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LRH 2013-997-GUY

Published Oct. 6, 2015
Expiration date: 11/4/2015

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: 

APPLICANT:  Pocahontas Coal Company, LLC
                       109 Appalachian Drive
                       Beckley, WV  25801

LOCATION:  The proposed project is located approximately 1.8 miles south of Rhodell, in Raleigh County, West Virginia. The project site is located at latitude 37 º34’58” and longitude
81º18’18” and is located on the Rhodell USGS Quadrangle map. The proposed project would be constructed in Devils Fork and its unnamed tributaries, unnamed tributaries of Beetree Branch, and wetlands adjacent to Devils Fork and Beetree Branch.  Beetree Branch flows into Devils Fork, which is a direct tributary of the Guyandotte 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 removal of approximately 2.1 million tons of bituminous (metallurgical) coal at the proposed Devils Fork Highwall Mine No. 2 over a period of three (3) years.  The coal would be removed via the contour/highwall mining method. The applicant has applied to the West Virginia Department of Environmental Protection (WVDEP) for the required Surface Mining Control and Reclamation Act (SMCRA) permit (S-3010-13) for this proposal.

The proposal would consist of the discharge of dredged and/or fill material into 4,462 linear feet of intermittent tributaries and 153 linear feet of ephemeral tributaries of Devils Branch and Beetree Branch in conjunction with mine-through and backfilling activities at the site.  The proposal would also include the permanent discharge of dredged and/or fill material into 3.27 acres of ten (10) palustrine emergent wetlands in conjunction with mine-through and backfilling activities.  The proposal would include the construction of two (2) temporary road crossings in 143 linear feet of Devils Fork, a perennial stream channel.  The road crossings would be removed at the end of the mining activities and the stream restored to its pre-construction condition.  No in-stream valley fills or in-stream sediment ponds are proposed for this project. A total of 4,758 linear feet of twenty-six (26) stream channels and 3.27 acres of ten (10) palustrine emergent wetlands would be filled by the mining activities at the site.  Approximately 1,820 cubic yards of dredged and/or fill material would be discharged into waters of the U.S. See Table 1 for proposed discharges of dredged and/or fill material into waters of the U.S.

The proposal would consist of both permanent and temporary discharges of dredged and/or fill material into waters of the U.S. in conjunction with the mine-through activities.  Permanent impacts would occur in stream channels and wetlands that cannot be re-established in the same area.  For this proposal, fourteen (14) stream channels totaling 2,323 linear feet and ten (10) wetlands totaling 3.27 acres would be permanently impacted by the discharge of dredged and/or fill material. Temporary impacts would occur in stream channels that would be re-established in the same area. For this proposal, eleven (11) stream channels totaling 2,435 linear feet would be temporarily impacted by the discharge of dredged and/or fill material and then would be re-established as a part of the compensatory mitigation plan. 

With respect to the mine-through activities, the stream channels and wetlands within the proposed permit boundaries would be excavated in order to recover coal resources that lie directly below and adjacent to the water bodies.  These areas would then be backfilled, regraded, and a portion of the stream channels would be re-established.  According to the applicant, due to the site topography, it is not practicable to recover the coal reserves and reclaim the area without disturbance of waters of the U.S. It is estimated that a total of 1,820 cubic yards of overburden material would either be excavated from or placed within waters of the U.S. in conjunction the proposed mining activities.  These discharges would take place in conjunction with backfilling, reclamation, and re-establishment of the affected mine-through segments. All of the material would be generated by the proposed surface mining process and would predominantly consist of fractured overburden rock (sandstone and shale).  All coal seams would be removed from the project area for processing or direct shipment.  No refuse, pit cleanings, or coal waste would be placed in or near jurisdictional waters.

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 removal.  Coal removal and its associated and attendant features and activities do not require access, proximity to, or siting within a water of the U.S., including wetlands, to fulfill its basic purpose.  Therefore, coal removal is not considered to be a water dependent activity. The Section 404 (b)(1) Guidelines state for non-water dependent activities, practicable alternatives that do not involve wetlands are presumed to be available, unless clearly demonstrated otherwise.  The applicant is required to provide an alternative analysis that must overcome this presumption prior to receiving authorization for the discharge of dredged and/or fill material. No permit would be issued unless the alternative 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 remove the coal resources, the applicant considered underground mining methods, surface mining methods (contour mining, area mining, and dragline mining), excess overburden disposal methods (upland disposal, valley fill disposal, off-site disposal), reduction of project scope, and sediment control placement options.  The applicant indicated that they have considered and implemented construction and other techniques to avoid, reduce, and minimize discharges of dredged and/or fill material into waters of the U.S. All of the alternatives were evaluated using a set of criteria developed in accordance with the SMCRA criteria. The applicant’s alternatives analysis is currently being reviewed by this office. 

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., including wetlands, cannot be avoided, then the discharge of dredged and/or fill material must be minimized. The applicant indicated they have evaluated all of the project alternatives and have determined there is not a practicable alternative that would avoid all discharges of dredged and/or fill material into waters of the U.S. The applicant has designed the site to eliminate the requirement for valley fills and in-stream sediment ponds that would help to reduce degradation to waters of the U.S., the aquatic ecosystem, and environmental impacts.  The applicant has also developed a comprehensive list of Best Management Practices (BMP’s) to help minimize adverse effects to waters of the U.S. and the aquatic ecosystem. 

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.  To off-set the temporary loss of 2,435 linear feet of stream channel, the applicant proposes to re-establish 2,887 linear feet of intermittent and perennial stream channel at nine (9) temporary mine-through locations and two (2) temporary road crossing locations on-site. To off-set the permanent loss of 2,323 linear feet of stream channel, the applicant proposes to enhance 2,445 linear feet of an intermittent segment of Beetree Branch on-site.  The enhancements would include bank stabilization, riparian plantings, bankfull benches, debris and sediment removal. The stream work would be conducted utilizing Natural Stream Channel Design protocols. To off-set the permanent loss of 3.27 acres of emergent wetlands, the applicant proposes to create 4.59 acres of wetlands and 1.16 acres of open water habitat and establish jurisdictional connectivity to unnamed tributaries of Tommy Creek at the adjacent reclaimed Tommy Creek Highwall Mine No. 1.  All of the mitigation streams and wetlands would be protected in perpetuity via a conservation easement.  
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 dredged and/or 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 discharges of dredged and/or fill material into waters of the U.S. at the site would be 2,830 Impact Unit Yield (debits) for the stream channels and 6.53 debits for the wetlands.  The total amount of Mitigation Unit Yield (credits) to be generated by the proposed compensatory mitigation would be 3,800 credits for the stream mitigation and 6.76 credits for the wetland mitigation. As part of our evaluation, the Corps reviews the applicant’s WVSWVM sheets for accuracy. 

The applicant’s CMP is currently under evaluation, 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 an authorization for the proposed project. 
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.  A copy of this public notice will be sent to the WVDCH for 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 threatened northern long-eared bat (Myotis septentrionalis). 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 Devils Fork 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 the 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-2013-997-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 Dredged and/or Fill Material into Waters of the U.S. Associated with the

Devils Fork Highwall Mine No. 2 (S-3010-13)

LRH-2013-997-GUY

Stream Name

Flow Regime

Proposed Structure/Mining Activity

Station No.

Extent of Discharges

(Linear Feet/Acreage)

Cubic Yards of Fill and/or Dredged Material

Duration of Impact

Devils Fork Tributaries

2nd Right UNT

Intermittent

Mine-Through

5+24 - 5+81

57 lf

0.006 acre

7.8 cy

Permanent

6th Right UNT

Ephemeral

Mine-Through

5+64 - 6+45

81 lf

0.007 acre

25.7 cy

Permanent

Scour 5

Intermittent

Mine-Through

7+10 - 8+00

90 lf

0.021 acre

147.7 cy

Permanent

2nd Left UNT of 2nd Left UNT

Ephemeral

Mine-Through

4+78 - 5+50

72 lf

0.004 acre

3.3 cy

Permanent

Scour 7

Intermittent

Mine-Through

2+44 - 4+16

172 lf

0.013 acre

6.5 cy

Permanent

Scour 7 Left Channel

Intermittent

Mine-Through

0+00 - 1+61

161 lf

0.015 acre

7.3 cy

Permanent

1st Left UNT 3rd Right UNT of 2nd Left UNT

Intermittent

Mine-Through

1+65 - 1+96

31 lf

0.003 acre

4.5 cy

Permanent

Scour 10

Intermittent

Mine-Through

0+89 - 1+16

29 lf

0.001 acre

1.3 cy

Permanent

3rd Left UNT of 2nd Left UNT

Intermittent

Mine-Through

2+13 - 4+02

189 lf

0.019 acre

19.1 cy

Permanent

7th Right UNT

Intermittent

Mine-Through

13+66 - 16+49

283 lf

0.027 acre

58.0 cy

Permanent

2nd Left UNT of 3rd Left UNT

Intermittent

Mine-Through

0+68 - 5+88

520 lf

0.028 acre

20.3 cy

Permanent

2nd Left UNT of 3rd Left UNT

Intermittent

Mine-Through

13+51 - 15+64

213 lf

0.014 acre

10.1 cy

Permanent

 

2nd Right UNT of 2nd Left UNT

Intermittent

Mine-Through

4+86 - 5+13

27 lf

0.003

4.4 cy

Temporary

2nd Right UNT of 2nd Left UNT

Intermittent

Mine-Through

9+65 - 11+27

162 lf

0.013 acre

12.0 cy

Temporary

3rd Right UNT of 2nd Left UNT

Intermittent

Mine-Through

17+59 - 19+85

226 lf

0.027 acre

30.4 cy

Temporary

4th Right UNT of 2nd Left UNT

Intermittent

Mine-Through

8+06 - 10+02

196 lf

0.018 acre

18.4 cy

Temporary

4th Left UNT of 2nd Left UNT

Intermittent

Mine-Through

0+96 - 2+82

186 lf

0.017 acre

14.9 cy

Temporary

5th Left UNT of 2nd Left UNT

Intermittent

Mine-Through

0+16 - 2+33

217 lf

0.016 acre

15.7 cy

Temporary

2nd Left UNT

Intermittent

Mine-Through

64+41 - 66+49

208 lf

0.021 acre

22.8 cy

Temporary

3rd Left UNT

Intermittent

Mine-Through

27+45 - 28+11

66 lf

0.006 acre

7.8 cy

Temporary

TOTAL PERMANENT  

DISCHARGES

Devils Fork Tributaries

1,898 lf

0.158 acre

311.6 CY

 

TOTAL TEMPORARY DISCHARGES

1,288 lf

0.121 acre

126.4 cy

 

Beetree Branch Tributaries

1st Right UNT

Intermittent

Mine-Through

13+69 - 16+18

249 lf

0.070 acre

96.2 cy

Permanent

1st Right UNT

Intermittent

Mine-Through

16+63 - 18+39

176 lf

0.027 acre

41.2 cy

Permanent

1st Right UNT of 1st Right UNT

Intermittent

Mine-Through

1+46 - 5+86

440 lf

0.041 acre

55.3 cy

Temporary

2nd Left UNT of 1st Right UNT

Intermittent

Mine-Through

5+31 - 10+95

564 lf

0.06 acre

84.8 cy

Temporary

 

 

 

 

 

 

TOTAL PERMANENT DISCHARGES

Beetree Branch Tributaries

 

425 lf

0.198 acre

137.4 cy

 

TOTAL TEMPORARY DISCHARGES

 

 

1,004 lf

0.10

140.1 cy

 

PERMANENT DISCHARGES ASSOCIATED WITH MINE-THROUGH ACTIVITIES

3,186 LF

0.325 ACRE

451.7 CY

TEMPORARY DISCHARGES ASSOCIATED WITH MINE-THROUGH ACTIVITIES

2,292 LF

0.221 ACRE

266.5 CY

TOTAL PERMANENT & TEMPORARY DISCHARGES ASSOCIATED WITH MINE-THROUGH ACTIVITIES

4,615 LF

0.546 ACRE

718.2

 

Wetlands adjacent to Devils Fork and Beetree Branch

Wetland WL 7

PEM

Mine-Through

0.077 acre

--

Permanent

Wetland WL 13

PEM

Mine-Through

0.620 acre

--

Permanent

Wetland WL 31

PEM & Open Water

Mine-Through

0.157 acre

--

Permanent

Wetland WL 16

PEM

Mine-Through

0.067 acre

--

Permanent

Wetland WL 17

PEM

Mine-Through

0.665 acre

--

Permanent

Wetland WL 19

PEM & Open Water

Mine-Through

0.460 acre

--

Permanent

Wetland WL 21

PEM

Mine-Through

0.262 acre

--

Permanent

Wetland WL 8

PEM

Mine-Through

0.052 acre

--

Permanent

Wetland WL 9

PEM

Mine-Through

0.491 acre

--

Permanent

Wetland WL 4

PEM

Mine-Through

0.416 acre

--

Permanent

TOTAL DISCHARGES INTO WETLANDS ASSOCIATED WITH MINE-THROUGH ACTIVITIES

3.267 ACRES

Temporary Culverted Road Crossings

Devils Fork

Perennial

Culverted Road Crossing

1+50 - 2+30

80 lf

0.110 acre

1,074.9 cy

Temporary Stream Crossing

2nd Left UNT  Devils Fork

Perennial

Culverted Road Crossing

39+47 - 40+10

63 lf

0.020 acre

29.4 cy

Temporary Stream Crossing

TOTAL TEMPORARY DISCHARGES INTO STREAMS ASSOCIATED WITH CULVERTED ROAD CROSSINGS

143 lf

0.13 acre

1,104.3 CY

 

 

TOTAL PERMANENT DISCHARGES INTO WATERS OF THE U.S.

2,323 lf stream

0.325 acre

3.267 acres wetlands

 

TOTAL TEMPORARY DISCHARGES INTO WATERS OF THE U.S.

2,435 lf stream

0.351 acre

 

4,758 lf stream

0.676 acre