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LRH 2013-435

Published Feb. 10, 2014
Expiration date: 3/11/2014

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

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 for the proposed discharge of fill material into waters of the United States (U.S.). A copy of the application, including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.), is available for review in the Dillon Lake Field Office, by appointment. The proposed discharge is in conjunction with the Oxford Mining Company’s D-2387-2 Surface Mining Control and Reclamation Act of 1977 (SMCRA) application.

 APPLICANT: Oxford Mining Company, Post Office Box 135, Strasburg, Ohio 44680-8902

LOCATION: The proposed project is located within Sections 25 and 31, Union Township, Township 8 North, Range 5 West, within Belmont County south of Township Road 260 (Wilson Road), east of County Road 98 (Badgersburg Road) and north of Township Road 261 (Taylor Road).  The proposed project area is situated at latitude 40.0485 and longitude -81.0929 on the OH-Bethesda USGS 1:24K quadrangle. The proposed project would result in the discharge of dredged and/or fill material into unnamed tributaries of Stillwater Creek, a tributary of the Tuscarawas River, a traditional navigable water of the U.S. See project Location Map in Figure 1, Preferred, Minimal and Non-Degradation Alternative Maps in Figures 2, 3 and 4, and the Aquatic Features Map.

DESCRIPTION OF THE PROPOSED WORK: The applicant proposes to discharge 350 cubic yards of fill material into waters of the U.S. associated with surface mining the Number 9 Meigs and Number 11 Waynesburg coal seams.  The project would yield approximately 265,000 tons of coal under the preferred alternative. The proposal would result in the discharge of approximately 350 cubic yards of fill material into a total of 1,926 lf of stream channel (1564 lf intermittent, 362 lf ephemeral) and 0.27 acre of two wetlands.  The proposed discharges would result in a permanent loss of waters of the U.S.

ALTERNATIVE ANALYSIS: As a result of the applicant’s preferred alternative, fill material would be discharged into 1,926 lf of jurisdictional stream channel and 0.27 acre of jurisdictional wetland. The project does not require access or proximity to or siting within waters of the U.S. to fulfill its basic purpose and is considered a non-water dependent activity. The Section 404(b)(1) Guidelines state that for non-water dependent activities, practicable alternatives that do not involve waters of the U.S are presumed to be available, unless clearly demonstrated otherwise. Therefore, no permit will be issued until we have determined that the alternative analysis clearly demonstrates that upland alternatives are not available to achieve the overall project purpose. The applicant is required to provide an alternatives analysis that must overcome the presumption prior to receiving authorization for the placement of fill material. The applicant has submitted the required alternatives analysis and it is currently under review. Alternatives evaluated by the applicant include the preferred, minimal and non-degradation alternatives within the proposed permit limits.

AVOIDANCE AND MINIMIZATION: The applicant has indicated that there is no practicable alternative for the proposed project that completely avoids the discharge of fill material into waters of the U.S.

COMPENSATORY MITIGATION PLAN: Currently, there are no approved mitigation bank stream credits available within the watershed and no active in lieu fee program(s) within Ohio. The applicant proposes permittee-responsible on-site and in-kind mitigation to compensate for the permanent and temporal loss of jurisdictional stream channels. The applicant has chosen to offer mitigation in the form of permittee-responsible stream restoration (re-establishment) of 1,926 linear feet of stream and the creation of 0.405 acre of wetland on site to compensate for permanent loss of jurisdictional stream channels and wetlands associated with the current proposal. Please see the attached Stream Reconstruction and Wetland Mitigation Map and Jurisdictional Wetland Mitigation Plans.

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 Ohio Environmental Protection Agency.

HISTORIC AND CULTURAL RESOURCES: The proposed project was reviewed by the Corps to determine if the project would result in impacts to archeological resources and/or architectural resources (properties) listed on or eligible for inclusion on the National Register of Historic Places (National Register). A preliminary review of the information submitted by the applicant indicates areas within the proposed permit limits warrant further investigation to determine if historic or cultural resources are present.  The Corps has not made an effect determination for historic properties at this time. This public notice serves as coordination with the SHPO, pursuant to Section 106 of the National Historic Preservation Act. If the SHPO has new information and believes that the Corps proposed permitting action may potentially affect properties listed or eligible for listing in the National Register, it is requested the SHPO provide such information.

ENDANGERED/THREATENED SPECIES REVIEW: One federally listed endangered species, the Indiana bat (Myotis sodalis) and one proposed endangered species, the Northern Long–Eared bat (Myotis septentrionalis) may occur within the project area. The applicant retained the services of Tragus Environmental Consulting, Inc. to complete a survey to determine the presence or probable absence of the Indiana bat within the proposed project area. Surveys were conducted July, 15, 16, and 17, 2010. No Indiana bats were captured during the survey. One Northern Long-Eared bat was captured July 17, 2010. The proposed project area is within intact woodland and potential bat foraging and flight corridors.  Based on this information, the Corps has determined that the project as proposed may affect but is not likely to adversely affect the Indiana bat and may affect the Northern Long-Eared bat. This Public Notice serves as coordination with the United States Fish and Wildlife Service for any additional information they may have concerning the project’s potential effect on federally listed threatened and endangered species pursuant to Section 7 of the Endangered Species Act of 1972 (as Amended).

PUBLIC INTEREST REVIEW AND CUMMULATIVE 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 the guidelines published by the United States Environmental Protection Agency pursuant to Section 404(b)(1) of the CWA. 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 Stillwater Creek (050400011304) 12-digit hydrologic unit code watershed. The Corps is assessing the potential cumulative effects that the proposed Surface Mining may have on public interest factors when considered with other activities in that 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 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-2013-435-UT Stillwater Creek, 502 8th Street, Huntington WV, 25701. 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 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 contact Sheila Newman of the Energy Resource Branch at (740) 454-2225 ext 5.