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LRH 2004-1152

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 Buckingham Coal Company’s D-2331-1 Surface Mining Control and Reclamation Act of 1977 (SMCRA) application.


APPLICANT: Buckingham Coal Company

Post Office Box 400

Corning, Ohio 43730

LOCATION: The proposed project is located within Section 26, Township 12 North, Range 14 West within Perry County on the east side of State Route 13 between Monroe Township Roads 295 and 298, which is about 2.4 miles south of the intersection of State Route 13 and State Route 155.  The proposed project area is situated at latitude 39.5763 and longitude -82.0649 on the OH-Corning USGS 1:24K quadrangle. The proposed project would result in the discharge of dredged and/or fill material into unnamed tributaries of Sunday Creek, a tributary of the Hocking River, a traditional navigable water of the U.S. See project Location Map in Figure 1, Preferred and Minimal Degradation Maps in Figures 2 and 3, and the Stream Delineation Map in Figure 5.

PROJECT HISTORY: On October 6, 2009, the U.S. Army Corps of Engineers (Corps) – Huntington District authorized Buckingham Coal Company to discharge dredged and/or fill material into 3,488 linear feet (lf) of intermittent stream channel, 1,561 lf of ephemeral stream channel and 0.16 acre of open water impoundment in conjunction with the construction of a slurry impoundment and refuse fill at the Burr Oak Wash Plant.  The project was authorized under an individual permit which expires December 31, 2019.

DESCRIPTION OF THE PROPOSED WORK: The applicant proposes to discharge 407 cubic yards of fill material into waters of the U.S. associated with the construction of a coarse refuse disposal area.  The project would provide additional capacity at the Buckingham Coal Wash Plant for coarse refuse and enable the crest of the existing facility to be raised 70 feet from elevation 910 to elevation 980, resulting in an additional 9 years of fine refuse disposal capacity and 7.6 years of coarse refuse disposal capacity.  The proposed construction of coarse refuse disposal area would result in the discharge of approximately 92.1 cubic yards of fill material into a total of 2,352 lf of stream channel (2,238 lf intermittent, 114 lf ephemeral) and 314.6 cubic yards of fill material into 0.065 acre of stream impoundment (impoundment of Stream 11).  The proposed discharges would result in a permanent loss of waters of the U.S.

ALTERNATIVE ANALYSIS: As a result of the proposal, fill material would be discharged into 2,352 lf of jurisdictional stream channel and 0.065 acre of one jurisdictional open water stream impoundment. 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: reducing or eliminating slurry generation (dewatering with filter presses, thermal drying), direct utilization of slurry (conventional boilers, alternative combustion, and gasification technologies), alternatives to disposal in impoundments (incised ponds, underground injection), and alternative disposal locations.

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, and permittee-responsible off-site and out-of-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 2,279 linear feet of stream and preservation of 2,894 linear feet of Stream 1 on-site.  Off-site, the applicant proposes to utilize the Oakdale Mitigation Area which was previously designated for off-site mitigation for the original impoundment project.  Specifically, those streams located west of Oakdale Road and Stream 3 and its tributaries are protected as a requirement of the original impoundment project.  The applicant proposes to preserve a total of 5,147 lf of stream to include Stream 2 and its tributaries (Figure 4) to compensate for permanent and temporal loss of jurisdictional stream channels associated with the current proposal.

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 a potentially eligible structure is present within the project area. The Corps has determined the proposal may affect a property potentially eligible for listing in the National Register. 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 Egret Environmental Consulting, LLC to complete a survey to determine the presence or probable absence of the Indiana bat within the proposed project area.  No Indiana bats or Northern Long-Eared bats were captured during the survey. 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 affect the Indiana bat or 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 Hocking River (050302040704) 12-digit hydrologic unit code watershed. The Corps is assessing the potential cumulative effects that the proposed Coarse Refuse Disposal Impoundment 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-2004-1152-UT Sunday 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.