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LRH 2012-852-ELK

Published April 29, 2015
Expiration date: 5/28/2015

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:


Brooks Run Mining Company, LLC

25 Little Birch Road

Sutton, West Virginia 25813

LOCATION: The proposed project is located off of County Road 32 near Erbacon, Webster County, West Virginia. The project site is located at latitude 37.519444 º North and longitude -81.61444 º West on the Erbacon and Little Birch USGS Quadrangle maps. The proposed project would be constructed in unnamed tributaries of Missouri Creek (Stump Hollow). Missouri Creek is a direct tributary of Laurel Creek. Laurel Creek flows into the Elk River, a Section 10 navigable water of the United States (U.S.). The project location map is attached to this public notice.

DESCRIPTION OF THE PROPOSED WORK: The applicant proposes to discharge dredged and/or fill material into waters of the United States (U.S.) to facilitate the expansion and operation of the Stump Hollow Slurry Impoundment (See Table 1). The proposal would provide storage for an additional one (1) year of coarse refuse disposal and 2.7 years of fine coal refuse disposal for coal cleaned and prepared at the existing Erbacon Preparation Plant. The applicant has received the required Surface Mining Control and Reclamation Act (SMCRA) permit (O-2018-10) for this proposal. The West Virginia Department of Environmental Protection (WVDEP) approved the SMCRA permit on August 6, 2013.


Course and Fine Coal Refuse Impoundment (Refuse Fill): To construct the under-drain structure associated with the proposed refuse fill, the applicant proposes to permanently discharge approximately 394.4 cubic yards of clean, non-erodible, weathered sandstone cobble below the ordinary high water elevation of approximately 2,580 linear feet (0.346 acre) of a perennial/intermittent segment of Channel A (Stump Hollow), 630 linear feet (0.0.08 acre) of an intermittent segment of Channel A1 (UNT Stump Hollow), and 1,291 linear feet ( 0.112 acres) of an intermittent/ephemeral segment of Channel A2 (UNT Stump Hollow). In addition, approximately 80.67 cubic yards of clean, non-erodible weathered sandstone would be discharged into 0.05 acre of Wetland A. The under-drain structure would be wrapped in geo-textile filter fabric. A total of 4,901 linear feet (0.558 acres) of waters of the U.S. would be permanently affected by the construction of the under-drain structure for the refuse fill.

Sediment Pond No. 1: To construct the embankment structure associated with Sediment Pond No. 1, the applicant proposes to temporarily discharge approximately 20.61 cubic yards of clean earthen fill material into 400 linear feet (0.049 acre) of an perennial segment of Channel A (Stump Hollow). Approximately 1,750 linear feet (0.20 acre) of this segment of Channel A would be impounded as a result of the embankment structure.

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

A copy of the Section 404 Clean Water Act 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 coal refuse disposal. In the majority of cases, coal refuse disposal and associated and attendant features and activities does not require siting within a water of the U.S, including wetlands to fulfill its basic purpose. Therefore, coal refuse disposal is not considered to be a water dependent activity. The applicant is required to show there are no other less damaging practicable alternatives available that do not require the discharge of dredged and/or fill material into waters of the U.S., including wetlands, 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, safe, cost-effective and environmentally sound way to dispose of coal refuse (coarse and fine) generated as a result of the coal cleaning and preparation process, the applicant indicated that they developed a no action alternative, evaluated two (2) refuse disposal methods (Coal Refuse Impoundment and Underground Injection), and fifteen (15) alternate refuse disposal locations. All of the alternatives were evaluated using a set of criteria developed in accordance with the SMCRA criteria.


AVOIDANCE AND MINIMIZATION: In evaluating a project area containing waters of the U.S., consideration must first be given to avoiding the discharge of dredged and/or fill material. If waters of the U.S. cannot be avoided, then the discharge of dredged and/or fill material must be minimized. The applicant indicated the proposed project cannot be located in an area that would avoid all discharges of dredged and/or fill material into waters of the U.S. Due to the configuration of the proposed refuse facility and the requirement for it to be located within close proximity to the coal preparation plant, the applicant has indicated that additional infrastructure would not be required, thereby reducing further discharges of fill material into waters of the U.S.

COMPENSATORY MITIGATION PLAN (CMP): The applicant has submitted a conceptual CMP to this office to compensate for the unavoidable discharges of dredged and/or fill material into waters of the U.S. The applicant proposes to utilize the WV In–Lieu Fee Program to compensate for the permanent loss of 4,901 linear feet (0.558 acres) of perennial, intermittent, and ephemeral waters of the U.S and 0.05 acre of wetland and would conduct on-site stream re-establishment to compensate for the temporary loss of 400 linear feet of stream channel associated with the sediment pond construction.

The applicant used the current functional assessment data and the West Virginia Stream and Wetland Valuation Metric (WVSWVM) to assess and correlate the baseline conditions of the areas proposed for the discharge of fill material into waters of the U.S. to determine the necessary amount of compensatory mitigation. Using the WVSWVM, 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 would be 4405.326 Impact Unit Yield (debits) and the total amount of Mitigation Unit Yield (credits) that would be purchased by the applicant would be 4875.22 credits. In addition, the WV SWVM was used to determine the debits and credits associated with the permanent discharge of fill material into 0.05 acre of a palustrine emergent wetland, the applicant would purchase 0.18 wetland credit. As part of our evaluation, the Corps reviews the applicant’s WVSWVM sheets for accuracy.

To off-set the temporary loss of 400 linear feet of perennial stream channel associated with the project, the applicant proposes to restore 400 linear feet of stream channel upon the removal of the embankment structure associated with Sediment Pond No. 1. The stream channel would be re-established after Phase III release (approximately seven years) of the site using natural stream channel design techniques and would be constructed, the maximum extent practicable, to its pre-discharge condition.

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 determine the adequate level of mitigation, in the event a decision is made to issue a permit.


The project lies within the Laurel Creek watershed (12-digit HUC). The Corps is assessing the potential cumulative effects that the proposed stream impacts from the discharge of dredged and/or 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 in the 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. Interested 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-2012-852-ELK

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.



Discharges of Dredged and/or Fill Material into Waters of the U.S. Associated with the

Stump Hollow Slurry Impoundment (O-2018-10)


Stream Name

Flow Regime

Wetland Classification

Proposed Structure/Mining Activity

Extent of Impacts

(Linear Feet/Acreage)

Total Fill Volume below OHW (cubic yards)

Duration of Impact

Channel A

UNT Missouri Creek  (Stump Hollow)



Under-drain Structure for the Coarse Refuse Disposal Area (CRDA)

2,580 lf

(0.346 acre)

207.9 cy


Channel A1

UNT Missouri Creek

(Stump Hollow)


Under-drain Structure for the CRDA

630 lf

(0.08 acre)

45.34 cy


Channel A2

UNT Missouri Creek

(Stump Hollow)



Under-drain Structure for CRDA

1,291 lf

(0.112 acre)

60.53 cy


Wetland A


Under-drain Structure for CRDA

0.05 acre

80.67 cy



Channel A

UNT Missouri Creek

(Stump Hollow)


Sediment Pond

400 lf

(0.049 acre)

20.61 cy



Total Permanent Discharges into Waters of the U.S.



4,501 lf

(0.558 acre)

394 cy


Total Temporary Discharges of Waters of the U.S.



400 lf

(0.049 acre)

20.61 cy