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LRH 2009-17

Published May 7, 2014
Expiration date: 6/5/2014

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 Powdermill Surface Mine, approved by the West Virginia Department of Environmental Protection (WVDEP) under surface mining permit S-5027-08 (pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA)).



                                    P. O. Box 234

                                    Grayson, KY 41143


LOCATION:  The proposed activity is located on the Louisa, KY USGS quadrangle map at latitude 38° 02’ 58”, longitude 82° 31’ 14”.  The project area is located within the watershed of Powdermill Branch of Tug Fork, located 6.5 miles southeast of Fort Gay, Wayne County, West Virginia.  See the attached Exhibit 1 (Location Map A), Exhibit 2 (Location Map B) and Exhibit 2 (Project Site and Proposed Stream Fill Impacts).

DESCRIPTION OF THE PROPOSED WORK:  The applicant proposes to discharge dredged and fill material into 4,143 feet (0.5 aces) of intermittent stream and 1,518 feet (0.1 acre) of ephemeral stream during the mining/backfilling work and during the placement of a rock core drainage system at three durable rock valley fill sites (which would hold excess overburden material that cannot be backfilled onto the mined area).  The applicant also proposes to discharge fill material into 1,317 feet (0.15 acre) of intermittent and 763 feet (0.03 acre) of ephemeral stream channel to construct two drainage/sediment control ponds.  The attached Exhibit 3 shows the location of the streams that would be impacted by the proposed fill material.  Also refer to Table 1 below (Jurisdictional Waters Impact Summary).

No other activity associated with the proposed mining project would require a Section 404 permit.  The Corps’ scope of review, for most purposes, is limited to the potential individual and cumulative environmental effects of the proposed discharge of fill material into waters of the U.S. and their adjacent riparian areas.  The Corps is evaluating available information concerning the potential effects that the proposed stream fills may have on the human environment.  The applicant has submitted an Environmental Information Document (EID) that contains information pertinent to understanding the potential environmental effects caused by the proposed discharge of fills into waters of the U.S.

AVOIDANCE AND MINIMIZATION:  The applicant's stated overall project purpose is to mine coal in the 5-Block coal seam (and adjacent mineable seam splits) within the project area.  The proposed project would involve the discharge of dredged and/or fill material into waters of the U.S.  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 to be 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. 

As stated in the applicant’s analysis, the applicant considered various alternatives to determine the least environmentally damaging, practicable alternative(s).  The applicant evaluated each alternative’s ability to meet standard industry and site-specific criteria determined based on compliance with environmental regulations and policies, landowner obligations, infrastructure requirements, market conditions, geological and coal seam conditions, costs, logistics and current technology.  The applicant considered alternative mine plans, mining methods, alternative locations for excess overburden, and alternative sediment control pond construction locations.

For each alternative mining method, the applicant developed specific criteria as minimum feasible requirements for coal recovery in the target seam.  The applicant’s preferred mining method is a combination of contour, point removal and highwall/auger methods.  Alternative mining methods considered were: (1) underground mining (room and pillar), (2) mountaintop removal mining;   (3) contour mining with point removal and highwall/auger mining, and (4) contour mining with point removal (but excluding highwall/auger method).    

The applicant determined that underground mining was not practicable since it did not meet the total seam thickness requirement.  The applicant then considered a combination of contour mining and point removal methods.  This combination met several of the practicability criteria but did not meet their maximum coal recovery criterion.  Adding highwall/auger mining to the combination of contour mining and point removal methods was found practicable and would maximize coal recovery.  Thus, the applicant found this preferred (and proposed) combination of contour, point removal and highwall/auger methods to be the only practicable alternative mining method. 

The applicant then considered alternative locations and methods of placing excess overburden material (that cannot be placed back onto the mined area) that would avoid or reduce stream fills. Alternative off-site material placement locations were evaluated.  The unavailability of properties north and south of the project area precluded constructing a temporary haul road to any suitable sites.  In evaluating the practicability of hauling excess material to off-site areas, the applicant determined that a haul distance beyond ½-mile was impracticable (as demonstrated in the applicant’s alternatives analysis).    

The original mine plan included five valley fills.  However, the applicant found it to be practicable to back-stack additional material onto the adjacent valley fills (to more than twice the elevation typically specified by the State’s Approximate Original Contour AOC+ method). Further back-stacking is not practicable due to safety and stability requirements.  An amount of excess material could also be placed onto the adjacent permitted coal refuse fill site (U-5017-08). With these changes, and a reduction in the area to be mined, the applicant was able to eliminate two of the original five planned valley fills.  The potential for constructing a side-hill fill was eliminated due to the elevation of the coal seam, topography and volume of material.  The applicant found no other on-site areas that would accommodate the required fill volume and meet both stability and drainage requirements.  By adapting these alternatives, the applicant was able to collectively avoid stream fill impacts to 1,587 feet of streams (a 22 percent decrease).  Any acid-forming or selenium rich overburden material would not be placed within waters of the U.S. (or anywhere within the durable rock valley fills) as per the project’s material handling plan, and will avoid these indirect impacts.  The applicant indicates the proposed project (as described in “Project Description” above) represents the least environmentally damaging practicable design.  The project, as proposed, would involve the discharge of fill material into waters of the U.S. as shown in Table 1 below.

COMPENSATORY MITIGATION PLAN (CMP):   The applicant submitted a proposed conceptual CMP dated March 2014, describing actions to compensate for the proposed discharges of fill material into 7,741 feet of waters of the U.S. and the resultant functional losses. The applicant’s proposed CMP has the following components:

(a)  On-site stream re-establishment:  The 2,080 feet of streams and riparian vegetation impacted by sediment pond construction and mining excavation/backfilling (Streams A through G as shown in Exhibit 4) would be reconstructed, each to its approximate pre-project location, contour and configurations.  Riparian vegetation would be re-established along each bank (for a distance of 60 feet from the channel edge).  For streams greater than 4% gradient, the mitigation would achieve HGM scores equal or greater than pre-project scores.  For streams less than 4% gradient, the mitigation would achieve stream habitat scores equal to or greater than baseline scores.  Trees and shrubs would be reestablished on each side of the stream (to 60 feet from the stream edge).

(b)  Off-site improvement to 8,178 feet of perennial Powdermill Branch and 2,200 feet of an intermittent tributary of Powdermill Branch (located as shown on Exhibit 4).  The applicant states that past stream impacts have resulted in poor habitat, entrenched and unnatural channel dimensions, unstable substrate and banks, erosion and excessive sediment loading.  The applicant’s goal is to restore and sustain the stream’s critical functions.  This would be accomplished by re-grading banks where needed, installing in-stream structures (e.g. cross vanes, root wads, etc.) and planting riparian vegetation.  The in-stream structures would be designed and located to reduce bank erosion and improve overall channel stability, establish grade control, maintain efficient sediment transport, to form riffles and pools, and to create channel meanders. 

 (c) Aquatic Improvement to Powdermill Branch:  One abandoned well (API No. 47-9902275), located approximately 3,300 feet upstream of the mouth of the stream, is presently discharging water directly into Powdermill Branch.  Effluent from the well typically has a conductivity of 10,450 µmhos/cm and chloride values at 2,680 mg/L.  During low flow conditions, this effluent is a primary source of stream flow from the watershed.  As part of the applicant’s proposed CMP, the well would be plugged.  Fencing is proposed in order to isolate the stream and riparian area from the pasture.  The applicant thinks these actions may potentially lead to removal of the stream from the State’s Section 303(d) impaired list.

(d) Long-Term Protection of Mitigation Sites: Each mitigation stream and riparian zone would be protected from destruction through a Declaration of Restrictive Covenants provided by the landowner and recorded in the county real estate records.  A draft document is included in the CMP.

The CMP includes a monitoring plan to assess the success of all mitigation sites, using  geomorphic, biological and habitat assessment tools. 

WATER QUALITY CERTIFICATION: A State individual Water Quality Certification is required for this activity, pursuant to Section 401 of the Clean Water Act.  It is the applicant’s responsibility to obtain such certification from the WVDEP. 

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 Huntington District has determined the proposed activity would have no impact on historic properties eligible for or listed in the National Register of Historic Places (NRHP).  By letter dated November 14, 2008 (FR# 08-268-WA-4), the West Virginia Division of Culture and History (WVDCH) concurred with a “Phase 1 Archaeological Survey for the Proposed Powdermill Branch Surface Mine Located in Lincoln District, Wayne County, West Virginia”, completed by Cultural Resources Analysts, Inc.  The WVDCH concluded there are no architectural or archaeological resources within the proposed project area that are listed or considered eligible for inclusion into the NRHP.  No further Section 106 consultation is required.

ENDANGERED/THREATENED SPECIES REVIEW (Pursuant to Section 7 of the Endangered Species Act):  The proposed project lies within the natural range of two federally listed endangered species: the Indiana bat (Myotis sodalis), and the Virginia big-eared bat (Corynorhinus townsendii virginianus).  The project also lies within the natural range of the Northern long-eared bat (Myotis septentrionalis), proposed to be federally listed as an endangered species.

A report titled “Bat Species Inventory of Powdermill Branch Surface Mine – Additional Area, Wayne County, West Virginia”, records the results of a project area survey conducted in May 2008 for bat species and habitat.  Eastern red bats and Big brown bats were the only species observed.  No federally listed species were captured.  No deep mine openings were observed.  This project was reviewed by WVDEP pursuant to the 1996 Biological Opinion agreement between USFWS and U.S. Office of Surface Mining.  By letter dated June 11, 2008, the WVDEP concurred with a bat survey, which found no listed species and no potential winter hibernacula within the project area, and found the project is not likely to adversely affect federally-listed species.  However, since the above-cited bat species inventory was conducted over five years ago and did not include species proposed for listing, additional coordination is required in order to assure all Section 7 obligations are met. 


This public notice serves as Section 7 coordination with the USFWS concerning federally listed threatened or endangered species.  If the USFWS has new information indicating that 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 the Lost Creek – Tug Fork 12-digit hydrologic unit 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

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.