOTAL

0.058

0

TOTAL

0.058

 

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 two (2) coal seams (Welch seam and Sewell seam), portions of which underlie jurisdictional stream channels and wetlands within the SMCRA permit area. Additionally, the information submitted by the applicant indicates that the project will result in valley fills for the placement of excess overburden material, the construction .of sediment control structures and installation of haul roads, some of which would be located in jurisdictional 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 excavation and subsequent discharge of fill material into jurisdictional 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; deep mining; area surface mining/mountaintop mining; and a combination of contour surface, auger, and highwall mining options. The results of their analysis indicated that a combination of contour surface, auger, and highwall mining with a higher ratio cut and wider pits on the Welch seam would decrease the overall acreage disturbance required and reduce impacts to jurisdictional waters from the discharge of fill material and would, therefore, be the best alternative to meet the project purpose.

The applicant evaluated alternatives for the permanent storage of excess overburden material. The SMCRA process requires permittees to return the site to AOC. Upon achieving AOC, any remaining excess overburden material may be placed outside the mineral removal area. The proposed Upper Shannon Branch Mine No.2 project area is proposed to be reclaimed and returned to AOC; therefore, the applicant evaluated the following permanent excess overburden storage alternatives: placement within the mineral removal area, or over-stacking; placement within adjacent valleys, resulting in new valley fills; placement within onsite valleys, creating new valley fills; hauling overburden material to an adjacent permitted area and over-stacked on top of an existing excess overburden placement site; and hauling excess overburden off-site. The applicant's initial analysis resulted in the proposed creation of four ( 4) new valley fills, all of which contained impacts to jurisdictional waters from the discharge of fill material. After continued evaluation and modifications to the proposed project, the applicant has reduced the number of proposed valley fills by increasing the storage capacity, utilizing an existing adjacent permitted site for the placement of overburden material, and modifying the footprint of a proposed valley fill by redesigning the toe above jurisdictional waters of the U.S. The applicant proposes to place a portion of the excess overburden material in two (2) valley fills, one (1) of which would result in permanent impacts to jurisdictional waters from the discharge of fill material; to overstack on top of the valley fills upon meeting AOC; and to haul the remaining portion of overburden material to an adjacent previously permitted fill area.

The applicant has evaluat~d alternatives for mine-through activities for the recovery of coal reserves located under and adjacent to jurisdictional stream channels and wetlands. By reducing the size of the coal extraction zone at this location, the applicant has been able to decrease the total proposed impacts to jurisdictional waters from the discharge of fill material from the initially-evaluated 2,217 lf to the preferred alternative total of 855 lf.

Multiple sediment and drainage control placement options were evaluated, and the applicant initially evaluated the construction of four (4) sediment control structures within jurisdictional waters of the U.S. After continued avoidance and minimization efforts and modifications to the proposal, the applicant has been able to reduce the total number of sediment control structures to three (3 ). One ( 1) sediment control structure would be located outside of jurisdictional waters ofthe U.S., and the two (2) remaining sediment control structures would be constructed in intermittent stream channels, resulting in temporary impacts to jurisdictional waters from the discharge of fill material.

The applicant has evaluated the necessity of haul roads within the project area and has minimized the number of road crossings to one (1 ), which would temporarily impact one (1) intermittent stream channel.

Based on the information above, the applicant has indicated the preferred alternative that is described in the "LEDPA Analysis of Selected Mining Alternative," of the document entitled, "Least Environmentally Damaging Practicable Alternative for the Upper Shannon Branch Contour Mine, McDowell County, West Virginia," is the most practicable alternative with respect to cost, local geology and condition of the coal reserves, logistics, existing technology, safety, and environmental considerations. The applicant's alternative analysis is available for review in the Huntington District's Regulatory 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 to waters of the U.S. However, the applicant's preferred alternative incorporates the following measures to minimize impacts to aquatic resources: utilizing highwall mining procedures with a higher ratio and wider pits on the Welch seam which reduces the overall project scope; reduction of the number of valley fills and associated sediment structures located within jurisdictional waters of the U.S. by increasing the storage capacity of the proposed valley fills to the level of the Sewell coal seam and backstacking overburden material; utilizing a previously-permitted overburden placement area, which reduces the total number of valley fills proposing to be placed in jurisdictional waters of the U.S. from four (4) to one (1); modifying the footprint of valley fills and location of an associated sediment structure which resulted in completely avoiding filling waters of the U.S. in one valley fill, and reduced the proposed fill area to waters of the U.S. in one valley fill; locating all but two (2) sediment and drainage control structures in upland areas; and minimizing the number of haulage road crossings within jurisdictional waters of the U.S. to one (1).

The applicant has indicated that there is no practicable alternative for the proposed project that completely avoids the discharge of fill material to waters of the U.S. However, the applicant's preferred alternative incorporates the following measures to minimize impacts to aquatic resources: utilizing highwall mining procedures with a higher ratio and wider pits on the Welch seam which reduces the overall project scope; reduction of the number of valley fills and associated sediment structures located within jurisdictional waters of the U.S. by increasing the storage capacity of the proposed valley fills to the level of the Sewell coal seam and backstacking overburden material; utilizing a previously-permitted overburden placement area, which reduces the total number of valley fills proposing to be placed in jurisdictional waters of the U.S. from four (4) to one (1); modifying the footprint of valley fills and location of an associated sediment structure which resulted in completely avoiding filling waters of the U.S. in one valley fill, and reduced the proposed fill area to waters of the U.S. in one valley fill; locating all but two (2) sediment and drainage control structures in upland areas; and minimizing the number of haulage road crossings within jurisdictional waters of the U.S. to one (1).

The applicant stated that incorporation of the minimization measures identified above into the Preferred Alternative has resulted in a 69 percent reduction of the discharge of fill material into streams, when compared to the combined contour surface mining with auger and highwall mining alternative with lower ratio contour surface mine pits. The combined surface mining alternative with lower ratio surface mine pits and higher volume of overburden material alternative would result in the filling of approximately 6,766lf of stream and 0.058 acre of wetlands and result in 3,280,171 cubic yards of excess overburden material to recover 1,215,000 tons of coal. Conversely, the Preferred Alternative would result in filling approximately 2,604lf of stream and 0.058 acre of wetlands and result in 2,072,353 cubic yards of excess overburden material to recover 1 ,3 50,000 tons of coal.·

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 and wetlands. Currently, there are no approved mitigation banks within the Upper Shannon Branch Watershed that offer stream credits. The applicant would provide stream re-establishment and additional restoration of the temporarily filled reaches onsite, and would provide on-site and in-kind stream restoration of the permanently filled stream reach, within the headwaters ofUpper Shannon Branch, resulting from the proposed mine-through activities. Additionally, the applicant has identified viable stream restoration and wetlands enhancement opportunities at an offsite location within the Mod Branch Watershed, which is adjacent to the Upper Shannon Branch Watershed, and flows into the Tug Fork River. The Upper Shannon Branch Watershed is also upstream ofthe Tug Fork River. Therefore, the applicant does not anticipate proposing the use ofWV ILF. A Compensatory Mitigation Plan (CMP) has been prepared by the applicant and is available for review in the Huntington District Office. The mitigation efforts include on-site and in-kind permittee-responsible mitigation for re-establishment of streams, plus additional stream restoration, of the temporarily impacted stream reaches; on-site and in-kind permittee-responsible stream restoration mitigation within the headwaters of the Upper Shannon Branch Watershed; and off-site and out-of-kind permittee-responsible stream restoration and wetlands enhancement mitigation within the headwaters of the Mod Branch Watershed. The applicant has employed the use of the West Virginia Stream and Wetland Valuation Metric (WV SWVM) to evaluate whether the proposed mitigation would adequately offset the impacts associated with discharge of fill material at the Upper Shannon Branch Surface Mine No.2 project. Table 3 and Table 4 summarize the proposed stream and wetlands mitigation, and Exhibit 3 provides the location of the specific mitigation reaches in relation to the proposed project. A description of each mitigation element is provided below.

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 and wetlands. Currently, there are no approved mitigation banks within the Upper Shannon Branch Watershed that offer stream credits. The applicant would provide stream re-establishment and additional restoration of the temporarily filled reaches onsite, and would provide on-site and in-kind stream restoration of the permanently filled stream reach, within the headwaters ofUpper Shannon Branch, resulting from the proposed mine-through activities. Additionally, the applicant has identified viable stream restoration and wetlands enhancement opportunities at an offsite location within the Mod Branch Watershed, which is adjacent to the Upper Shannon Branch Watershed, and flows into the Tug Fork River. The Upper Shannon Branch Watershed is also upstream ofthe Tug Fork River. Therefore, the applicant does not anticipate proposing the use ofWV ILF. A Compensatory Mitigation Plan (CMP) has been prepared by the applicant and is available for review in the Huntington District Office. The mitigation efforts include on-site and in-kind permittee-responsible mitigation for re-establishment of streams, plus additional stream restoration, of the temporarily impacted stream reaches; on-site and in-kind permittee-responsible stream restoration mitigation within the headwaters of the Upper Shannon Branch Watershed; and off-site and out-of-kind permittee-responsible stream restoration and wetlands enhancement mitigation within the headwaters of the Mod Branch Watershed. The applicant has employed the use of the West Virginia Stream and Wetland Valuation Metric (WV SWVM) to evaluate whether the proposed mitigation would adequately offset the impacts associated with discharge of fill material at the Upper Shannon Branch Surface Mine No.2 project. Table 3 and Table 4 summarize the proposed stream and wetlands mitigation, and Exhibit 3 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

Upper Shannon Branch Mine No. 2 Compensatory Mitigation Summary for Streams

 

Proposed Stream Mitigation

Length (feet)

Stream Re-establishment and Restoration of Temporary

Sediment Ponds via Mine Reclamation

 

560

Stream Re-establishment and Restoration of Temporary

Stream Crossing via Mine Reclamation

 

100

Stream Re-establishment and Restoration within the Upper Shannon Branch Watershed via Mine Reclamation

 

1,200

Stream Restoration within the Mod Branch Watershed

2,209

TOTAL

4,069

Table 4

Upper Shannon Branch Mine No. 2 Compensatory Mitigation Summary for Wetlands

  

Proposed Wetlands Mitigation

Area (Acres)

Wetlands Creation and Enhancement within the Mod

Branch Watershed                      :

 

0.151

TOTAL

0.151

Restoration and Enhancement of Temporary Sediment Pond and Stream Crossing via Mine Reclamation: The applicant proposes to restore and enhance a minimum of 660 lf of stream channel, proposed to be temporarily impacted by the construction of two (2) sediment control structures and one (1) road crossing, during the reclamation of the Upper Shannon Branch Mine No.2 project. Restoration of the unnamed tributaries of Upper Shannon Branch would include the removal of the sediment ponds and culvert structure and reconstruction of the channels by re-grading the channels based upon representative cross sections of the pre-mining pattern, profile, and dimensions, utilizing natural channel design techniques. A riparian corridor would be re-established with a mixture of native woody and herbaceous vegetative species. The applicant's CMP indicates that the use of natural channel design techniques would not only replace stream channel lost during the surface mining process, but would promote sediment transport and ecological function by restoring the natural functions and habitat characteristics of the streams, resulting in an ecological lift to the watershed. The stream re-establishment and restoration efforts are proposed to be initiated post mining.

Stream Re-establishment and Restoration Within the Upper Shannon Branch Watershed via Mine Reclamation: To offset the permanent loss of jurisdictional stream channel resulting from mine-through activities, the applicant proposes to restore approximately 1,200 lf of an unnamed tributary of Upper Shannon Branch during the reclamation of the Upper Shannon Branch Mine No.2 project. The stream channel would be re-established at the approximate location of the impacted channel and would be regraded and established based upon representative cross sections of the pre-mining pattern, profile, and dimensions utilizing natural channel design techniques. A riparian corridor would be re-established with a mixture of native woody and herbaceous vegetative species. The applicant's CMP indicates that the use of natural channel design techniques would not only replace stream channel lost during the surface mining process, but would promote sediment transport and ecological function by restoring the natural functions and habitat characteristics of the streams, resulting in an ecological lift to the watershed. The stream re-establishment and restoration efforts are proposed to be initiated post mining.

Stream Restoration and Wetlands Creation/Enhancement Within the Mod Branch Watershed: To offset the permanent loss of jurisdictional stream channel resulting from the valley fill activity and permanent loss of wetlands from the mine-through activity, the applicant proposes to restore approximately 2,209lf of Mod Branch and unnamed tributaries of Mod Branch and to create and enhance approximately 0.151 acres ofwetlands within the Mod Branch Watershed. The stream restoration within Mod Branch proposes the removal of five (5) existing in-stream ponds within the main channel of Mod Branch, three (3) of which are currently being used as backwash discharge ponds for the City of Welch's water treatment facility. Prior to removal of the three (3) ponds, one (1) new backwash discharge pond will be constructed in order to provide filtration for the water treatment facility. The discharge from the new backwash discharge pond will flow through an existing wetlands system to enable filtering of potential contaminants and will not discharge directly into Mod Branch. The applicant's CMP states that upon removal of the five ( 5) existing ponds, 1,523 lf of stream channel would be re-established based on the stream channel geometry of the existing stream channel pattern and use of natural channel design techniques, to include in-stream habitat enhancements to promote natural functions of the stream, and ecological lift within the watershed. Additionally, the applicant's CMP states that 686 lf of an unnamed tributary to Mod Branch would be restored to a stable natural state using natural channel design techniques to promote and restore the natural stream functions, and provide ecological lift to the watershed. The riparian zone along the entire restoration reach would be re-established and vegetated with native woody and herbaceous species. The applicant's CMP also states that in order to mitigate for the permanent filling of wetlands, approximately 0.151 acres of wetlands would be created in order to expand an existing wetlands system. This wetlands system will be located below the outfall of the new discharge pond, thus acting as a buffer between the pond and Mod Branch. Hydrology for the wetland would be aresult of pond overflow, overbank flow from Mod Branch, and precipitation from rain events. The wetland basin would be seeded with a mixture of native herbaceous hydrophytic vegetative species. The stream restoration and wetlands creation/enhancement efforts are proposed to be initiated prior to, or concurrent with, the proposed mining activities.

To offset the permanent loss of jurisdictional stream channel resulting from the valley fill activity and permanent loss of wetlands from the mine-through activity, the applicant proposes to restore approximately 2,209lf of Mod Branch and unnamed tributaries of Mod Branch and to create and enhance approximately 0.151 acres ofwetlands within the Mod Branch Watershed. The stream restoration within Mod Branch proposes the removal of five (5) existing in-stream ponds within the main channel of Mod Branch, three (3) of which are currently being used as backwash discharge ponds for the City of Welch's water treatment facility. Prior to removal of the three (3) ponds, one (1) new backwash discharge pond will be constructed in order to provide filtration for the water treatment facility. The discharge from the new backwash discharge pond will flow through an existing wetlands system to enable filtering of potential contaminants and will not discharge directly into Mod Branch. The applicant's CMP states that upon removal of the five ( 5) existing ponds, 1,523 lf of stream channel would be re-established based on the stream channel geometry of the existing stream channel pattern and use of natural channel design techniques, to include in-stream habitat enhancements to promote natural functions of the stream, and ecological lift within the watershed. Additionally, the applicant's CMP states that 686 lf of an unnamed tributary to Mod Branch would be restored to a stable natural state using natural channel design techniques to promote and restore the natural stream functions, and provide ecological lift to the watershed. The riparian zone along the entire restoration reach would be re-established and vegetated with native woody and herbaceous species. The applicant's CMP also states that in order to mitigate for the permanent filling of wetlands, approximately 0.151 acres of wetlands would be created in order to expand an existing wetlands system. This wetlands system will be located below the outfall of the new discharge pond, thus acting as a buffer between the pond and Mod Branch. Hydrology for the wetland would be aresult of pond overflow, overbank flow from Mod Branch, and precipitation from rain events. The wetland basin would be seeded with a mixture of native herbaceous hydrophytic vegetative species. The stream restoration and wetlands creation/enhancement efforts are proposed to be initiated prior to, or concurrent with, the proposed mining activities.

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: The proposed Upper Shannon Branch Mine No.2 plan was reviewed by the West Virginia Division of Culture and History (WVDCH)to determine if the project would result in impacts to archeological resources and/or architectural resources (properties) listed on or eligible for the National Register of Historic Places (National Register). In a letter dated November 20, 2009, the WVDCH requested that the applicant perform a veiwshed analysis, from the existing community to the proposed mining site, to identify if the proposed project would be visible from the potential historic community. The WVDCH provided additional comments in a letter dated May 23, 2011 which stated that it is the opinion of the WVDCH that there are no archaeological resources in the project area listed on or eligible for inclusion in the National Register of Historic Places; therefore, no further consultation is necessary with regard to archaeological resources. However, the WVDCH requested that an additional viewshed analysis be perfornied in order to determine if the project area would be seen from the potential historic community. Therefore, continued evaluation of potential architectural resources is required, and a copy of this public notice will be sent to the WVDCH for their review. Additional comments concerning archeological sensitivity of a project area should be based upon collected data.

ENDANGERED/THREATENED SPECIES REVIEW: One federally listed endangered species, the Indiana bat (Myotis soda/is) may occur within the project area. The applicant retained the services of Compliance Monitoring Labs, Inc., to complete a bat-mist net survey to determine presence or probable absence of each bat species within the proposed project area. Mist net surveys were conducted on August 9 and August 10 of 2007, and an abandoned mine portal habitat survey was conducted in August of2007. No Indiana bats were captured during either survey. 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 expires in May 15, 2012. Based on this information, the Corps has determined that the project as proposed is not likely to adversely affect the Indiana bat or its designated critical habitat. This public notice serves as a request to the USFWS and WVDEP for any additional information they may have on whether any listed or proposed to be listed endangered or threatened species may be present in the proposed project as required under the ESA Species Act of 1972 (as amended).

PUBLIC INTEREST REVIEW AND COMMENT: 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. This application will be reviewed in accordance with 33 CPR 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 CW A. Interested parties are invited to state any objections they may have to the proposed work. 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 ofthe people. 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.

The project lies within the Tug Fork (050702010205) 12-digit hydrologic unit code watershed. 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 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.

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 Tarrie Ostrofsky, Project Manager, Energy Resource Branch, CELRH-RD-E, Corps Huntington District, 502 Eighth Street, Huntington, West Virginia 25701-2070. Please note 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 urider provisions of the Freedom oflnformation Act. Tharnk you for your interest in our nationis water resources. If you have any questions concerning the above, please contact Tarrie Ostrofsky of the Energy Resource Branch at (304) 399-5610.