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LRH-2009-1040-TUS

Published March 12, 2013
Expiration date: 4/10/2013

PUBLIC NOTICE: The purpose ofthis 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: An application has been submitted to the Corps as a request for a permit, under the provisions of Section 404 ofthe Clean Water Act, for the proposed discharge offill material into waters ofthe U.S., as described below.

APPLICANT: Rosebud Mining Company 95 North Lisbon Street Carrollton, Ohio 44615

LOCATION: The proposed project area is approximately 43 acres in size and is located within unnamed tributaries to Stillwater Creek (HUC 0504001-170). The project is located at latitude 40.2122, longitude -81.1736, Sections 22 and 28 ofMill Township, Tuscarawas County, Ohio. Please see attached location map (Exhibit 1).

DESCRIPTION OF THE PROPOSED WORK: The applicant proposes to discharge 461 cubic yards (c.y.) offill material into 251linear feet ofephemeral stream channel and 2,780 linear feet ofintermittent stream channel for the operation ofan underground mining operation. The applicant has requested authorization to discharge fill material into waters ofthe United States in association with the disposal ofexcess spoil and the construction ofaccess roads and other facilities necessary to operate an underground coal mining operation. It is anticipated that the underground mining operation will take 15 years to complete. The location and amount of discharge is identified in Exhibit 2 (LRH-2009-1040-TUS Type and Quantity ofDredged or Fill Material). Proposed discharges would occur in conjunction with the Surface Mining Control and Reclamation Act (SMCRA) application D-2177-4 that was approved by the Ohio Division of Natural Resources, Division ofMineral Resources Management on May 24, 2012. The applicant's Section 404 permit application (including the compensatory mitigation plan) is available for public review in the Corps' Regulatory office at the address shown below, by appointment. A copy ofthe application can also be obtained by written request under the Freedom ofInformation Act.

ALTERNATIVES ANALYSIS: The applicant's stated overall project purpose is to operate an underground mine. This project is not water dependent; therefore, the applicant is required to show that other less damaging practicable alternatives, which do not require placing fill material into waters ofthe U.S., are available.

The applicant has developed three alternatives (preferred, minimal, and no-impact) analyzing how attendant facilities used to support the underground mining operation, as well as the discharge offill material into streams, could be placed in order to avoid and minimize impacts to aquatic resources while still fulfilling the applicant's project purpose. The applicant's preferred alternative is described above under Description ofProposed Work. Under the applicant's minimal alternative, 142 c.y. offill material would be discharged into 1,303lfofstream. The no-impact alternative would not impact aquatic resources on-site. A copy ofthe applicant's preferred alternative can be found in Exhibit 3. The applicant's alternatives analysis is currently being reviewed. No permit will be issued unless the alternatives analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.

MINIMIZATION OF IMPACTS TO WATERS OF THE U.S: The applicant has indicated that there is no practicable alternative for the proposed project that completely avoids the discharge offill material into waters ofthe U.S. The applicant proposes to utilize the following methods to minimize the effects of suspended particles entering streams during mining: the construction of water overland flow diversion ditches, water collection ditches on-site, and the construction of sediment ponds. Sediment ponds will act as water treatment facilities where storm water run-off and water pumped from the underground mine will be collected, monitored and treated ifnecessary before discharging off-site.

COMPENSATORY MITIGATION PLAN (CMP): The applicant used the Qualitative Headwater Habitat Evaluation Index (QHEI) and the Headwater Macroinvertebrate Field Evaluation Index (HMFEI) as methods to determine an appropriate level ofmitigation to compensate for stream impacts.

The applicant has proposed permittee responsible on-site, in-kind mitigation for the long term discharge oftemporary fill into jurisdictional streams associated with the preferred alternative. The applicant is proposing 1: 1 stream mitigation on-site for streams that will be directly impacted by the discharge offill material. The applicant proposes to restore/reconstruct an additional 2,073 linear feet ofstream on-site to account for temporal loss ofjurisdictional streams associated with the proposed project. In total, the applicant would restore and reconstruct 5,104 linear feet ofstream. A copy of the applicant's mitigation plan can be found in Exhibit 4.

The applicant's proposed CMP is open for comment and is subject to change based on comments received. After review of all 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 (WQC): An individual Section 401 Water Quality Certification is required for this project. It is the applicant's responsibility to obtain certification from the Ohio Environmental Protection Agency (OEPA), Division ofSurface Water. The applicant received 401 Water Quality Certification for this project on February 10,2012 (OEPA ID No. 113772).

HISTORIC AND CULTURAL RESOURCES: This Public Notice serves as coordination with the State Historic Preservation Officer (SHPO) concerning any 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 applicant conducted a Phase I Cultural Resource Management Survey at this site. The survey concluded that no historic properties are present. The Corps preliminary determination is that the proposed project will have no effect on historic properties. A copy of this Public Notice will be sent to the State Historic Preservation Office for their review. If we are made aware, as a result of comments received in response to this notice, or by other means, of specific archaeological, scientific, pre-historical, or historical sites or structures eligible for inclusion in the National Register which might be affected by the proposed work, the District Engineer will immediately take the appropriate action necessary pursuant to the National Historic Preservation Act of 1966.

ENDANGERED/THREATENED SPECIES REVIEW: This Public Notice serves 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). The proposed project lies within the natural range of the endangered Indiana bat (Myotis soda/is). A mist-net survey for the presence/absence of Indiana bat was conducted at the site in 2010. No Indiana bats were captured. Based on the results ofthe mist-net survey, the Corps preliminary effect determination is "no effect". If the USFWS has new information and believes any potential effects to federally listed species would be attributable to the Corps' proposed permitting action, it is requested the Service provide any additional information they may have by close of the public comment period.

PUBLIC INTEREST REVIEW AND CUMULATIVE EFFECTS: This application will be reviewed in accordance with 33 CFR 320-332, and other pertinent laws, regulations, and executive orders. Our evaluation will also follow the guidelines published by the U.S. Environmental Protection Agency pursuant to Section 404(b )( 1) ofthe CW A. The decision whether to issue a permit will be based on an evaluation of the probable impact, including cumulative impacts ofthe proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization ofimportant 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. The project lies within the Stillwater Creek watershed (Hydrologic Unit Code 050400115). The Corps is assessing the potential cumulative effects that the proposed fill discharges into jurisdictional waters ofthe U.S. may have on public interest factors when considered with other activities in that watershed.

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 ofthis 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 ofthe reasons for support or opposition. Any person who has an interest that may be adversely affected by the issuance ofa permit may request a public hearing. The request must be submitted in writing to the District Engineer on or before the expiration date ofthis 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 ofthis Public Notice will become a part ofthe 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 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 ofthis 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 ofthe reasons for support or opposition. Any person who has an interest that may be adversely affected by the issuance ofa permit may request a public hearing. The request must be submitted in writing to the District Engineer on or before the expiration date ofthis 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 ofthis Public Notice will become a part ofthe 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 ofthis 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-2009-1040-TUS 4969 Dillon Dam Road Zanesville, Ohio 43701 Please note that names and addresses ofthose who submit comments in response to this Public Notice become part ofour administrative record and, as such, are available to the public under provisions ofthe Freedom oflnformation Act. Thank you for your interest in our nation's water resources. If you have any questions concerning this public notice, please call Shawn Blohm of the Energy Resource Branch, at 740-454-2225, ext. 6.