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LRH-2009-908-BCR

Published May 23, 2012
Expiration date: 6/22/2012

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 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 ofthe 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 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 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 ofthe Army Permit under the provisions of Section 404 ofthe Clean Water Act. This notice serves as the Corps request to the West Virginia Department of Environmental Protection (WVDEP) to act on Section 401 Water Quality Certification for the following application.

APPLICANT: Coyote Coal Company, LLC Post Office Box 1060, Danville, West Virginia 25053

LOCATION: The proposed project would be located approximately 1.7 miles southeast ofthe town of Julian, Scott District, Boone County, West Virginia. Specifically, the proposed project area would be situated at north latitude 38° 8' 36" and west longitude 81 o 49' 48" on the Julian 7.5-minute quadrangle (Figures 1 and 2). The proposed project would result in the discharge of fill material into Hill Fork and some of its unnamed tributaries, unnamed tributaries of the Little Coal River, and an unnamed tributary of Hewitt Creek. Hill Fork and Hewitt Creek are tributaries of the Little Coal River, a traditional navigable water of the United States.

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 United States associated with the construction, operation and reclamation of the Hill Fork Surface Mine. The required Surface Mining Control and Reclamation Act (SMCRA) Permit S-5039-08 is currently under review by the WVDEP. Based on information received from the applicant, the purpose of the proposed project is to mine coal. Recovery of coal reserves within the proposed Hill Fork Surface Mine SMCRA permit area would be accomplished via a combination of surface extraction methods including area and contour mining with secondary highwall and/or auger mining. Overburden generated by the proposed surface mining activities would be used to reclaim the mineral removal area to approximate original contour (AOC), except in areas where the applicant is applying for a variance from AOC. The remaining excess overburden, which is generated from material fragmentation and the resultant "swell", would be placed into three (3) valley fills. The variance would be applied in areas with a proposed post-mining land use of residential/light commercial, where the applicant would prepare the land for these land uses to accommodate local preferences. Areas where the proposed variance would not apply would have a post-mining land use of forestland. Some of the coal reserves are located under and adjacent to jurisdictional streams and the proposed surface mining would result in the excavation of some of these channels, a process called "mine-through."

Valley fill construction would result in the permanent discharge of fill material into jurisdictional stream channels; however, the applicant has designed each respective valley fill in accordance with the AOC+ Determination Process, which maximizes the amount of material returned to the mined area given area and slope requirements and minimizes valley fill size. Three (3) in-stream sediment ponds would be constructed, one ( 1) downstream of the "toe" of each valley fill. Sediment pond (pond embankments and pools) construction would result in the temporary discharge of fill material into jurisdictional streams. In addition to the sediment ponds, the applicant proposes to discharge fill material between the toe of one of Valley Fill 1 to its receiving sediment pond (Pond 1) to provide additional sediment control for this area. The applicant's Preferred Alternative is presented in Figure 3. Figures 4 through 6 demonstrate the proposed design for the three sediment ponds, while Figures 7 through 9 demonstrate the proposed design for the three valley fills. Figure 10 illustrates a typical cross section through the proposed mining area near Valley Fill3, located in the southern portion of the proposed project area and in the location of the proposed variance from AOC.

The proposed surface mining activities would result in the permanent and temporary discharge of fill material into a total of approximately 14,590 linear feet (lf) of jurisdictional stream channel within the Hill Fork, Hewitt Creek and Little Coal River watersheds, as follows: 1,305 If of perennial stream, 9,698 lf of intermittent stream and 3,587 lf of ephemeral stream. Construction of Valley Fills 1 through 3 would result in the permanent discharge of fill material into approximately 11,718 lf of jurisdictional stream: 250 lf of perennial stream, 8,152 lf of intermittent stream and 3,316lf of ephemeral stream. Mine-through areas would result in the permanent discharge of fill material into approximately 367 lf of jurisdictional stream: 96 lf of intermittent stream and 271 lf of ephemeral stream. Sediment pond construction would result in the temporary discharge of fill material into approximately 1,230 lf of jurisdictional stream: 860 lf of perennial stream and 3 70 lf of intermittent stream. The project would also result in the temporary discharge of fill material into approximately 195 lf of perennial stream between the toe of Valley Fill 1 and Pond 1. Streams located between the toes of the other valley fills and associated sediment ponds would be temporarily impacted due to sediment transport, impacting 1,080 lf of intermittent stream. Table 1 provides an impact summary for the proposed discharges of fill material associated with the Hill Fork Surface Mine project.

Table 1

Hill Fork Surface Mine Stream Impact Summary

 

Project Feature & Stream Name

Permanent Perennial Impacts (linear feet)

Permanent Intermittent Impacts (linear feet)

Permanent Ephemeral Impacts (linear feet)

Temporary Perennial Impacts (linear feet)

Temporary Intermittent Impacts (linear feet)

Temporary Ephemeral Impacts (linear feet)

Valley Fill 1 – Unnamed Tributaries (UTs) of Little Coal River

250

1,015

755

---

---

---

Pond 1 – UT of Little Coal River

---

---

---

430

---

---

Sediment Control Between VF 1 & Pond 1 – UT of Little Coal River

---

---

---

195

---

---

Valley Fill 2 – Hill Fork and UTs of Hill Fork

---

2,570

1,085

---

---

---

Pond 2 – Hill Fork

---

---

---

430

35

---

Sediment Transport to Pond 2 – Hill Fork

---

---

---

---

405

---

Valley Fill 3 – UTs of Hill Fork

---

4,567

1,476

---

---

---

Pond 3 – UT of Hill Fork

---

---

---

---

335

---

Sediment Transport to Pond 3 – UT of Hill Fork

---

---

---

---

675

---

Mine Through – UTs of Hill Fork, Hewitt Creek and Little Coal River

---

96

271

---

---

---

SUBTOTAL

250

8,248

3,587

1,055

1,450

0

TOTAL

14,590

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 discharge of fill material into waters of the United States, are not available that would achieve the overall project purpose. No permit will be issued until our review of 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 jurisdictional streams within the SMCRA permit area. The applicant concluded through their analysis of alternatives that it is not practicable to recover the coal reserves without the excavation and subsequent discharge of fill material into waters ofthe United States. The applicant's alternative analysis included the evaluation of alternatives that included: not mining the project area; stand alone mining methods; combined mining methods; and excess overburden disposal methods.

Stand alone coal extraction methods evaluated by the applicant included underground, full seam extraction and contour mining. Following the evaluation of each stand alone method, the applicant developed a surface mining combination alternative consisting of area and contour mining with secondary auger and highwall mining. The applicant also considered a combination alternative consisting of contour mining (alone) with secondary auger and high wall mining. The results of their analysis indicated that the area and contour mining with secondary auger and highwall mining combination alternative would best meet the project purpose.

The applicant evaluated alternatives for the permanent storage of excess overburden material. The SMCRA process requires all overburden material to be returned to the mining area in order to achieve AOC, except in areas where a proposed variance to AOC is approved. Upon achieving AOC, any remaining excess overburden may be placed outside the mineral removal area. The proposed Hill Fork Surface Mine project area is proposed to be reclaimed and returned to AOC, other than areas where a variance from AOC is proposed to accommodate the proposed post-mining land use. The applicant evaluated the following permanent excess overburden storage alternatives: hauling excess overburden off-site to non-SMCRA-permitted areas, hauling the overburden off-site to SMCRA-permitted areas including an adjacent surface mine and underground mines, and placement of fill within adjacent valleys (valley fill construction). The applicant's analysis indicated that placement of the fill within adjacent valleys would best meet the project's purpose, because of the lack of sufficient capacity to store the excess overburden off-site and on the adjacent mine permits that would also be returned to AOC. The applicant performed an evaluation of the adjacent watersheds, and determined that the Hill Fork watershed and an· unnamed tributary to the Little Coal River would be the best locations for the proposed valley fills because they have sufficient capacity, have toe slopes less than 20%, meet minimum stability factors and support the proposed post-mining land use.

Based on the information above, the applicant has indicated the preferred alternative that is described in the Description of the Proposed Work section (above), is the most practicable alternative with respect to cost, logistics, and existing technology. The applicant's alternative analysis is available for review in the Huntington District's Regulatory Office.

AVOIDANCE AND MINIMIZATION: The applicant indicated that there is no practicable alternative for the proposed project that completely avoids impacts to waters of the United States. However, the applicant's preferred alternative would incorporate the following measures to minimize impacts to aquatic resources: the design and implementation of storm water management best practices, including (including diversion/sediment ditches, sediment ponds, revegetation plans and silt fencing). In addition, the applicant has indicated the use of the AOC+ guidance and methodology for the design of the proposed valley fills has maximized the amount of overburden returned to the mined area to minimize the extent of the proposed valley fills to impact waters of the United States, except in areas where the applicant is proposing a variance from AOC to accommodate a proposed post-mining land use of residential/light commercial. The applicant has indicated they would also ensure any acid-toxic material would be isolated and blended with nontoxic material to avoid potential leaching into downstream waters.

COMPENSATORY MITIGATION PLAN: A Compensatory Mitigation Plan (CMP) describing the proposed on-site and in-kind permittee-responsible mitigation has been prepared by the applicant, and includes a combination of stream establishment and re-establishment ' opportunities within the proposed impact watersheds. The applicant has employed the use of the Interim Functional Assessment Approach for High Gradient Streams (IF AA) to evaluate whether the proposed mitigation would adequately off-set the impacts associated with the proposed Hill Fork Surface Mine project. Table 2 summarizes the proposed compensatory stream mitigation, and Figures 11 through 14 provide the proposed locations of the specific, on-site mitigation reaches, starting in the northwest section for Figure 11, northeast for Figure 12, southwest for Figure 13 and southeast for Figure 14. A description of each mitigation element is provided below, and a complete copy of the CMP is available for review in the Huntington District Office.

Table 2

Hill Fork Surface Mine Compensatory Mitigation Summary

 

Proposed Stream Mitigation

Length (linear feet)

Stream Establishment  via Mine Reclamation

15,691

Stream Re-establishment via Mine Reclamation (Sediment  Pond,

Sediment Transport  and Erosion Protection Zone)

 

2,505

TOTAL

18,196

Stream Re-establishment (Sediment Ponds and Sediment Transport): As part of mine reclamation, the applicant proposes to re-establish stream reaches that would be temporarily impacted by the installation of sediment ponds and sediment transport (from the toes of the proposed valley fills and the proposed sediment ponds). Re-establishment of stream reaches temporarily impacted would result in re-establishment of approximately 2,505 If of stream (1 ,055 If perennial and 1,405 If of intermittent stream). The applicant's CMP states that these stream reaches would be reconstructed withnatural channel design techniques to off-set the temporal loss of high gradient stream channels within the Hill Fork, Hewitt Creek and Little Coal River watersheds. Riparian buffers would be established with native woody and herbaceous species. Construction of these channels would provide organic matter input to support the aquatic food web within each ofthe respective watersheds. Figures 15 and 16 illustrate two examples ofthe proposed re-established channels with step/pool configurations.

Stream Establishment via Mine Reclamation: To partially off-set the permanent loss of highgradient jurisdictional stream channel from mine-through activities, the applicant's mine reclamation plan proposes to establish approximately 15,691 If of unnamed tributaries of Hill Fork, Hewitt Creek and the Little Coal River. A total of fourteen (14) reaches would be established during mine reclamation. A total of twelve (12) ofthese reaches would be intermittent channels constructed either within the proposed drainage structures along the proposed impacted area (six reaches totaling 7,693 If) or downstream of these structures in existing undisturbed watersheds (six reaches totaling 3,998 If). Two (2) of the reaches would consist of ephemeral channels constructed within the proposed drainage structures along the proposed impacted area (totaling 4,000 If). The applicant's CMP states that these channels would be structurally controlled Rosgen Aa+, B or C type channels with a riparian buffer containing native woody and herbaceous species. The goal of these establishment channels is to provide organic matter input within each of the respective watersheds to support the aquatic food web. The applicant is proposing a total of 2,918 If of this mitigation to offset the temporal loss of function during the proposed 1 0-year life of the mine. Figures 17 through 19 illustrate the proposed on-bench, established reaches with riffle/pool configurations.

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: 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 proposed Hill Fork Surface Mine plan was reviewed by the West Virginia Division of Culture and History (WVDCH) to determine if the project would result in impacts to properties listed on or eligible for the NRHP. To accomplish this, the applicant performed a Phase I Archaeological Survey and submitted the results to the WVDCH for review in July 2002. In a letter dated August 30, 2002, the WVDCH stated upon review oftheinformation submitted, they indicated the proposed project would have no effect on archaeological resources listed in or eligible for inclusion on the NRHP. No structures are present on the proposed project area requiring further assessment for eligibility on the NRHP. Therefore the Corps has determined the proposed project would have no effect on properties listed on or eligible for listing on the NRHP.

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

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 ofthe Endangered Species Act of 1972 (as amended).

One (1) federally listed endangered species, the Indiana bat (Myotis sodalis) may occur within the project area. The applicant retained the services of Mountain State Biosurveys, LLC to complete a bat-mist net survey and portal/cave assessment to determine presence or probable absence of the Indiana bat within the proposed project area. A mist net survey was conducted during June 2009. No Indiana bats were captured during the survey. A portal survey was also conducted and no inactive portals were identified within the project area. 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 Huntington District has determined Section 7 requirements have been met.

PUBLIC INTEREST REVIEW AND COMMENT: 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)(l) of the Clean Water Act. The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts oftheproposed 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 Upper Little Coal River (050500090502) 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 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-2009-908-GUY

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 under provisions of the Freedom oflnformation Act. Thank you for your interest in our nation's water resources. If you have any questions concerning the above, please call Jim Spence of the Energy Resource Branch at (304) 399-5610.