US Army Corps of Engineers
Huntington District Website Website

Disclaimer

The below listed documents may not be readable via Optical Character Recognition. To receive public notices via email, please send an email to LRH.Permits@usace.army.mil indicating that you would like to be placed on the public notice electronic distribution list. Your email should also include the state(s) in which you would like to receive public notices.

LRH 2009-154-1-KAM

Published Nov. 19, 2015
Expiration date: 12/18/2015

TO WHOM IT MAY CONCERN:  The United States (U.S.) Army Corps of Engineers (Corps) has received an application for a Department of the Army permit, under the provisions of Section 404 of the Clean Water Act (Section 404), for the proposed discharge of fill material into waters of the U.S. in conjunction with the applicant’s proposed Wet Branch Coal Refuse Disposal Facility project (approved by the West Virginia Department of Environmental Protection (WVDEP) under surface mining permit O-3010-08).  This notice serves as the Corps’ request to the WVDEP to act on Section 401 Water Quality Certification for this stated application.

APPLICANT:            Panther, LLC

                                  P.O. Box 1001

                                  Scott Depot, West Virginia 25560

              

LOCATION:  The proposal would discharge fill material into Wet Branch and tributaries of Wet Branch (latitude 38° 09’ 11”, longitude 81° 28’ 14”) approximately 1.5 miles upstream from the confluence with Cabin Creek, and upstream of the community of Dry Branch, Kanawha County, West Virginia.  See the attached Exhibit 1 (Location Maps) and Exhibit 2 (Project Boundary and Stream Delineation).

DESCRIPTION OF THE PROPOSED WORK:  The applicant has obtained an authorization from the WVDEP to construct the Wet Branch Coal Refuse Disposal Facility.  To prepare the site, the applicant proposes to discharge fill material into 190 linear feet (0.023 acre) of stream associated with installing four culverted stream crossings and one low water stream crossing during the construction of haul roads.  One in-stream sediment control pond would also be installed within Wet Branch.  A rock underdrain system would then be installed throughout the disposal facility footprint.  This work would result in the proposed discharge of 169 cubic yards of fill material into 3,789 linear feet (0.28 acre) of intermittent and ephemeral streams, as summarized in Table 1 below.  The attached Exhibit 2 shows the location of each stream proposed to be affected by the discharge of fill material.  See also attached Exhibit 3 – Stream/Underdrain Separation Detail.

 

TABLE 1:

Proposed Mining Activity

Location

Extent of Stream Fill Impacts

(linear feet/acres)

Fill Volume (yd³)

Stream Type

Time Period

Sediment Pond 1R

Trib. of Wet Branch (Channel A)

200/ 0.019

6.59

Intermittent

Temporary

(estimated 8-10 years)

Sediment Pond 1R

Wet Branch

(Channel D)

725/ 0.129

84.56

Intermittent

Temporary

(estimated 8-10 years)

Low Water Crossing (Pond Access Road)

Wet Branch

(Channel D)

30/ 0.006

2.63

Intermittent

Temporary

(estimated 8-10 years)

Stream Crossing (Haulroad 2)

Trib. of Wet Branch (Channel C)

40/ 0.006

2.97

Intermittent

Temporary

(estimated 8-10 years)

Stream Crossing (Haulroad 2)

Trib. of Wet Branch (Channel C-1)

40/ 0.003

1.50

Ephemeral

Temporary

(estimated 8-10 years)

Stream Crossing (Haulroad 3)

Trib. of Wet Branch (Channel C)

40/ 0.006

2.10

Intermittent

Temporary

(estimated 8-10 years)

Stream Crossing (Haulroad 3)

Trib. of Wet Branch

(Channel C-1)

40/ 0.002

0.56

Ephemeral

Temporary

(estimated 8-10 years)

Refuse Fill Area

Trib. of Wet Branch

(Stream A)

1400/

 

0.204

 

73.20

Intermittent

Permanent

Refuse Fill Area

Trib. Of Wet Branch

(Stream A)

1175

Ephemeral

Permanent

Refuse Fill Area

Trib. of Wet Branch

(Stream A-1)

289/ 0.009

4.46

Ephemeral

Permanent

TOTALS

3,979 ft/ 0.38 acre

178.57 yd³

 

 

 

Based on the applicant’s information, the project purpose and need is to establish a refuse disposal facility (including its associated structures and roads) to permanently dispose of an estimated 15 million cubic yards of coarse and fine refuse material to be generated at the applicant’s existing coal preparation plant (WVDEP permit O-0391-00).  Establishing the refuse disposal facility would allow for the continued operation of the existing American Eagle underground mine (WVDEP mining permit U-0391-00), which produces metallurgical and steam quality coal, for an additional estimated seven years. 

The applicant’s Stream/Underdrain Separation Detail (attached as Exhibit 3) shows that the fill material proposed to be discharged into waters of the U.S. within the footprint of the refuse disposal area would consist of clean, durable, non-toxic rock, and compacted soil.  The applicant’s information states the material would be free of clay, coal or other non-durable material.  The rock drain system would be installed with a filter fabric covering, overtopped with an impervious layer and a second drain system.  During road construction, the proposed low water stream crossing would be constructed by installing four culverts (each 30 feet long by 36 inches diameter) placed side by side and discharging grouted rock around the culverts.

No other activity associated with the proposed project would require a Section 404 permit.  The Corps’ scope of review is limited to the proposed discharge of fill material into waters of the U.S. and their adjacent riparian areas.  The Corps is collecting and evaluating available information concerning the potential environmental effects of discharging the proposed fill material into waters of the U.S. on-site.  The applicant has submitted an Environmental Information Document (EID) containing information pertinent to the understanding of the potential direct, indirect and cumulative environmental effects of the proposed discharge of fill material into waters of the U.S.

ALTERNATIVES ANALYSIS:  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 into waters of the U.S.  If waters of the U.S cannot be avoided, then the discharge of dredged and/or fill material must be minimized.    

The applicant estimated that operations at the existing underground mine and preparation plant would require disposal of 24.8 million cubic yards of refuse material during the continued life of the mine.  By implementing operational changes at the existing refuse disposal facility (WVDEP permit O-0002-82), the applicant extended its operational life by three years beyond the previously anticipated period.  Approximately 15 million cubic yards of additional refuse material disposal area are being sought at the proposed site, as sufficient to address the requirements of the underground mine for the length of its existing 10-year mine plan.

The applicant considered alternative project sites that would avoid or minimize adverse effects on the aquatic ecosystem.  A site suitability index was used to evaluate eighteen watersheds to determine practicability based on its capacity, ability to provide transportation infrastructure, ability to meet regulatory requirements, ability to obtain property use rights, efficiency, and adverse effects to the aquatic ecosystem.  The applicant identified no sites that could avoid all discharges of fill material into waters of the U.S.  Of potential alternative sites evaluated, the applicant’s analysis identified only two sites that met State regulatory design requirements (Sites 17 and 18).  During further evaluation, the applicant found that Site 18 did not meet the maximum practicable belting distance (4,000 feet) from the existing preparation plant.  As the only practicable alternative site, the applicant chose Site 17 as the proposed project site.

To minimize the linear feet of stream that would receive fill material, the project was designed such that the crest of the refuse area would be near the ridgeline elevation and the sediment control pond would be located as far upstream as practicable.  The fill material to be discharged into the stream for the underdrain system is proposed as a method to reduce the contact between groundwater and the proposed refuse material in order to minimize indirect project effects to downstream waters.  Best management practices would be used, including temporary sediment/erosion controls, methods to reduce water infiltration, drainage/sediment controls and vegetating disturbed areas. 

COMPENSATORY MITIGATION PLAN (CMP):  The applicant’s submitted EID describes the applicant’s proposed CMP to compensate for the unavoidable discharges of fill material into waters of the U.S.  The applicant used the West Virginia Stream and Wetland Valuation Metric (SWVM) to calculate total stream debits (3,678) and mitigation credits required to achieve a net zero debit/credit balance.  The CMP proposes a combination of (a) the purchase of mitigation credits from a stream mitigation bank (with a service area approved for that area), and (b) the purchase of mitigation credits from the West Virginia In-Lieu Fee (ILF) Program.  The CMP proposes to secure mitigation credits on a phased approach to correspond with the project’s       3-Phase construction schedule over an approximate two-year period, as illustrated in attached Exhibit 3

Phase 1 construction would include installing the sediment pond and haulroad stream crossings. The applicant would purchase credits from an approved stream mitigation bank to meet mitigation required resulting from the Phase 1 construction.  The applicant anticipates that enough credits would be available from a mitigation bank to offset these initial debits.  If not, the remaining debits would be covered by securing ILF credits. 

Phase 2 would consist of constructing the first three lifts of the refuse fill (including the earthen fill) to an elevation of 1,040 feet.  Phase 3 would consist of completing the remainder of the refuse fill area and would incur the remainder of the proposed stream fills.  For Phase 2 and Phase 3 construction, the applicant proposes to purchase mitigation credits through the ILF program.  However, if the applicant finds practicable, off-site permittee-responsible mitigation, the applicant requests the option of submitting a proposed amendment to the CMP for consideration as compensatory mitigation for the discharge of fill material into waters of the U.S. associated with the Phase 2 and/or Phase 3 construction.  The applicant’s summary of permanent stream fill impacts and debits are listed in Table 2 below:

TABLE 2:

STREAM

DEBITS

LINEAR FEET

IMPACT TYPE

STREAM TYPE

Phase 1

Channel A

175

200

Permanent

Intermittent

Channel C-1

60.4

80

Permanent

Ephemeral

Channel C

68.13

80

Permanent

Intermittent

Channel D

678.87

755

Permanent

Intermittent

TOTAL

982.4

1,115

 

 

Phase 2

Channel A

429.04

437.8

Permanent

Intermittent

TOTAL

429.04

437.8

 

 

Phase 3

Channel A

944.52

963.8

Permanent

Intermittent

Channel A

1,060.68

1,173.4

Permanent

Ephemeral

Channel A-1

261.24

289.0

Permanent

Ephemeral

TOTAL

2,266.44

2,426.2

 

 

GRAND TOTAL

3,677.88

3979

 

 

The applicant’s complete Section 404 permit application, environmental information document and compensatory mitigation plan are available to the public for review at the Corps’ office (address above) by appointment.

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 on the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act (Section 106).  The proposed project was reviewed by the West Virginia State Historic Preservation Officer (SHPO).  By letter dated August 25, 2008 (FR# 08-908-KA), the SHPO stated there are no architectural resources eligible for or included on the NRHP that would be impacted by the project.  By letter dated October 23, 2008, the SHPO stated that, based on their field review, no archaeological sites exist in the proposed project area that are in or considered eligible for inclusion in the NRHP.  Based on information from the SHPO, the application, jurisdictional determination, and the current NRHP list, the Corps has determined the proposed project would have no effect on any properties listed on, or that may be eligible for listing on the NRHP.

ENDANGERED/THREATENED SPECIES:  The proposed project lies within the natural range of the federally listed endangered Indiana bat (Myotis sodalis) and the threatened northern long-eared bat (Myotis septentrionalis).  A mist net bat survey was completed during the Spring of 2013.  No open mine portals or other potential hibernacula were observed in the project area. No Indiana bats were captured.  However, since northern long eared bats were captured, the applicant is preparing a Myotid Bat Protection and Enhancement Plan.  This project will be reviewed by WVDEP pursuant to the 1996 Biological Opinion agreement between the U.S. Fish and Wildlife Service (USFWS) and the U.S. Office of Surface Mining. 

This Public Notice serves as coordination with the USFWS concerning federally listed threatened or endangered species, pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended).  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 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 the guidelines published by the United States Environmental Protection Agency pursuant to Section 404(b)(1) of the Clean Water Act (40 CFR 230).  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. The decision will reflect the national concern for both the protection and the 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 the watershed.  The project area drains into Wet Branch of Cabin Creek.  The project lies within the Outlet Cabin Creek 12-digit hydrologic unit watershed 050500060202.

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 may request, in writing, within the comment period specified in the notice, a public hearing be held.  Requests for public hearings shall state, with particularity, the reasons for holding a public hearing.  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

ATTN: CELRH-RD-E, Public Notice No. LRH-2012-290-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 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 contact Richard Berkes of the Energy Resource Branch at (304) 399-6909.