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LRH-2011-799-BCR

Published Oct. 1, 2013
Expiration date: 10/30/2013

TO WHOM IT MAY CONCERN: The following application has been submitted as a request 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 in waters of the U.S.  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.

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 on factors affecting the public interest, in order to better enable us to make a reasonable decision.  We hope you will participate in this process.

APPLICANT:           Jacks Branch Coal Company

                                    782 Robinson Creek Road

                                    Madison, WV 25130

LOCATION:  The proposed project area is located off Route 3, approximately 2.3 miles southwest of Peytona, Boone County, West Virginia (Lat:38° 07’ 10”; Long. 81° 42’ 28”).  The project boundary encompasses the watershed of a tributary to Drawdy Creek of Big Coal River.  See attached Exhibit 1 - General Location map.   Exhibit 2 shows the proposed expansion area and the location of waters of the U.S. that would receive fill material.

DESCRIPTION OF THE PROPOSED WORK:  The applicant proposes to discharge fill material into waters of the U.S. in conjunction with the lateral and downstream expansion of the existing Crooked Run Refuse Impoundment.  The proposal was approved by the WVDEP on May 6, 2013 under mining permit O-0036-82, Incidental Boundary Revision 8) pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA).   

The applicant proposes permanent discharges of fill material into 5,607 feet of streams and their abutting four emergent wetlands (0.28 acre), and 0.62 acre of open water (existing sediment control pond) during placement of dry coarse and fine refuse material generated by the applicant’s adjacent coal preparation plant.  Each on-site wetland is located on a previously disturbed area.  An additional 2,610 feet of stream would receive fill material during construction of three in-stream sediment control ponds (Ponds 7, 8, and 9). 

The applicant has submitted an environmental information document describing existing conditions, environmental effects that would reasonably be expected to occur as a result of the proposed discharge of fill material into waters of the U.S., and proposed environmental protection measures. 

ALTERNATIVES ANALYSIS:  This project is not water dependent; therefore, the applicant is required to show that other less damaging practicable alternatives, which do not require placing fill material into waters of the U.S., are not available.  No permit will be issued unless the applicant clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose. Based on the applicant’s information, the overall project purpose is to place additional fine and course coal refuse material generated by the adjacent coal preparation plant.  The applicant’s proposed discharge of fill material into waters of the U.S. at the existing refuse fill area (as proposed) would provide for continued operation of the existing facility for another 17 years.  The applicant conducted a siting study on ten off-site locations within the Drawdy Creek watershed and adjacent White Oak Creek watershed.  The applicant provided the alternatives analysis study to this office, which is currently under review. 

MINIMIZATION OF UNAVOIDABLE IMPACTS TO WATERS OF THE U.S.:  If waters of the U.S. cannot be avoided, the discharge of fill material into waters of the U.S. must be minimized.  The applicant’s analysis states the expansion sequence at the project site was designed to minimize impacts to waters of the U.S. to the extent practicable while meeting the stated project purpose.  The project proposal map indicates maximum practicable use of the area updrain of the toe of the existing fill area. 

COMPENSATORY MITIGATION PLAN (CMP): To compensate for the unavoidable discharge of fill material into waters of the U.S. that would occur as part of the project, the applicant submitted a CMP (dated August 2013).  Due to the anticipated length of time the proposed ponds would be in operation, the applicant treated all proposed on-site impacts as permanent and has not proposed on-site mitigation.  The CMP therefore consists entirely of off-site mitigation to waters in nearby watersheds, as described below:

(a). The CMP proposes to reconnect eight streams and their abutting five wetlands presently isolated due to past mining (leaving excavated benches and filled areas).  Exhibit 3 shows the location of these streams in relation to the project site.  Constructing new stream channels would result in reconnecting 1,877 feet of ephemeral stream, 5,711 feet of intermittent stream, and 0.51 acre of abutting emergent and forested wetlands to the existing stream tributary system.  Stream construction would be completed within one year of initiating the proposed project stream fills.  As stated in the CMP, previous activity has “created areas where the former channel has been blocked and/or buried and functional connectivity is lost.  Reconnection of the streams and wetlands would involve removing the barriers to flow and re-establishing a natural, functional tributary in its approximate original location.”   This work would “consist primarily of excavation, channel and bank stabilization, and planting.”  “…alignments and grades have been chosen in order to maximize sustained flows within these reaches.  The cross sections…will typically be excavated to match the existing channel upstream of the work area, unless otherwise specified on the Figures.” [See attached Exhibits 4 through 9]  Removing existing barriers to flow, increasing channel gradient, and redirecting the flows into the approximate original natural channel location (where applicable) is designed to facilitate the formation and natural maintenance of a functional connection to the downstream tributary system.  The second phase of the proposed stream development would be the natural development of channel form or cross sections and local features.

Monitoring and adaptive management would be performed in two stages. Stage 1 would include stability monitoring and implementing solutions to any problem areas.  This stage would continue until each constructed reach achieves a dynamic equilibrium.    Each stream mitigation area would be legally protected by each landowner through establishing a legally recorded declaration of restrictive covenants on that portion of the property.

(b)  Preservation: In addition to the above, six existing wetlands (see chart below), cumulatively totaling 1.88 acres, would be preserved by each landowner by establishing a legal declaration of restrictive covenants on that portion of each property.  Field evaluations indicate these wetlands were formed due to past mining and road disturbances.

WETLAND  IDENTITY

TYPE

SIZE

SETTING

WL RFDC-1: Right Fork Rock Cr.

Emergent

0.066 acre

Along road. Area previously mined.

WL RFDC-2: Right Fork Rock Cr.

Emergent

0.006 acre

Formed due to adjacent road.

WL DC-1: Drawdy Creek

Emergent

0.016

Formed adjacent to road and railroad.

WL DC-2: Drawdy Creek

Emergent

0.015

Formed adjacent to road and railroad.

WL B1: trib of Drawdy Creek

Forested

0.152

In a reclaimed pond area.

WL 5F: abutting stream UTDC-T5F

Forested

0.018

Located on old mined bench.

 

The CMP includes baseline conditions of the waters involved, and anticipated post-project stream conditions.  The applicant used the Corps’ West Virginia Stream & Wetland Valuation Metric- Version 2 (SWVM) to evaluate present and anticipated post-mitigation conditions and functional capacity of all waters involved, and to determine the appropriate amount of compensatory mitigation.  As a proposed performance standard, the anticipated SWVM mitigation credits that would be gained by the CMP work would be equal to or greater than the proposed impact debits.

A complete copy of the applicant’s application, alternatives analysis, environmental information document, and proposed CMP is available for review in the Huntington District’s Regulatory office, by appointment. 

WATER QUALITY CERTIFICATION: An individual Section 401 Water Quality Certification (WQC) is required for this activity.  The applicant has applied for WQC with the WVDEP and it is currently pending.

HISTORIC AND CULTURAL RESOURCES:  This project must be reviewed to determine any potential effects to properties eligible for or listed in the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act.  The applicant provided correspondence from the West Virginia Historic Preservation Office (SHPO) (reference FR# 12-100-BO).  By letter dated December 2, 2011, the SHPO stated that, based on aerial photographs, the proposed IBR#8 area lies along steep slopes, some of which has been previously disturbed.  Therefore, the SHPO believes it is unlikely that intact deposits will be encountered within the project area, and believes there are no archaeological resources in the proposed IBR#8 area listed in or eligible for listing in the NRHP.  By letter dated January 9, 2012, the SHPO stated, based on a review of additional information provided, that there are no potentially historic buildings or structures within view of the proposed project area and it is their opinion that the proposed project would have no impact to architectural resources eligible for or included in the NRHP.  Based on this information and a review of the current NRHP, the Corps has determined that the proposed project would have no effect on eligible or listed properties.  This public notice will serve as coordination with the SHPO concerning any additional information they may have on the project's potential impacts on historic properties listed on or eligible for listing on the NRHP.

ENDANGERED/THREATENED SPECIES REVIEW (Per Section 7 of the Endangered Species Act):  The proposed project lies within the natural range of the federally listed endangered Indiana bat (Myotis sodalis).   A summer survey and winter habitat survey was performed on the project site on August 4 and 6, 2012, which found no Indiana bat and no potential winter habitat.  Pursuant to a national programmatic 1996 Biological Opinion and Conference Report (’96 BO) between the U.S. Office of Surface Mining  and the U.S. Fish & Wildlife Service regarding federally listed threatened and endangered species, the WVDEP determined, by letter dated September 25, 2012, that the survey followed current Guidelines (covering 103.13 acres) was representative of the proposal area, and concluded that the project is not likely to adversely affect federally-listed endangered and threatened species.  

The Corps believes that, based on the above information and the current list of threatened/endangered species, the proposed project is not likely to adversely affect the Indiana bat or its critical habitat, and would have no effect on any other federally listed species.  This public notice serves as coordination with the U.S. Fish and Wildlife Service concerning federally listed threatened or endangered species.  If the Service believes any potential effects to federally listed species would be attributable to the Huntington District's proposed permitting action, it is requested the Service provide any additional information pursuant to Section 7 of the Endangered Species Act.

PUBLIC INTEREST REVIEW: 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 Drawdy Creek-Big Coal River 12-digit hydrologic unit 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 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 PUBLIC 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-2011-799-BCR

502 Eighth 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, may be 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 Richard Berkes of the Energy Resources Branch at 304-399-5610.