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LRH 2005-1198-TUG

Published July 24, 2014
Expiration date: 8/22/2014

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 (CWA). This notice serves as the Corps request to the West Virginia Department of Environmental Protection (WVDEP) to act on the Section 401 water quality certification for the following application:

APPLICANT: Consol of Kentucky, Inc. 
                     1000 CONSOL Energy Drive 
                      Canonsburg, Pennsylvania 15317

LOCATION: The proposed project is located approximately 2.9 miles southwest of Breeden, Mingo County, West Virginia. The project site is located at latitude ºN 37.89” and longitude ºW 81.29444 on the Wilsondale USGS Quadrangle map. The proposed project would be constructed in Jenny Creek and unnamed tributaries of Jenny Creek. Jenny Creek is a direct tributary of the Tug Fork River, a Section 10 navigable water. The project location map is attached to this public notice.

DESCRIPTION OF THE PROPOSED WORK: The applicant proposes to discharge fill material into waters of the United States (U.S.) to facilitate the construction and operation of the Taywood Surface Mine. The applicant is requesting authorization to discharge fill material into five (5) intermittent and ephemeral stream channels in conjunction with the construction of the rock under-drain structure of Valley Fill No.1 and the embankment structures for Sediment Ponds No.1 and 1A. The applicant has received the required Surface Mining Control and Reclamation Act (SMCRA) permit (S-5008-02, IBR #1) for this proposal. The West Virginia Department of Environmental Protection (WVDEP) approved the SMCRA permit on February 8, 2012. 

The work requiring authorization from this office is limited to the discharge of fill material below the ordinary high water elevation of jurisdictional waters of the U.S. Personnel from this office conducted a field review in June 2010 to determine the extent of waters of the U.S. at the site. It was determined that approximately 9,988 linear feet of intermittent stream channel and 5,960 lf of ephemeral stream channel exist within the project study area. A total of 15,948 linear feet of Jenny Creek and its unnamed tributaries area located within the study area.

Valley Fill No. 1: To construct the under-drain structure associated with Valley Fill No. 1, the applicant proposes to permanently discharge approximately 49.8 cubic yards of clean, non-erodible, weathered sandstone below the ordinary high water elevation of approximately 1,527 linear feet (1.63 acres) of an intermittent segment of Jenny Creek (Stream 3), 4.39 cubic yards into 400 linear feet (0.015 acre) of an ephemeral segment of Jenny Creek (Stream 3), and 9.63 cubic yards into 800 linear feet (0.026 acre) of an ephemeral tributary (Stream 3A) of Jenny Creek. A total of 2,727 linear feet (1.67 acres) of Jenny Creek and one (1) unnamed tributary of Jenny Creek would be permanently filled with 63.82 cubic yards of durable rock fill to construct the under-drain structure for Valley Fill No. 1.

Sediment Ponds No. 1 and 1A: To construct the embankment structure associated with Sediment Pond No. 1, the applicant proposes to temporarily discharge approximately 13.83 cubic yards of clean earthen fill material into 171 linear feet (0.037 acre) of an intermittent segment of Jenny Creek (Stream 3). Approximately 241 linear feet (0.360 acre) of this segment of Jenny Creek would be impounded as a result of the embankment structure. To construct the embankment structure associated Sediment Pond No. 1A, the applicant proposes to temporarily discharge approximately 5.18 cubic yards of clean earthen fill material into 120 linear feet (0.014 acre) of Jenny Creek (Stream 3) Approximately 428 linear feet of an intermittent segment of Jenny Creek (Stream 3), 60 linear feet of an intermittent tributary of Jenny Creek (Stream 3B), 43 linear feet of an ephemeral tributary of Jenny Creek (Stream 3C), and 100 linear feet of an ephemeral tributary of Jenny Creek (Stream 3D) would be impounded as a result of the embankment structure. As a result of the construction of the embankment structures and subsequent impoundment, a total of 1,163 linear feet (0.544 acre) of intermittent and ephemeral stream channels would be temporarily affected by Sediment Pond No. 1 and No. 1A.

Table 1, which is attached to this public notice, describes the discharges of fill material within waters of the U.S.

A copy of the Section 404 Permit Application, including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.) is available for review in the Huntington District Office, by appointment.

ALTERNATIVE ANALYSIS: The applicant’s stated basic project purpose is bituminous coal removal. In the majority of cases, coal removal and associated and attendant features and activities (overburden disposal, sediment control, etc.) does not require siting within a water of the U.S. Because coal removal is not water dependent, the applicant is required to show that there are no other less damaging practicable alternatives available that do not require the discharge of fill material into waters of the U.S., and that would achieve the overall project purpose. No permit would be issued unless the alternatives analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.

To determine the most efficient, logistical, safety, cost-effective and environmentally sound way to remove coal and properly dispose of the overburden generated as a result of the coal removal activities, the applicant evaluated three (3) mining methods alternatives, and three (3) overburden disposal alternatives. The applicant also considered a No Action alternative. All of the alternatives were evaluated using a set of criteria developed in accordance with SMCRA criteria. The applicant’s alternatives analysis is currently under review and is available for public review in the Huntington District Office.

AVOIDANCE AND MINIMIZATION: The applicant indicated the proposed project cannot be located in an area that would avoid all discharges of fill material into waters of the U.S. As a result of negotiations with this office, the applicant has significantly the reduced the acreage of the proposed surface mine as well the amount of stream channel proposed for the discharge of fill material. The applicant has reduced the footprint of the proposed surface mine from 602 acres to 316 acres. The length of stream channel proposed for discharge into waters of the U.S. has been reduced from 22,068 linear feet of intermittent and ephemeral stream channel to 3,890 linear feet of intermittent and ephemeral stream channel, a reduction 20,196 linear feet or 84% of the stream channel in the project area. While discharges of fill material into waters of the U.S. would not be avoided, the applicant has avoided sites that contain waters of the U.S. which have not been directly affected by mining activities. After the completion of the mining operations the area would be returned to a post-mining land use of forestland.

COMPENSATORY MITIGATION PLAN (CMP): The applicant has submitted a CMP to compensate for unavoidable discharges of fill material into waters of the U.S. after avoidance and minimization of the discharges were considered. The applicant proposes to utilize the WV Buntootis, LLC’s Spanishburg Stream and Wetland Mitigation Bank located in the Rich Creek watershed approximately three (3) miles west of Spanishburg, Mercer County, West Virginia. A map showing the location of the proposed mitigation site is attached to this public notice.

The applicant used the current functional assessment data and used the West Virginia Stream and Wetland Valuation Metric (SWVM) to assess and correlate the baseline conditions of the proposed areas impacted by the discharge of fill material into waters of the U.S. to determine the amount of credits that would be required to be purchased from the Spanishburg Stream and Wetland Mitigation Bank. Using the WV SWVM, the applicant determined that the total amount of debits associated with the permanent discharges of fill material into waters of the U.S. at the site were 2,089.28 debits and the total amount of debits associated with temporary discharges of fill material into waters of the U.S. at the site were 951.1 debits. The applicant would purchase a total of 3,040.38 credits from the Spanishburg Stream and Wetland Mitigation Bank to off-set unavoidable losses of aquatic resources associated with the proposed mining activities. As part of our evaluation, the Corps will review the applicant’s SWVM sheets for accuracy.
The applicant’s CMP is currently under review, and is available for public review. The proposed CMP is open to comment and is subject to change based on comments received. After review of all the submitted information the Corps will make a determination of appropriate mitigation, in the event a decision is made to issue a permit.

WATER QUALITY CERTIFICATION: An individual Section 401 Water Quality Certification (WQC) is required for this project. The applicant has indicated the required WQC is pending with the WVDEP.

HISTORIC AND CULTURAL RESOURCES: This project must be reviewed to determine any potential effects to properties that may be eligible for or listed in the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act. Based on a review of the NRHP, there appears to be no cultural or historic sites located within the project area. The applicant has indicated they have contacted the West Virginia Division of Culture and History (WVDCH) regarding the presence of archaeological or architectural resources that may be listed or eligible for listing in the NRHP, however; no written response has been provided to this office. A copy of this public notice will be sent to the WVDCH their review. Additional comments concerning archeological sensitivity of a project area would be based upon collected data.

ENDANGERED/THREATENED SPECIES REVIEW: This public notice will serve as coordination with the U.S. Fish and Wildlife Service (USFWS) concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act (ESA) of 1972 (as amended). The project is located within the known range of the federally listed Indiana bat (Myotis sodalis), Virginia big-eared bat (Corynorhinus townsendii veiginianus), the Eastern cougar (Felis concolor cougar) and the potentially eligible northern long-eared bat (Myotis septentrionalis). The applicant conducted a mist survey for the Indiana bat and the Virginia big-eared bat in the summer of 2010. That survey expires in 2015. This project will be reviewed by the WVDEP pursuant to the 1996 Biological Opinion and Conference Report between the U.S. Office of Surface Mining and the USFWS and all Section 7 ESA requirements will be met.

PUBLIC INTEREST REVIEW AND CUMULATIVE 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 guidelines published by the U.S. Environmental Protection Agency pursuant to Section 404(b)(1) of the Clean Water Act. The decision whether to issue a permit will be based on an evaluation of the probable impacts 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 benefits 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 Jenny Creek watershed. The Corps is assessing the potential cumulative effects that the proposed stream impacts from the discharge of fill material into waters of the U.S. may have on public interest factors when considered with other activities in that 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 code watershed to analyze past and present activities that may currently be affecting streams.

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. Inested parties are invited to state any objections they may have to the proposed work. 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 ofn 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 at the beginning 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: LRH-2010-554-GUY
502 Eighth Street
Huntington, West Virginia 25701-2070

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 the
provisions of the Freedom of Information Act. Thank you for your interest in our nation's water resources. If you have any questions concerning this public notice, please call Kimberly Courts-Brown of the Energy Resource Branch at (304) 399-6906.

TABLE 1

 Discharges of Fill Material into and Impoundment of Water of the U.S. (Impacts) 

 Taywood Surface Mine (S-5008-02, IBR #1)

 LRH-2005-1198-TUG

 

Stream Name

Flow Regime

Proposed Structure/Mining Activity

Extent of Impacts

(Linear Feet/Acreage)

Total Fill Volume below OHW (cubic yards)

Duration of Impact

Jenny Creek

(Channel 3)

Intermittent

Underdrain Structure for

Valley Fill No. 1

1,527 lf

(1.63 acres)

49.8 c.y.

Permanent

Jenny Creek

(Channel 3)

Ephemeral

Underdrain Structure for Valley Fill No.1

400 lf

(0.015 acre)

4.39 c.y.

 

Permanent

UNT Jenny Creek (Stream 3A)

Ephemeral

Underdrain Structure for Valley Fill No.1

800 lf

 (0.026 acre)

9.63 c.y.

Permanent

Jenny Creek

(Stream 3)

Intermittent

Sediment Pond No. 1

Embankment

171 lf

(0.037 acre)

13.83 c.y.

Temporary

Jenny Creek

(Stream 3)

Intermittent

Sediment Pond No.1

Impounded Area

241 lf

(0.360 acre)

13.38 c.y.

Temporary

Jenny Creek

(Stream 3)

Intermittent

Sediment Pond No. 1A

Embankment

120 lf

(0.014 acre)

5.18 c.y.

Temporary

Jenny Creek

(Stream 3)

Intermittent

Sediment Pond No. 1A

Impounded Area

428 lf

(0.124 acre)

30.04 c.y.

Temporary

UNT Jenny Creek (Stream 3B)

Intermittent

Sediment Pond No.1A

Impounded Area

60 lf

(0.001 acre)

3.07 c.y.

Temporary

UNT Jenny Creek

(Stream 3C)

Ephemeral

Sediment Pond No. 1A Impounded Area

43 lf

(0.002 acre)

0.531 c.y.

Temporary

UNT Jenny Creek

(Channel D)

Ephemeral

Sediment Pond No. 1A

Impounded Area

100 lf

(0.006 acre)

2.546 c.y.

 

Temporary

Total Discharges/Impoundment

of Waters of U.S.

3,890 lf

2.21 acres

132.42

cubic yards