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LRH-2011-40-TUG

Published July 19, 2013
Expiration date: 8/19/2013

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 the Section 401 Water Quality Certification for the following application.

APPLICANT: Pinnacle Mining Company, LLC

P.O. Box 338

Pineville, West Virginia 24874

LOCATION: The proposed project is located approximately 2.5 miles northeast of Davy, in McDowell County, West Virginia. The project can be found near north latitude 37.50403 and west longitude 81 .61982. The project was constructed in unnamed tributaries (UT) to Davy Branch. Davy Branch is a direct tributary to the Tug Fork, a traditional navigable water. See project Location Map in Exhibit 1.

PROJECT HISTORY: Pinnacle Mining Company, LLC (Pinnacle Mining) constructed an air shaft to an existing deep mine within UTs to Davy Branch in 2008 and 2009. The air shaft site, referred to as the No. 50 Mine- Asco Shaft Site (Asco Shaft Site), is 5.68 acres and includes the ventilation shaft and attendant features, drainage control structures, access roads, and temporary overburden storage areas. It was determined the construction of the Asco Shaft Site discharged fill material into 1,991 feet of waters of the United States (U.S.) without authorization.

The applicant has requested after-the-fact authorization to maintain the completed discharges of dredged and/or fill material into the aforementioned waters of the United States. As required by the rules and regulations governing the Department of the Army permit program, our office has determined that, since the completed work does not present an immediate threat to life or property, an after-the-fact application would be accepted and processed. All investigations and legal proceedings regarding this unauthorized activity will be suspended pending the outcome of the permit review process. This application will be evaluated on its own merits and no consideration will be given to the applicant's unauthorized work activities or prior expenditures.

DESCRIPTION OF THE COMPLETED WORK:Construction of the Asco Shaft Site resulted in the discharge of fill material into 214 feet of ephemeral stream and l,777 feet of perennial/intermittent stream. A current Site Plan and the preliminary jurisdictional determination Aquatic Resources Map is included as Exhibit 2 and Exhibit 3, respectively. The stream impacts are identified below in Table 1.

Table 1

Asco Shaft Site Impact Summary

Stream Name

Perennial/Intermittent

Ephemeral

Tributary A1

1,777

Tributary A2

96

Tributary A3

81

Tributary A4

37

Sub-Total

1,777

214

Total

l ,991

The applicant indicated the reclamation of the Asco Shaft Site is projected to begin in 2027. Reclamation of the site includes the removal of the temporary overburden storage areas, and backfilling and grading of all disturbed areas.

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 till 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. The applicant has not submitted an alternatives analysis for review.

AVOIDANCE AND MINIMIZATION:The applicant indicated that the Asco Shaft Site was constructed with Best Management Practices and the project was constructed under the guidelines set forth in the Surface Mining Control and Reclamation Act Permit U-0204-83 IBR No. 32 and the Section 402 National Pollution Discharge Elimination System Permit WV009000 Modification No. 54.

COMPENSATORY MITIGATION PLAN:The applicant has submitted a conceptual compensatory mitigation statement to compensate for the completed discharge of fill material into waters of the U.S. The applicant has indicated the West Virginia Stream and Wetland Valuation Metric version 2.0 would be used to evaluate the completed impacts and the proposed mitigation. References reaches would be utilized to approximate the baseline conditions of the impacted streams. The applicant proposes to utilize a watershed approach to develop the compensatory mitigation that may consist of permittee responsible mitigation and the use ofthe 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 Properties Officer, pursuant to Section 106 of the National Historic Preservation Act, concerning the project's potential impacts on historic properties listed or eligible for listing on the National Register of Historic Places. The applicant did not provide any information concerning historic properties. The Huntington District has determined Section 106 requirements have not been met.

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 federally listed endangered species, the Indiana bat (Myotis sodalis) may occur within the proposed project area. The applicant did not provide any information concerning threatened or endangered species. The Huntington District has determined Section 7 requirements have not 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)(l) 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 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 activity must be balanced against its reasonably foreseeable detriments. All factors that may be relevant to the activity 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 Spice Creek-Tug Fork (05070201 0205) 12-digit hydrologic unit code watershed. The Corps is assessing the potential cumulative effects that the stream impacts 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 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 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 activity. 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-2011-40-TUG

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 Jacob Siegrist of the Energy Resource Branch at (513) 825-4489.