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LRH-2009-161-BCR

Published May 9, 2013
Expiration date: 6/7/2013

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 United States Army Corps of Engineers (Corps) request to the West Virginia Department of Environmental Protection (WVDEP) to act on Section 401 Water Quality Certification for the following application.

 

APPLICANT: Coal River Mining, LLC, Post Office Box 58370, Charleston, West Virginia  25358

LOCATION: The proposed project would be located southwest of Emmons at 123 Shoal Branch Road, Peytona District, Boone County, West Virginia.  Specifically, the proposed project area would be situated at north latitude 38° 11’ 52” and west longitude 81° 45’ 34” on the Julian and Racine 7.5-minute quadrangles (Figures 1 and 2 of 9).  The proposed project would result in the discharge of fill material into River Fork and some of its unnamed tributaries.  River Fork is a tributary of Fork Creek, a direct tributary of the Big Coal River, a traditional navigable water of the United States.

 

DESCRIPTION OF THE PROPOSED WORK: The applicant proposes to construct a slurry impoundment (Preparation Plant Utility Area No. 1) which would result in the discharge of fill material into waters of the United States (U.S.) associated with the disposal of coarse and fine coal refuse material generated from processing coal at a nearby plant (Fork Creek Preparation Plant).  The required Surface Mining Control and Reclamation Act (SMCRA) Permit O-5007-11 was approved by the WVDEP on March 11, 2013.  Based on information received from the applicant, the purpose of the proposed project is to allow the permanent storage of coarse and fine coal refuse material generated by coal processing of the No. 2 Gas, Stockton, and Coalburg coal seams at the applicant’s existing preparation plant.

 

The proposed slurry impoundment construction activities would result in the permanent and temporary discharge of fill material into a total of approximately 24,284 linear feet (lf) of jurisdictional stream channel within the River Fork watershed, as follows: 17,272 lf of intermittent stream and 7,012 lf of ephemeral stream.  Construction of the refuse slurry impoundment would result in the permanent discharge of fill material into 16,880 lf of intermittent stream and 7,012 lf of ephemeral stream.  At full capacity, the proposed slurry impoundment would contain 84,000,000 tons of coarse and fine refuse generated from processing coal at the Fork Creek Preparation Plant.  Sediment pond (Sediment Pond A) construction would result in the temporary discharge of fill material into approximately 392 lf of intermittent stream.  Table 1 provides an impact summary for the proposed discharges of fill material associated with the Preparation Plant Utility Area No. 1 project.  Figure 3 of 9 shows the plan view of the proposed project and Figures 4 and 5 of 9 show example cross sections of the proposed project.  Figure 6 of 9 shows a map of the streams as referenced in Table 1.

Table 1

Preparation Plant Utility Area No. 1 Stream Impact Summary

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)

Main Channel (River Fork=RF)

---

10,700

650

---

---

---

RF Pond*

---

---

---

---

392

---

RF.1

---

300

770

---

---

---

RF.3

---

---

550

---

---

---

Stream V

---

2,165

900

---

---

---

Stream V.1

---

---

250

---

---

---

Stream V.2

---

---

100

---

---

---

Stream V.3

---

---

900

---

---

---

Stream V.4

---

300

701

---

---

---

Stream U

---

1,800

730

---

---

---

Stream U.1

---

---

220

---

---

---

Stream U.2

---

---

60

---

---

---

Stream U.3

---

---

40

---

---

---

Stream U.4

---

---

40

---

---

---

Stream T

---

810

626

---

---

---

Stream T.1

---

---

100

---

---

---

RF.7

---

650

315

---

---

---

RF.7 A

---

100

60

---

---

---

RF.7 B

---

55

---

---

---

---

SUBTOTAL

---

16,880

7,012

---

392

---

TOTAL

24,284

*Refers to length of the main stem of River Fork that would be impacted by proposed Sediment Pond A

AVOIDANCE AND MINIMIZATION: The applicant indicated that there is no practicable alternative for the proposed project that completely avoids impacts to waters of the U.S.  However, the applicant’s preferred alternative would incorporate several design standards to minimize adverse impacts to waters of the U.S.  These would include the temporary construction of a sediment pond downstream of the proposed toe of the refuse impoundment to further prevent downstream impacts due to potential acid-forming materials in the coal refuse.  Design standards would also include methods to ensure fine coal refuse remains devoid of oxygen after disposal in the impoundment to prevent the precipitation of iron pyrite and other acid-forming materials.  The applicant would also add chemical treatments (such as magna lime or pebble lime) as necessary to further prevent the precipitation of acid-forming constituents.  Other minimization measures are contained in the applicant’s Environmental Information Document, available for review in the Huntington District’s Regulatory Office.

 

COMPENSATORY MITIGATION PLAN: A Compensatory Mitigation Plan (CMP) describing the proposed on- and off-site and in-kind permittee-responsible mitigation has been prepared by the applicant, and includes a combination of stream establishment, re-establishment and enhancement opportunities within the Fork Creek watershed.  The applicant has employed the use of the West Virginia Stream and Wetland Valuation Metric version 2.0 (WV SWVM) to evaluate whether the proposed mitigation would adequately off-set the impacts associated with the proposed Preparation Plant Utility Area No. 1 project.  The proposed discharges of fill material would result in a total of 19,091.85 WV SWVM debits.  Table 2 summarizes the proposed compensatory stream mitigation.  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

Preparation Plant Utility Area No. 1 Compensatory Mitigation Summary

Proposed Stream Mitigation

Length (linear feet)

WV SWVM Credits

Stream Establishment

15,691

20,528.04

Stream Re-establishment via Mine Reclamation (Sediment Pond and Sediment Transport)

392

*

Stream Enhancement

32,678

3,559.56

TOTAL

48,851

24,087.60

*WV SWVM credits not calculated as the sediment pond is proposed to last beyond the 10-year monitoring period for the remaining mitigation areas.  The applicant determined WV SWVM debits of 662.42 due to construction of the sediment pond and sediment transport.

Stream Re-establishment (Sediment Pond and Sediment Transport): As part of site reclamation, the applicant proposes to re-establish the stream reach (within River Fork) that would be temporarily impacted by the installation of Sediment Pond A and sediment transport (from the toe of the proposed refuse impoundment).  Re-establishment of this temporarily impacted stream reach would result in re-establishment of approximately 392 lf of intermittent stream.  The applicant’s CMP states that this stream reach would be reconstructed with natural channel design techniques to off-set the temporal loss of high gradient stream channel within the River Fork watershed.  Riparian buffers would be established with native woody and herbaceous species.  Construction of this channel would provide organic matter input to support the aquatic food web within the watershed.  Figure 7 of 9 illustrates the proposed re-established channel with a step/pool configuration.

 

Stream Establishment: To partially off-set the permanent loss of high-gradient jurisdictional stream channel from construction of the refuse impoundment, the applicant proposes to establish approximately 15,691 lf of unnamed tributaries of Hill Fork, Hewitt Creek and the Little Coal River on an adjacent, fully reclaimed surface mine (the applicant’s Surface Mine 5A (SMCRA permit S-5032-08)) and the hillsides below this reclaimed surface mine.  A total of 18 stream channels would be established on this adjacent area, with all streams anticipated to be intermittent by the end of the proposed ten-year monitoring period.  The applicant’s CMP states that these channels would be established with natural channel design principles 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.  Figure 8 of 9 illustrates the proposed established reach for Channel 1.  The plan for the remaining proposed established reaches is similar to this figure.

Stream Enhancement: The applicant proposes to improve bank stability, enhance in-stream habitat, enhance riparian vegetation and conduct other mitigation which would improve stream functions and habitat in the Wilderness Fork, Long Hollow, Dave Fork, Mech Fork, Hog Trough Hollow, Peter Cave Fork and Jim Lick Fork watersheds, located south-southwest of the proposed project site.  All of the streams proposed for enhancement (total of 17) are intermittent.  Figure 9 of 9 illustrates the enhancements proposed to occur on portions of Mech Fork and Hog Trough Hollow.  This figure is typical of the other enhancements proposed for these streams.

 

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 Preparation Plant Utility Area No. 1 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 review of architectural resources (buildings) within the area of the proposed project and submitted the results to the WVDCH for review.  In a letter dated March 1, 2010, the WVDCH stated upon review of the information submitted, they indicated the proposed project would have no effect on architectural resources listed in or eligible for inclusion on the NRHP although the report identified three structures potentially eligible for inclusion on the NRHP.  However, due to the topography of the proposed project area, no impacts to the viewsheds of these three potentially eligible properties would occur due to the proposed project.  The applicant also conducted a Phase I Archaeological Survey of the proposed project area and did not identify any archaeological sites.  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 of the Endangered Species Act of 1972 (as amended).  One (1) federally listed endangered species, the Indiana bat (Myotis sodalis) may occur within the proposed project area.  The applicant retained the services of Compliance Monitoring Labs, Inc. 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 2012.  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)(1) 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 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 Fork Creek of Big Coal River (050500090606) 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-2009-161-BCR

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 of Information 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.