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LRH 2012-780-TUG

Published June 27, 2014
Expiration date: 7/28/2014

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 of fill material into waters of the U.S. is in conjunction with the construction, operation and reclamation of the applicant’s Cucumber Run Refuse Expansion project, permitted by the West Virginia Department of Environmental Protection (WVDEP) under mining permit U-4016-94, Incidental Boundary Revision No. 10 (pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA)), and under NPDES permit WV1016130, Modification 11.

APPLICANT:            Brooks Run Mining Co., LLC

                                    208 Business St.

                                    Beckley, WV 25801

LOCATION:  The proposed project area is approximately 1 mile north of the community of Cucumber, Latitude N 37° 17’ 55”, Longitude –W 81° 37’ 29”, McDowell County, West Virginia.  The project boundary encompasses a headwater of Lower Trace Fork of Jacobs Fork of Tug Fork.  See attached maps (Exhibit 1- General Location; Exhibit 2 -Topographical Location Map, and Exhibit 3 - Project Boundary & Proposed Stream Fills).

DESCRIPTION OF THE PROPOSED WORK:  As permitted under the applicant’s mining permit (stated above), the applicant would expand an existing coal refuse disposal area (known as the Cucumber Refuse Expansion) that is currently being operated in conjunction with underground coal mining at its Cucumber Mine facility.  In the refuse expansion area, construction of a rock underdrain system would place 40 cubic yards of rock fill material into 1,352 linear feet of ephemeral and intermittent headwater stream channels.  Construction of a  temporary sediment control pond would place 17 cubic yards of earthen fill material into 443 feet of intermittent stream.  Exhibit 4 shows a cross sectional view of the proposed stream fills.   The purpose of the proposed stream fill impacts is to facilitate continued extraction of metallurgical grade bituminous coal from the Cucumber underground Mine facility.  Tables 1 and 2 below summarize all proposed stream fill impacts. 

                              TABLE 1 – Temporary Impacts to Jurisdictional Waters

 

 

Stream Name

Direct Impacts to Jurisdictional Waters, Temporary

Perennial

Intermittent

Ephemeral

Total

Total

 

Type

Feet

Acres

Feet

Acres

Feet

Acres

Feet

Acres

Lower Trace Fork

0

0

301

0.02

0

0

301

0.02

 

In-Stream Drainage

& Sediment Control

System, Pond No. 9

Lower Trace Fork 1

0

0

142

0.02

0

0

142

0.02

Total Temporary

Impacts

 

0

 

0

 

443

 

0.04

 

0

 

0

 

443

 

0.04

TABLE 2 – Permanent Impacts to Jurisdictional Waters

 

 

Stream Name

Direct Impacts to Jurisdictional Waters, Permanent

Perennial

Intermittent

Ephemeral

Total

Total

 

Type

Feet

Acres

Feet

Acres

Feet

Acres

Feet

Acres

Lower Trace Fork 1

0

0

625

0.06

0

0

625

0.06

 

Installation of Underdrain System and Refuse Placement

Lower Trace Fork 1

Braid

 

0

 

0

 

110

 

0.01

 

0

 

0

 

110

 

0.01

Lower Trace Fork 1.1

0

0

0

0.00

617

0.04

617

0.04

Total Permanent

Impacts

 

0

 

0

 

735

 

0.07

 

617

 

0.04

 

1,352

 

0.11

 

 The applicant states that an Environmental Information Document (EID), once finalized, will be submitted to provide additional information pertinent to understanding of 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.  The project is not water dependent.  Therefore, the applicant is required to provide an alternatives analysis that clearly demonstrates that practicable alternatives are not available to achieve the overall project purpose.  The applicant submitted an alternatives analysis, which is currently under review.  The applicant’s overall project purpose is the continued operation of a refuse disposal area and other necessary facilities to provide for the environmentally responsible and economically efficient recovery of as much metallurgical grade coal as practicable from the applicant’s existing Cucumber reserve base.

Course refuse material is presently being trucked to an upland disposal area (adjacent to the proposed expansion area), and is reaching its capacity.  The proposed refuse expansion area (shown in Exhibit 3) would allow continued operation of the Cucumber mine for an additional ten years.  

In an effort to avoid or minimize impacts on waters of the U.S., the applicant considered the practicability of various alternatives, including (a) no action (not expanding the refuse fill area), (b) alternate expansion sites, (c) alternate mining methods, (d) reducing project scope, (e) and using or developing new technology

COMPENSATORY MITIGATION PLAN (CMP): The applicant submitted a proposed CMP dated May 30, 2014, describing proposed actions to compensate for the unavoidable permanent, temporary and temporal stream functional losses that would occur as a result of the proposed discharges of fill material into waters of the U.S.  The applicant evaluated various mitigation opportunities, based on the options and heirarchy in the 2008 Mitigation Rule.  Two approved stream mitigation banks exist that includes the project area within their service area.  However, no stream credits were available.  Concerning the potential use of the West Virginia In-Lieu Fee Mitigation program, the applicant does not anticipate proposing the payment of in-lieu fees to offset project impacts, believing permittee-responsible mitigation to be more appropriate.  However, if a mitigation deficit (or net debit) remains after considering the permittee-responsible mitigation, the applicant would consider payment into the In-Lieu Fee Mitigation program to ensure adequate compensation.   Permittee-responsible off-site stream enhancement and establishment (as listed below) was available and located within the same watershed.

To evaluate whether the proposed mitigation would adequately off-set the permanent, temporary and temporal stream functional losses, 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.  The applicant’s goal is to offset calculate project impact debits to assure “no net loss” of aquatic function and value.  Table 3 below summarizes the proposed compensatory mitigation as presented in the CMP.  Exhibits 5 and 6 show the location of all stream mitigation sites. 

 

TABLE 5 - Summary of Proposed Stream Mitigation

 

 

Mitigation Channel Name

 

Linear

Feet

Predicted Flow Regime

 

Mitigation Type

 

LTF 4

 

523

 

I

Off-Site Stream

Enhancement

(Pre-Project)

 

LTF 4

 

577

 

E

 

Off-Site Stream Establishment (Pre-Project)

 

LTF 4.1

 

300

 

E

Memo:  Total Pre-Project Stream

Mitigation

 

1,400

 

 

 

Lower Trace Fork

 

301

 

I

 

On-Site Stream Reestablishment (Post-Project)

 

LTF 1

 

142

 

I

Memo:  Total Pre-Project Stream

Mitigation

 

443

 

 

Total Proposed Stream Mitigation

 

1,843

The following work would be done concurrently with the proposed stream fill impacts:

(a)  Off-site enhancement of 523 feet of intermittent and ephemeral stream (identified as stream LTF 4) located within the Lower Trace Fork watershed.   (b)  Off-site establishment of 877 feet of ephemeral stream channel within the sub-watershed of mitigation stream LTF 4.   The enhanced and established stream channels would include a primary “bankfull” channel to carry frequent (~ 1.5 year frequency) storm events, constructed within a larger trapezoidal “flood-prone” channel designed to carry a 100-year/24-hour frequency storm event.  Both channels would be consistent with regional reference-reach regression data for similar watersheds and channel slope.  Substrate material within the primary channel would be sized based on anticipated bankfull velocities.  In areas requiring stream bank protection, rock riprap, J-Hooks and vegetation would be used.  In-stream structures such as cross-vanes and large woody debris would be installed as appropriate to provide aquatic habitat or create step/pools for grade controls.  Base material within the larger secondary channel would consist of a soil/rock mixture to provide both erosion protection during high flow but also suitable to support riparian vegetation. A portion of both sides of the creation stream is presently mature forest. Supplemental planting would be done in deficient areas. Diversion structures would be constructed updrain of these mitigation stream channels in order to direct surface drainage flow to the mitigation channels.

 

Upon project completion (anticipated in 12 years), the 443 feet of intermittent stream impacted by the sediment control pond would be re-established similar to pre-project pattern, profile, dimension, substrate composition, in-stream structure, and habitat features.  Channel dimensions would also be based on reference reach data, appropriate hydraulic calculations and natural stream channel design techniques.  Stream substrate composition would be similar or equal to pre-project compositions, as practicable.  In areas requiring bank protection, appropriate material and structures would be used, such as root wads, J-Hooks, vegetation and rock riprap. 

 

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’s information indicates that the project was coordinated with the West Virginia Historic Preservation Office (SHPO).  By letter dated August 7, 2006, the SHPO stated their opinion that no architectural or archeological resources exist in the project area that are eligible for inclusion into the National Register of Historic Places (NRHP).  No listed properties are 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 the Virginia Big-Eared bat (Corynorhinus townsendii virginianus).  The site also lies within the natural range of the Northern Long-Eared bat (Myotis septentrionalis), a species proposed for federal listing by the U.S. Fish and Wildlife Service (USFWS). 

 

The applicant’s information states that, in accordance with the WVDEP “Range-wide Indiana Bat Protection and Enhancement Plan

Guidelines” (which were in effect at the time of project approval under the SMCRA), site specific surveys for the Indiana bat were not

required since the proposed 23-acre expansion project would involve less than 40 acres of forest removal.  Based on the applicant’s

information, the Corps has determined that the proposal may effect but is not expected to adversely affect the Indiana bat.  The Corps has

 no information at this time to indicate whether the project site contains suitable habitat for the Virginia Big-Eared bat. 

 

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 proposed project would place fill material into Lower Trace Fork, which flows into Jacobs Fork.  The project area is within the Jacobs Fork watershed hydrologic unit 050702010102, an area approximately 22,295 acres, of which 8,950 acres lies in Virginia. 

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-2012-780-TUG

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.