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LRH-2013-127-KAN

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

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 for the proposed discharge of fill material into waters of the United States (U.S.).  A copy of the application, including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.), is available for review in the Huntington District Office, by appointment.  The proposed discharge is in conjunction with the Fivemile Hollow Combined Coal Refuse Facility (Fivemile Refuse Facility) (O-3033-07), 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).    

 

APPLICANT:             Coyote Coal Company, LLC

                                 Post Office Box 1060

                                  Danville, West Virginia 25053

 

LOCATION:  The proposed project is located approximately 2.5 miles northeast of Tad in the Malden District of Kanawha County, West Virginia.  Specifically, the proposed project area is situated at latitude 38° 21' 10” and longitude -81° 27' 35" on the Quick USGS 7.5 quadrangle.  The proposed project would result in the discharge of dredged or fill material into unnamed tributaries of Fivemile Hollow, and Fivemile Hollow itself.  Fivemile Hollow is a tributary of Campbells Creek, a tributary of the Kanawha River, a traditional navigable water of the U.S.  See project Location Map in Exhibit 1 and the Stream Delineation Map in Exhibit 2. 

 

DESCRIPTION OF THE PROPOSED WORK:  The applicant proposes to discharge fill material into waters of the U.S. associated with the construction, operation and maintenance of the Fivemile Refuse Facility.  The project purpose is to provide for continued operation of underground mining activities and to create stable permanent storage for coal refuse material generated by processing deep mine bituminous coal.    

 

The proposed Fivemile Refuse Facility (271.46 acres) would result in the discharge of approximately 27,509 cubic yards of fill material into a total of 25,948 linear feet (lf) of stream channel and 0.22 acres of emergent wetland, within unnamed tributaries of (and) Fivemile Hollow.  As shown in Table 1, the Fivemile Refuse Facility would result in the permanent discharge of fill material into 14,172 lf of intermittent stream channel, 11,417 lf of ephemeral stream channel and 0.22 acres of emergent wetland.  Table 2 describes the temporary discharge of fill material into 359 lf of intermittent stream channel for the construction of one (1) sediment control structure (Pond 1B).  A preliminary jurisdictional determination was completed by this office for the proposed project area on January 10, 2011 (LRH-2009-158-KAN) (Exhibit 2).  A reference cross-section of Fivemile Hollow can be found in Exhibit 3.   

Table 1
Summary – Proposed Permanent Discharge of Fill Material

Project Feature

Stream Reach / Wetland ID

Proposed Permanent Discharge of Fill Material

Intermittent

Ephemeral

Wetland

Length

Acreage

Length

Acreage

Acreage

 FIVEMILE REFUSE FACILITY

Fivemile Hollow (Fivemile)

5,713

0.8447

100

0.0018

—— 

UT - 6 (Tributary of Fivemile)

—— 

—— 

1,000

0.0808

—— 

UT - 6A (Tributary of Fivemile)

—— 

—— 

252

0.0261

—— 

UT - 7 (Tributary of Fivemile)

1,600

0.1818

465

0.0402

—— 

UT - 7A (Tributary of Fivemile)

—— 

—— 

400

0.0124

—— 

UT - 7B (Tributary of Fivemile)

—— 

—— 

786

0.0598

—— 

UT - 8 (Tributary of Fivemile)

2,200

0.2984

98

0.0131

—— 

UT - 8A (Tributary of Fivemile)

—— 

—— 

306

0.0099

—— 

UT - 8B (Tributary of Fivemile)

—— 

—— 

172

0.0091

—— 

UT - 8C (Tributary of Fivemile)

—— 

—— 

207

0.0111

—— 

UT - 9 (Tributary of Fivemile)

450

0.0668

2,063

0.2123

—— 

UT - 9A (Tributary of Fivemile)

—— 

—— 

475

0.0305

—— 

UT - 9C (Tributary of Fivemile)

—— 

—— 

302

0.0327

—— 

UT - 9D (Tributary of Fivemile)

—— 

—— 

200

0.008

—— 

UT - 10 (Tributary of Fivemile)

2,120

0.1261

483

0.0203

—— 

UT - 10A (Tributary of Fivemile)

—— 

—— 

297

0.0133

—— 

UT - 11 (Tributary of Fivemile)

—— 

—— 

878

0.0712

—— 

UT - 12 (Tributary of Fivemile)

—— 

—— 

1,249

0.0658

—— 

UT - 13 (Tributary of Fivemile)

640

0.0284

280

0.0059

—— 

UT - 14 (Tributary of Fivemile)

—— 

—— 

914

0.0368

—— 

UT - 16 (Tributary of Fivemile)

—— 

—— 

292

0.0081

—— 

UT - 17 (Tributary of Fivemile)

400

0.0145

92

0.0033

—— 

UT - 19 (Tributary of Fivemile)

71

0.0032

—— 

—— 

—— 

UT - 20 (Tributary of Fivemile)

—— 

—— 

106

0.0023

—— 

UT - 21 (Tributary of Fivemile)

395

0.0168

—— 

—— 

—— 

UT - 22 (Tributary of Fivemile)

583

0.0329

—— 

—— 

—— 

Cumulative Total (Stream)

14,172

1.6136

11,417

0.7748

—— 

 Site 3 Wetland

—— 

—— 

—— 

—— 

0.22

Cumulative Total (Wetland)

—— 

—— 

—— 

—— 

0.22

Table 2
Summary – Proposed Temporary Discharge of Fill Material

Project Feature

Stream Reach

Proposed Temporary

Discharge of Fill Material

Intermittent

Length

Acreage

Pond 1B

Fivemile Hollow (Fivemile)

359

0.1024

Cumulative Total (Stream)

359

0.1024

 

ALTERNATIVE ANALYSIS:  As a result of the proposal, fill material would be discharged into 0.22 acres of jurisdictional wetland and 25,948 lf of jurisdictional stream channel.  The project does not require access or proximity to or siting within the wetlands to fulfill its basic purpose and is considered a non-water dependent activity.  The Section 404(b)(1) Guidelines state that for non-water dependent activities, practicable alternatives that do not involve wetlands are presumed to be available, unless clearly demonstrated otherwise.  Therefore, 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.  The applicant is required to provide an alternatives analysis that must overcome the presumption prior to receiving authorization for the placement of fill material.  The applicant has submitted the required alternatives analysis and it is currently under review.  Alternatives evaluated by the applicant include: injection of slurry (fine coal refuse) with coarse refuse fill; coarse refuse embankment with slurry impoundment; and combined (course and fine) refuse disposal facility.

 

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 into waters of the U.S.  However, the applicant’s proposed alternative incorporates the following measures to minimize impacts to aquatic resources:  constructing slurry cells atop previously mined and reclaimed lands; utilizing existing slurry cells; and utilizing and upgrading an existing access road in order to provide linear transportation.   As a result of these avoidance and minimization measures, the proposed alternative would result in filling approximately 25,948 lf of stream channel and 0.22 acres of emergent wetland, and would allow underground mine facilities that contribute coal refuse material to extract approximately 1,600,000 tons of coal annually, for twenty-one (21) years. 

 

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 wetland.  Currently, there are no approved mitigation bank credits available within the watershed.  Therefore, the applicant has chosen to offer mitigation in the form of permitte-responsible stream establishment (creation) and restoration (re-establishment) in order to offset the permanent loss of jurisdictional stream and wetland.  Additionally, the applicant would offer mitigation in the form of permittee-responsible stream and wetland establishment (creation) and restoration (rehabilitation) within Rattlesnake Hollow, an adjacent watershed, in order to offset the temporal loss of jurisdictional stream and wetland.    

 

The applicant has used the West Virginia Stream and Wetland Valuation Metric (WV SWVM) to evaluate whether the proposed mitigation would adequately offset the discharge of fill material into waters of the U.S in conjunction with the Fivemile Refuse Facility.  Table 3 summarizes the proposed stream and wetland mitigation, and Exhibit 4 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

Summary – Proposed Stream and Wetland Mitigation

Proposed Stream and Wetland Mitigation

Linear Feet

Acres

Stream Establishment

 Proposed perimeter drainage conveyances associated with the refuse facility

25,956

——

Stream Re-establishment

Unnamed tributaries of Fivemile Hollow

2,286

——

Stream Rehabilitation

Rattlesnake Hollow

4,318

——

Stream and Wetland Establishment

Rattlesnake Hollow

50

0.44

TOTAL

32,610

0.44

 

On-Site Stream Establishment-within the proposed perimeter drainage conveyances associated with the Fivemile Refuse Facility:  The applicant proposes to establish 23,956 lf of ephemeral stream channel within the proposed perimeter drainage conveyances associated with the Fivemile Refuse Facility (Exhibit 5) using the Rosgen and Montgomery Buffington classification systems and reference reach data, collected at three (3) separate locations.  The established segments would be constructed using natural channel restoration techniques, including installation of habitat and morphological stability structures, similar to the reference reach data.  A minimum of a 175-foot (25’ on side adjacent to the Fivemile Refuse Facility, 150’ on the opposite side) riparian buffer zone would be established.  By restoring appropriate dimensions, patterns and profiles, in addition to channel structure and function, the applicant believes the aquatic life would recover to sustainable levels.  A Typical cross-section of the proposed established stream channels can be found in Exhibit 6. 

On-Site Stream Re-Establishment-within the unnamed tributaries of Fivemile Hollow:  Approximately 2,286 lf of ephemeral stream channel within the unnamed tributaries of Fivemile Hollow are located outside of the proposed project area and would be disconnected from the downstream jurisdictional reaches (Exhibit 5).  However, stream establishment within the perimeter drainage conveyances around the proposed Fivemile Refuse Facility would maintain the jurisdictional connection.  Upon completion of the stream establishment (within the perimeter drainage conveyances), approximately 2,286 lf of stream channel within the unnamed tributaries of Fivemile Hollow would be re-established in order to connect the preserved stream channels to the established stream channels.  The same natural channel restoration techniques as used in the construction of the established stream channels would be implemented in the design and construction of the re-established stream channels (Exhibit 6).  Additionally, a 50-foot riparian buffer zone would be established. 

 

Stream Restoration (Rehabilitation) – within the Rattlesnake Hollow Watershed:  To offset the temporal loss of jurisdictional stream channel and wetland resulting from the Fivemile Refuse Facility, the applicant proposes to rehabilitate 4,318 lf of intermittent stream channel along Rattlesnake Hollow (Exhibit 7).  Rattlesnake Hollow is located in an adjacent hollow immediately south of the proposed project. The headwaters of Rattlesnake Hollow (approximately 230 acres) are in good condition; however, below this point is a pre-existing valley fill with a rock chimney underdrain that pirates hydrology subsurface until it reaches the toe of the valley fill.  Restoration efforts would include sealing the rock chimney underdrain and creating a stream channel on top of the valley fill using reference reach data collected upstream of the valley fill (Exhibits 8 through 13).  A 100-foot riparian buffer zone would be established along the rehabilitated section of Rattlesnake Hollow.  These rehabilitation efforts within Rattlesnake Hollow would provide an ecological lift within the watershed.   The stream restoration efforts are proposed to be initiated prior to, or concurrent with, the proposed Fivemile Refuse Facility.   

Stream and Wetland Establishment (Creation) - within the Rattlesnake Hollow Watershed:  To offset the temporal loss of jurisdictional stream channel and wetland resulting from the Fivemile Refuse Facility, the applicant proposes to establish a minimum of 0.44 acres of emergent (Exhibits 7 and 14), jurisdictional wetland and 50 lf of jurisdictional stream channel (that will connect the wetland with Rattlesnake Hollow).  A 100-foot riparian buffer would be established around the stream channel and wetland.  Establishment efforts within Rattlesnake Hollow would provide an ecological lift within the watershed.  The stream restoration efforts are proposed to be initiated prior to, or concurrent with, the proposed Fivemile Refuse Facility.   

 

The proposed CMP is open for comment and is subject to change based on comments received.  After review of all submitted information, the Corps will determine appropriate mitigation, in the event a decision is made to issue a permit.   

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 project was reviewed by the West Virginia State Historic Preservation Officer (SHPO) to determine if the project would result in impacts to archeological resources and/or architectural resources (properties) listed on or eligible for inclusion on the National Register of Historic Places (National Register).   In a letter dated August 23, 2007, the SHPO stated that based on the 2002 Phase I survey there are no archaeological sites or architectural resources within the proposed project that are eligible for or listed in the National Register. 

 

Based on this information, the Corps has determined the proposal would have no effect on properties listed or eligible for listing in the National Register.  This public notice serves as coordination with the SHPO, pursuant to Section 106 of the National Historic Preservation Act.  If the SHPO has new information and believes that the Corps proposed permitting action may potentially affect properties listed or eligible for listing in the National Register, it is requested the SHPO provide such information. 

 

ENDANGERED/THREATENED SPECIES REVIEW:  Two federally listed endangered species, the Indiana bat (Myotis sodalis) and Virginia big-eared bat (Corynorhinus townsendii virginianus) may occur within the project area.  The applicant retained the services of Mountain State Biosurveys, LLC, to complete a survey to determine the presence or probable absence of the Indiana bat and the Virginia big-eared bat within the proposed project area.  Two (2) mist net survey sites were selected and surveyed between July 29 and July 30, 2007.  No Indiana bats or Virginia big-eared 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 expired on May 15, 2012.  Based on this information, the Corps has determined that the project as proposed may affect but is not likely to affect the Indiana bat, Virginia big-eared bat or its designated critical habitat.  This Public Notice serves as coordination with the United States Fish and Wildlife Service for any additional information they may have concerning the project’s potential effect on federally listed threatened and endangered species pursuant to Section 7 of the Endangered Species Act of 1972 (as Amended).   

 

PUBLIC INTEREST REVIEW AND CUMMULATIVE 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 the guidelines published by the United States Environmental Protection Agency pursuant to Section 404(b)(1) of the CWA.  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 of the people. 

 

The project lies within the Kanawha River (050500060404) 12-digit hydrologic unit code watershed.  The Corps is assessing the potential cumulative effects that the proposed Fivemile Refuse Facility 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-2013-127-KAN

            502 Eight 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 the above, please contact Samantha Dailey of the Energy Resource Branch at (304) 399-5610.