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LRH-2011-44-GUY

Published May 16, 2013
Expiration date: 6/16/2013

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:           Carbon Resources Development, Inc.

                                3324 Pennsylvania Avenue, Suite 222

                                Charleston, West Virginia  25302

LOCATION: The proposed project would be located approximately 1.5 miles north of Maben in the Slab Fork District of Raleigh and Wyoming Counties, West Virginia.  Specifically, the proposed project area would be situated at north latitude 37° 39’ 28” and west longitude 81° 22’ 21” on the McGraws and Lester 7.5-minute quadrangles (Figures 1 and 2 of 8).  The proposed project would result in the discharge of fill material into unnamed tributaries of Slab Fork.  Slab Fork is a direct tributary of the Guyandotte River, a traditional navigable water of the United States.

 

DESCRIPTION OF THE PROPOSED WORK: The applicant proposes to construct and operate a coal preparation plant (Maben Preparation Plant), refuse disposal area and railroad load-out facility which would result in the discharge of fill material into waters of the United States (U.S.).  The required Surface Mining Control and Reclamation Act (SMCRA) Permit O-3025-12 was approved by the WVDEP on April 9, 2013 for the Maben Preparation Plant.  The required SMCRA U-3009-12 for the Maben Mine No. 1 underground mine was approved by the WVDEP on January 7, 2013 (coal from this mine would be processed at the Maben Preparation Plant).  The required SMCRA O-3012-12 for the Maben Refuse Disposal Area (which would be used for coal refuse generated from processing at the Maben Preparation Plant) is currently pending with the WVDEP.  Based on information received from the applicant, the purpose of the proposed project is to facilitate the extraction, processing and transportation to market of metallurgical-grade coal from the applicant’s Pocahontas No. 3 coal seam leasehold.  Metallurgical coal is used primarily to generate coke, which is a necessary material for the construction and manufacturing of steel.

The proposed preparation plant and refuse disposal area construction, disposal of coal refuse and installation of rail siding to facilitate construction of a railroad would result in the permanent discharge of fill material into a total of approximately 9,737 linear feet (lf) of jurisdictional stream channel, 1.357 acres (ac) of wetland and 0.265 ac of open water within the Slab Fork watershed.  Construction of the coal preparation plant and refuse disposal area would result in the permanent discharge of fill material into 3,323 lf of perennial stream, 1,956 lf of intermittent stream, 108 lf of ephemeral stream, 0.869 ac of wetland and 0.265 ac of open water.  The installation of rail siding would result in the permanent discharge of fill material into 235 lf of perennial stream, 225 lf of ephemeral stream and 0.456 ac of wetland.  Finally, the proposed disposal of coal refuse generated from the preparation plant would result in the permanent discharge of fill material into 1,580 lf of perennial stream, 1,342 lf of intermittent stream, 968 lf of ephemeral stream and 0.032 ac of wetland.  The proposed discharges of fill material associated with construction of the preparation plant, refuse disposal area and rail siding would occur upon receipt of the Section 404 permit (should one be granted).  The proposed discharges of fill material into waters of the U.S. associated with disposal of coal refuse would not occur until approximately 15 years after project initiation (up to that point, the applicant would utilize extensive upland and non-jurisdictional areas to dispose of refuse).  All phases of the project, including final reclamation of the site, would be completed in approximately 30 years.  Tables 1 and 2 provide impact summaries for the proposed discharges of fill material associated with the Maben Mine Complex project.  Figure 3 of 8 shows the plan view of the proposed project.  Figure 4 of 8 provides a map of the streams, wetlands and open water on the proposed project area as referenced in Tables 1 and 2.


 


Table 1

Maben Mine Complex Stream Impact Summary

 

Stream Name

Perennial

Intermittent

Ephemeral

Total

 

Proposed Activity

 

Feet

 

Acres

 

Feet

 

Acres

 

Feet

 

Acres

 

Feet

 

Acres

Cubic

Yards

 

UT of Slab Fork D

 

775

 

0.089

 

-

 

-

 

-

 

-

 

775

 

0.089

 

70.9

Prep Plant Construction and Refuse

Disposal Area Development

UT of Slab Fork D

1,580

0.159

-

-

-

-

1,580

0.159

122.4

Refuse Placement, Right Fork (UTs

of Slab Fork D) and Final Fill Face

 

1st LUT of UT of Slab Fork D

 

114

 

0.006

 

416

 

0.012

 

-

 

-

 

530

 

0.018

 

13.0

Prep Plant Construction and Refuse

Disposal Area Development

RUT C of UT of Slab Fork D

-

-

382

0.024

-

-

382

0.024

46.0

 

 

 

Refuse Placement, Right Fork (UTs of Slab Fork D) and Final Fill Face

RUT B of UT of Slab Fork D

-

-

-

-

88

0.001

88

0.001

0.3

RUT A of UT of Slab Fork D

-

-

960

0.043

315

0.017

1,275

0.060

83.3

1st RUT of RUT A of UT of Slab Fork D

-

-

-

-

110

0.001

110

0.001

0.5

1st LUT of RUT A of UT of Slab Fork D

-

-

-

-

435

0.016

435

0.016

16.5

2nd LUT of RUT A of UT of Slab Fork D

-

-

-

-

20

0.001

20

0.001

0.3

UT of Slab Fork B

-

-

1,068

0.120

-

-

1,068

0.120

151.1

 

 

 

Prep Plant Construction and Refuse

Disposal Area Development

UT of Slab Fork C

-

-

130

0.002

-

-

130

0.002

0.9

UT of Slab Fork A

1,734

0.085

34

0.002

-

-

1,768

0.087

64.0

UT #2 of Rt. 54 WL Area

700

0.023

308

0.017

-

-

1,008

0.040

36.9

1st RUT of UT #2 of Rt. 54 WL Area

-

-

-

-

92

0.003

92

0.003

3.0

UT #1 of Rt. 54 WL Area

-

-

-

-

16

<0.001

16

<0.001

0.2

Old Slab Fork

102

0.019

-

-

-

-

102

0.019

18.5

 

 

Installation of Norfolk Southern Rail

Siding

Channel A of Slab Fork

-

-

-

-

76

<0.001

76

<0.001

1.4

Measle Fork

133

0.033

-

-

-

-

133

0.033

12.5

Channel D of Slab Fork Ephemeral Drain

-

-

-

-

57

<0.001

57

<0.001

0.8

Channel E of Slab Fork

-

-

-

-

92

<0.001

92

<0.001

0.7

Sub-Total Prep Plant Construction and Refuse

Disposal Area Development

 

3,323

 

0.203

 

1,956

 

0.153

 

108

 

0.004

 

5,387

 

0.360

 

340.0

 

Sub-Total Rail Siding Installation

235

0.052

0

0.000

225

0.003

460

0.055

33.9

Sub-Total Refuse Placement

1,580

0.159

1,342

0.067

968

0.036

3,890

0.262

269.3

Total Direct Impacts

5,138

0.414

3,298

0.220

1,301

0.043

9,737

0.677

643.2

 


 

Table 2

Maben Mine Complex Wetland/Open Water Impact Summary

 

Wetland/Open Water Designation

 

Wetland

Acres

Open Water Acres

 

Proposed Activity

Route 54 Wetland 1

0.236

-

 

 

 

 

Prep Plant Construction and Refuse Disposal Area Development

Route 54 Wetland 2

0.200

-

UT 2 of Route 54 Wetland

0.008

-

Slab Fork A Wetland

0.060

-

Slab Fork C Wetland

0.158

-

OPW 3

-

0.265

Wetland Slab Fork B

0.018

-

1st LUT of Slab Fork D Wetland

0.189

-

WL 1

0.300

-

Installation of Norfolk

Southern Rail Siding

WL 2

0.156

-

RUT C of Slab Fork D Wetland 1

0.023

-

Refuse Placement, Right Fork

(UTs of Slab Fork D) and

Final Fill Face

RUT C of Slab Fork D Wetland 2

0.009

-

Total

1.357

0.265

 

 

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 U.S., 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.  In addition, the project does not require siting within a special aquatic site (in this case wetlands) to fulfill its basic purpose.  The Clean Water Act Section 404(b) (1) Guidelines state that for non-water dependent activities, practicable alternatives that do not involve special aquatic sites are presumed to be available unless clearly demonstrated otherwise.  Therefore, the applicant is required to provide an alternatives analysis which must overcome that presumption prior to receiving authorization for the discharge of fill in the wetlands.  The applicant has submitted an alternatives analysis for review.

 

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 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 constructing the proposed refuse disposal fill such that it would ultimately cover pre-existing pre-law refuse and eliminating approximately 15,600 feet of pre-law surface mine bench through fill generated from the refuse disposal.  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: The applicant has provided a conceptual Compensatory Mitigation Plan (CMP) describing the proposed on- and off-site and in-kind permittee-responsible and bank credit mitigation has been prepared by the applicant, and includes a combination of the purchase of 1.36 acres of wetland credit from an approved mitigation bank, 9,404 lf of on- and off-site stream establishment and re-establishment and on-site establishment of 1.36 acres of wetland.  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 Maben Mine Complex project.  The proposed discharges of fill material would result in a total of 9,703.4 WV SWVM stream debits and 1.357 WV SWVM wetland debits.  Table 3 summarizes the proposed compensatory mitigation.  All mitigation sites would be monitored by the applicant for at least five years and up to ten years post-construction.  Figures 7 and 8 of 8 show the locations of the proposed on- and off-site 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 3

Maben Mine Complex Compensatory Mitigation Summary

Proposed Mitigation

Length (linear feet)

WV SWVM Credits

Area (acres)

WV SWVM Credits

Wetland Credit Purchase (prior to impacts)

 

 

1.36

1.357

Off-site Stream Establishment (prior to impacts)

4,381 (3,851 perennial & 530 ephemeral

4,746.3

 

 

On-site Stream Re-establishment (after impacts)

1,773 (575 perennial & 1,198 intermittent)

5,161.4*

 

 

On-site Stream Establishment (after impacts)

3,250 (3,065 intermittent & 185 ephemeral)

5,161.4*

 

 

On-site Wetland Establishment (after impacts)

 

 

1.36

1.36

TOTAL

9,404 (4,426 perennial, 4,263 intermittent & 715 ephemeral)

9,907.7

2.72

2.717

*WV SWVM credits associated with total for on-site stream establishment and re-establishment.

Wetland Mitigation Bank Credit Purchase: The applicant would purchase 1.36 acres of wetland credit from the Meadow River Mitigation Bank, which is located just west of Crawley, Greenbrier County, West Virginia.  This bank has been approved to sell credits to offset wetland impacts throughout West Virginia within the Huntington District.  The applicant would purchase these credits prior to initiating discharges of fill material into waters of the U.S. in association with the proposed project.

 

On-Site Stream Re-establishment: As part of site reclamation, the applicant proposes to re-establish stream reaches (unnamed tributaries to Slab Fork) that would be impacted by the discharges of fill material associated with the combined refuse fill.  The applicant has indicated during site reclamation regrade activities, these stream channels would be re-established in the approximate pre-project locations as the currently existing streams.  The applicant has also indicated these channels would be constructed using natural channel design methods.  Riparian buffers would be established with native woody and herbaceous species.

 

On-Site Stream Establishment: Similar to the on-site stream re-establishment, these streams would be established as part of the site reclamation regrade of the area of the proposed combined refuse fill.  The applicant has also indicated these channels would be constructed using natural channel design methods.  Riparian buffers would be established with native woody and herbaceous species.

 

On-Site Wetland Establishment: Similar to the on-site stream mitigation, the applicant has indicated during the site reclamation regrade of the proposed combined refuse fill, emergent wetland features would be established adjacent to or abutting either the on-site established or re-established streams as described above.

 

Off-Site Stream Establishment: The applicant would utilize an immediately adjacent area along an existing abandoned mine land bench to take advantage of existing mine openings, auger holes and groundwater seeps to establish new stream channels in this area.  The applicant would initiate this mitigation work prior to and concurrent with the proposed discharges of fill material into waters of the U.S. in association with the proposed project.  The applicant has also indicated these channels would be constructed using natural channel design methods.  Riparian buffers would be established with native woody and herbaceous species.

 

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 Maben Mine Complex 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.  After the applicant coordinated with the WVDCH, in letters dated April 3, May 21 and September 25, 2012, the WVDCH stated upon review of the information submitted, they indicated the proposed project would have no effect on resources listed in or eligible for inclusion on the NRHP and no further archaeological investigations are warranted for the proposed project.  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 Apogee Environmental and Archaeological, 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 Slab Fork (050701010102) 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-2011-44-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 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.