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LRH 2012-290-GUY

Published March 24, 2014
Expiration date: 4/22/2014

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 Huntington District Office, by appointment.

The proposed discharge is in conjunction with the construction, operation and reclamation of the applicant’s Sandlick Surface Mine, currently being reviewed by the West Virginia Department of Environmental Protection (WVDEP) under pending surface mining application S-5012-12 (pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA)).

APPLICANT:            Hobet Mining, LLC

                                    P.O. Box 305

                                    Madison, WV 25130

LOCATION:  The proposed project area is Latitude N 38° 05’ 21”, Longitude –W 82° 00’ 08”, Lincoln County, West Virginia.  The project boundary encompasses a portion of Chestnut Oak Creek (of Laurel Creek of Big Ugly Creek); and Sandlick Hollow, tributaries of Mullins Branch and tributaries of Mud River (a tributary of Guyandotte River).  See attached maps (Exhibit 1 General Location; and Exhibit 2 Project Boundary & Proposed Stream Fills).

DESCRIPTION OF THE PROPOSED WORK:  The proposed surface coal mining project would involve mining through 3,136 feet of intermittent stream, 6,959 feet of ephemeral stream channel, and 0.3 acre of emergent wetland during the mining process and during construction of on-bench sediment control structures within the project area.  No “valley fill” is proposed since excavated material would be backfilled onto the mined area, with excess material placed onto “backstack” areas of two adjacent active mining projects.  Mining through these waters (excavating and backfilling) constitutes the discharge of dredged and/or fill material into waters of the U.S. and therefore a Section 404 permit would be required.  The attached Exhibit 3 summarizes all proposed stream and wetland fill impacts (an estimated 926 cubic yards of material within waters of the U.S.). 

The applicant has submitted an Environmental Information Document (EID) containing information pertinent to understanding the potential environmental effects of the proposed fills into waters of the U.S.

AVOIDANCE AND MINIMIZATION:  The proposed project would involve the discharge of dredged and/or fill material into waters of the U.S. during the recovery of coal from three seams (and associated splits and riders) at the project site.  The Section 404(b)(1) Guidelines state that for non-water dependent activities, practicable alternatives that do not involve wetlands are presumed to be available, unless clearly demonstrated otherwise.  The project is considered a non-water dependent activity.  Therefore, the applicant is required to provide an alternatives analysis that must overcome the presumption prior to receiving authorization for the discharge of fill material into waters of the U.S.  No permit will be issued until we have determined that the alternative analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.  The applicant submitted an alternatives analysis, which is currently under review. 

Alternatives evaluated by the applicant included: not mining the project area, relocating the project, alternative mining methods, and alternative locations for placing excess overburden.  Alternative mining methods considered included (a) underground mining (room and pillar), (b) area mining (full seam extraction); (c) contour mining; (d) contour/auger/highwall mining; or    (e) a combination of area mining with limited auger/highwall mining.  The applicant evaluated each alternative’s ability to meet industry-specific and site-specific criteria determined based on environmental impacts and regulations, landowner and infrastructure needs, equipment, and market conditions.  Each coal seam failed to meet all criteria specified for each mining method except for (e) above. 

The applicant evaluated alternatives sites to place excess overburden (material that cannot be backfilled onto the mined area).  Alternative sites considered included (a) valley adjoining the mined area (placed as a valley fill), (b) off-site unpermitted areas, (c) off-site mined areas, and (d) on-site stacking above the approximate original contour elevation.  The applicant’s evaluation was based on maximum practicable haul distance (5,000 feet one way), property ownership, site volume capacity, impacts on public roads, environmental impacts of re-disturbance, and impact on an adjacent mine’s ability to meet permit requirements. The applicant considered constructing a valley fill in one of two areas abutting the project site.  Valley fill construction would involve fill material into an additional 3,637 feet of stream (Site A) or 12,400 feet of stream (Site B).  However, the applicant also determined that it was practicable to haul the excess material off-site to portions of two adjacent surface mines (S-5011-01 and S-5003-96).  Although the haulage cost would be greater for using the adjacent mines (compared to the adjoining valley fill sites), placing the excess material onto the regrade areas of these mines would not involve additional stream fills and would eliminate the environmental effects of constructing a valley fill.  The applicant therefore incorporated these off-site areas for placing all remaining excess overburden material generated by the proposed project.

COMPENSATORY MITIGATION PLAN (CMP): The applicant submitted a proposed CMP dated February 2014, describing proposed actions to compensate for the proposed discharges of fill material into waters of the U.S. and the resultant functional losses of those waters that would occur.  

The CMP includes the following components: 

(a)  On-site reconstruction of 4,373 feet of ephemeral stream channel within the topographic drainage areas of the reclaimed mine site, in the approximate location of the original ephemeral streams (as shown in Exhibit 5) and would connect to downstream waters of the U.S. The stream channels would be constructed as steep-gradient, cascade/step/pool channels.

(b)  Off-site creation and rehabilitation of 4,100 feet of perennial stream and 0.33 acre of emergent wetland in the headwater area of the Left Fork of Stanley Fork (of Mud River) located east of the project site.  See attached map (Exhibit 6).  The area is within and below an old mine site.  This work would take advantage of existing surface water and perennial flow along the perimeter of an old valley fill.  According to the applicant, its surface flow connection to the Left Fork of Stanley Fork is interrupted by a section of subsurface flow within the valley fill rock drain.  The jurisdictional status of the surface waters have not yet been verified by the Corps.  This mitigation stream is divided into five sections: A, B1, B2, C and D.  At the upper end, Section B2 (1,633 feet) would be constructed along the lowest gradient (0.5%) area of the valley fill perimeter where ponded water exists.  Section D (649 feet) would be constructed through a channel to be cut into bedrock (which forms a hump in the valley profile causing upstream ponding.  Further downstream, Section C (304 ft.) has a partially formed natural drainage channel.  The applicant anticipates Section C would continue to develop after connections are established to constructed stream reaches.  Section B1 (258 feet) would be constructed in an existing low-gradient drainage swale.  Initial construction would attempt to shape the channel as close as possible to the desired configuration.  The plan would then rely on the stream itself to create its finished form.  Section A (1,300 feet), to be the downstream end of the Left Fork, would be constructed as a steep-gradient, straight channel along the side of the hill following an old road cut, and would connect to the main stem of Stanley Fork.  Extensive tree/shrub planting would be done along the entire stream.

(c) Off-site creation of 0.33 acre of emergent wetland on the Left Fork of Stanley Fork (abutting the utilizing ground and surface hydrology. 

(d) Off-site rehabilitation of 1,200 feet of intermittent stream (right fork of Stanley Fork).  The existing stream has been heavily impacted by dredging and accelerated bank erosion.  Meander migration, undermined stream banks, extensive new bar formation and stream incision are seen.  A pond at the downstream end of the fork is presently used for water treatment to meet NPDES permit requirements.  The pond would first be moved upstream near the toe of a valley fill (reclaimed and vegetated).  At the old pond location, a new stream would be constructed.  Further upstream, the existing channel would be rehabilitated.  The applicant has not yet fully developed the rehabilitation work plan for this stream, but would provide a detailed plan as an addendum to the CMP.  The general concept will center on creating a stable, natural stream channel, with diverse habitat, and well connected to a forested floodplain.  The stream would be separated into Section E and Section F.  The lower half has been heavily impacted by excess sediment from accelerated bank erosion. 

To evaluate whether the proposed mitigation would adequately off-set the impacts associated with the proposal, the applicant used the Corps’ “West Virginia Stream and Wetland Valuation Metric” (SWVM), which compares baseline data with anticipated or actual post-mitigation data to calculate impact debits and required or achieved mitigation credits. 

Exhibit 7 summarizes the proposed stream/wetland impacts and compensatory mitigation as presented in the CMP.

The CMP proposes a 10-year monitoring plan to assess the success of all mitigation sites using  geomorphic, biological and habitat assessment tools.  Stream mitigation success would be determined using SWVM scores; vertical and horizontal stability (using detailed streambed profiles); bank erosion hazard index values (moderate range or better); and riparian vegetative density, width, composition, and invasive species control.  

WATER QUALITY CERTIFICATION: A State individual Water Quality Certification (WQC) is required for this activity, pursuant to Section 401 of the Clean Water Act.  The applicant has applied for WQC with the WVDEP, which 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 (Section 106). The applicant provided a technical report of a historical/archaeological survey performed of the project area, which indicated no archaeological or historical resources eligible for listing in the NRHP.  The report was coordinated with the West Virginia Historic Preservation Office (SHPO).  By letter dated January 9, 2013 (reference FR# 13-188-LC), the SHPO concurred with the report and required no further Section 106 consultation.  The NRHP shows no listed properties in the vicinity of the proposed project.  Based on this information, the Corps has determined the proposal would have no effect on properties listed or eligible for listing in the NRHP.

This public notice serves as coordination with the SHPO, pursuant to Section 106.  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 NRHP, such information is requested.

ENDANGERED/THREATENED SPECIES REVIEW (Pursuant to Section 7 of the Endangered Species Act (Section 7)):  The proposed project lies within the natural range of two federally listed endangered species, the Indiana bat (Myotis sodalis) and Virginia big-eared bat (Corynorhinus townsendii virginianus).  A mist net survey of the project area was conducted in June, 2012, and a winter habitat survey was conducted in February 2013.  No federally listed species were captured and no suitable winter habitat was discovered.  Survey reports were coordinated with the WVDEP, who performed an endangered species review (pursuant to a 1996 national programmatic biological opinion and agreement between the U.S. Office of Surface Mining and the U.S. Fish & Wildlife Service (USFWS) regarding Section 7 procedures for approved State coal permitting programs).  By letter dated March 4, 2013, the WVDEP concluded that the proposed project is not likely to adversely affect federally listed endangered and threatened species.  Based on this information, the Corps has also determined that the project is not likely to adversely affect the Indiana bat or the Virginia big-eared bat or their critical habitat, and would have no effect on any other federally listed species. 

This public notice serves as Section 7 coordination with the USFWS concerning federally listed threatened or endangered species.  If the USFWS believes any potential effects to federally listed species would be attributable to the Huntington District's proposed permitting action, additional information is requested.   

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 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 Corps is assessing the potential cumulative effects that the proposed discharge of fill material into waters of the U.S. may have on public interest factors when considered with other activities in the 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 watershed to analyze past and present activities that may currently be affecting streams.

The project lies within two major watersheds: (a) the Upper Ballard Fork – Mud River 12-digit hydrologic unit code (HUC) watershed; and (b) the Big Ugly Creek 12-digit HUC watershed.

The project area lies within the boundary of the Big Ugly Wildlife Management Area, managed by the West Virginia Division of Natural Resources.

The applicant’s information states that stream surveys identified no fish within the streams that would be filled during mining, due to each stream’s small size, low flow, and steep gradient. Baseline water quality data for streams in the project area indicates “good” water quality.

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

502 Eighth Street

Huntington, West Virginia 25701-2070

ATTN: CELRH-RD-E, Public Notice No. LRH-2012-290-GUY


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 Richard Berkes of the Energy Resource Branch at (304) 399-5610.