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LRH-2013-423-GUY

Published July 9, 2013
Expiration date: 8/7/2013

TO WHOM IT MAY CONCERN: The following application has been submitted for a Department of the Army (DA) 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:             Vecellio and Grogan 

                                 2251 Robert C. Byrd Drive

                                Beckley, West Virginia (WV) 25801

LOCATION: The proposed project is located in Laurel Branch and its unnamed tributaries, near Neibert, in Logan County, West Virginia. The proposed fill sites are located at Latitude 37.788875 and Longitude -81.946957 as shown on the attached Drawing 1.

DESCRIPTION OF PROPOSED WORK: The applicant has requested DA authorization to discharge fill material in waters of the United States in conjunction with the construction of the WV State Route 10. The fill areas are required in order to accommodate the storage of excess spoil material generated by excavation of the proposed highway cuts. The Laurel Branch Waste Site would consist of approximately 3.0 million cubic yards of material in three contiguous fill areas into and along four streams. The entire fill area would be constructed with a four-foot thick bottom rock layer consisting of 165,800 cubic yards of fill material. A total of 3,3 7 5 linear feet of four streams would be permanently filled by the proposed project (See attached Table 1 and Drawings 2-4).

ALTERNATIVES ANALYSIS: The applicant is required to show that no other less damaging practicable alternatives, which do not require the discharge of fill material into waters of the United States, are available that would achieve the overall project purpose. The relocated WV State Route 10 project was previously authorized by the Corps and is currently under construction. Other excess fill areas have also been authorized by the Corps for the WV State Route 10 project and available upland sites have been utilized. The applicant has evaluated four on-site configurations as well as two additional off-site locations (Madison Branch and Davy Branch). The Madison Branch site is located on the southern end ofthe WV State Route 10 relocation project and would require a two-mile long haul road crossing multiple properties. The Davy Branch site is located on the northern end of the WV State Route 10 relocation area and would require the relocation of a transmission line that feeds several residential homes. This site would also require additional haul road construction. Hauling excess spoil material off site would also require over 700,000 trips to and from the project site and would extend the construction of the project by 18-24 months beyond the specified completion date ofthe WV State Route 10 project and result in uneconomical costs. Both the Madison and Davy Branch sites were determined to be impracticable by the applicant because of haul road construction, potential time delays and impacts to the local community. The preferred alternative, Laurel Branch, is located in the middle of the WV State Route 10 relocation project area. Potential fill areas can be accessed from both the northern and southern ends of the WV State Route 10 project. No additional haul roads would be required. Therefore, the Laurel Branch location (applicant's preferred alternative) was selected as the most practicable location to fulfill the overall project purpose.

At the Laurel branch location, four alternatives were developed to determine the best configuration to avoid and minimize impacts to waters of the United States. The applicant states that while Alternative 4 has the least amount of impacts to waters of the United States this alternative presents design and construction challenges and is not considered a practicable alternative. This fill would be approximately 500 feet high and result in a fill slope in excess of 150 feet high directly above a cut slope associated with the WV State Route 10 roadway project. This would present challenges for long term stability as well as it is not practicable to haul material to the top of a 500 foot high fill. This haul road would be approximately 3,500 feet in length on a 15% grade. The construction of the fill above the 1,170 foot elevation would also result in fill being placed on another property. Based on their analysis, the applicant has stated their view that due to the steep terrain, availability, proximity to the highway construction, construction feasibility and impacts to waters of the United States, Alternative 3 is the least environmental damaging practicable alternative. The applicant's alternatives analysis is currently under review and is available for public review in the Huntington District Office. A complete copy of the applicant's alternative analysis can be reviewed, by appointment, at the above address. No permit will be issued until the alternative analysis clearly shows that practicable upland alternatives are not available to achieve the overall project purpose.

AVOIDANCE AND MINIMIZATION: In evaluating a project area containing waters of the United States, consideration must be given to avoiding impacts at these sites. A total of 4,920 linear feet of streams, subject to Section 404 of the Clean Water Act regulation, exists on the project site. A voidance and minimization efforts were incorporated into the project development by locating the excess material in raised upper fill areas to maximize storage capacity. The project has been designed to avoid discharging fill material into 1,545 linear feet of streams.

COMPENSATORY MITIGATION PLAN:

To compensate for the permanent discharge of fill into streams, the applicant proposes to purchase 2,858.68 credits from an approved mitigation bank and/or payment into the West Virginia In-Lieu Fee Program.

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 Public Notice serves as coordination with the State Historic Preservation Office (SHPO) in accordance with Section 1 06 of the National Historic Preservation Act. The National Register of Historic Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the NRHP which would be indirectly or directly affected by the proposed work. The Corps has determined the proposed project has no potential to affect any property eligible or potentially eligible for listing on the NRHP. A copy of this Public Notice will be sent to the SHPO for their review. Comments concerning archeological sensitivity of a project area should be based upon collected data.

ENDANGERED AND THREATENED SPECIES: The proposed project is located within the known or historic range of the following federally-protected species: Indiana bat (Myotis sodais) (Endangered). The Corps has consulted the most recently available information and the information provided by the applicant to make an effect determination. The proposed project site contains forested habitat. This forested area would be removed as a result of the proposed project. The applicant has proposed to minimize the potential impact to the Indiana bat through the implementation of a seasonal tree-clearing restriction (between November 15, 2013 and March 31, 2014 ). Therefore, based on the implementation of a tree-clearing restriction, the Corps has determined that the proposed project is not likely to adversely affect the Indiana bat. Based on this information, the proposed project is not likely to adversely affect the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which has been determined to be critical. This Public Notice serves as a request to the United States Fish and Wildlife Service for information they may have on whether any listed or proposed to be listed endangered or threatened species may be present in the area which would be affected by the activity, pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended).

PUBLIC INTEREST REVIEW AND CUMULATIVE 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 guidelines published by the United States Environmental Protection Agency pursuant to Section 404(b )(1) of the Clean Water Act (40 CFR part 230). The decision whether to issue a permit will be based on an evaluation ofthe probable impacts, 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 benefits 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 Rum Creek-Guyandotte River (050701010508) 12-digit hydrologic unit code watershed. The Corps is assessing the potential cumulative effects that the proposed stream impacts from the discharge of fill material into waters ofthe United States may have on public interest factors when considered with other activities in that watershed. The assessment includes use ofthe 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 the subject 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 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 may request, in writing, within the comment period specified in the notice, that a public hearing be held to consider the application. 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 at the beginning 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:

United States Army Corps of Engineers

ATTN: CELRH-RD-S

Public Notice: LRH-2013-423-GUY

502 Eighth Street

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 the provisions of the Freedom of Information Act. Thank you for your interest in our nation's water resources. If you have any questions concerning this Public Notice, please call Sarah Workman ofthe South/Transportation Branch at (304) 399-5710 or by email at sarah.m. workman@usace.army .mil.