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LRH 2015-1094-TUS

Published Dec. 30, 2015
Expiration date: 1/29/2016

TO WHOM IT MAY CONCERN: The following application has been submitted for a Department of the Army (DA) Permit under the provisions of Section 404 of the Clean Water Act (Section 404). This notice serves as the United States (U.S.) Army Corps of Engineers’ (Corps) request to the Ohio Environmental Protection Agency (OEPA) to act on the Section 401 Water Quality Certification for the following application.

 APPLICANT:           Oxford Mining Company, LLC

                                  Post Office Box 427

                                  Coshocton, Ohio 43812


LOCATION: As depicted on the attached Exhibit 1 and Exhibit 2 (Sheets 1 and 2 of 3), the proposed project site encompasses 302.3 acres and is located within unnamed tributaries of Browning Run and adjacent wetlands, approximately 5.5 miles northeast of Newcomerstown, both north and south of Township Road 124 (Gibson Road and Enos Road) at latitude 40.29805° North, longitude -81.49280° West, in Clay, Salem and Washington Townships, Tuscarawas County, Ohio.

DESCRIPTION OF THE PROPOSED WORK: The applicant proposes to discharge approximately 13,150 cubic yards of dredged and/or fill material into 1,274 linear feet (lf) of ephemeral streams, 5,387 lf of intermittent streams, and 7.96 acres of emergent wetlands (see Table 1 below) associated with the construction, operation and reclamation of the applicant’s 302.3 acre Hunt Adjacent 4 Mining Area (D-2226-4) project. The discharge of dredged and/or fill material would occur during coal extraction (surface and auger methods) of the Middle Kittanning No. 6 coal seam, the construction of a sediment pond and diversion ditches, the disposal of the excess overburden material, and the reclamation of the site. The proposed mining operation has an expected life of five years.  Plans for the proposed project are attached to this notice (Sheets 1-3).


Table 1: Proposed Discharge of Dredged and/or Fill Material into Waters of the U.S.

Aquatic Resource ID

Aquatic Resource Type

Stream Length proposed to be filled (linear feet)

Acreage proposed to be filled

Cubic Yards of dredged and/or fill material

Proposed Mining Activity

Stream 14





Mine Through

Stream 27





Mine Through, Disposal of Excess Spoil, Temporary Pond, and Wetland Mitigation Area

Stream 3





Mine Through

Stream 5





Mine Through

Stream 7





Disposal of Excess Spoil

Stream 11





Mine Through

Stream 17





Mine Through

Wetland A





Mine Through

Wetland B





Mine Through

Wetland C





Mine Through

The applicant's Section 404 permit application, including the compensatory mitigation plan and alternative analysis, is available for public review in the Corps' Regulatory office, by appointment.  The Hunt Adjacent 4 Mining Area is currently being reviewed by the Ohio Department of Natural Resources, Division of Mineral Resources Management pursuant to the Surface Mining Control and Reclamation Act of 1977.

ALTERNATIVES ANALYSIS:  The project does not require access or proximity to or siting within the wetlands to fulfill its basic purpose and is considered a non-water dependent activity.  The Section 404(b)(1) Guidelines state that for non-water dependent activities in special aquatic sites, 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 that presumption prior to receiving authorization for the discharge of dredged and/or fill material into the wetlands.  The applicant has submitted the required alternatives analysis. 

The applicant's stated overall project purpose is to develop and mine coal reserves in the Middle Kittanning No. 6 coal seam within the identified project area. The applicant has developed three alternatives (preferred, minimal, and no-impact) analyzing how the mining operation, as well as the discharge of dredged and/or fill material into streams, could be conducted in order to avoid and minimize impacts to aquatic resources. The alternative must fulfill the applicant’s overall project purpose. The applicant’s preferred alternative would result in the discharge of dredged and/or fill material into 1,274 lf of ephemeral streams, 5,387 lf of intermittent streams, and 7.96 acres of emergent wetlands. The minimal alternative would result in the discharge of 1,274 lf of ephemeral streams, 4,289 lf of intermittent streams, and 7.25 acres of emergent wetlands. The no-impact alternative would not involve discharges of dredged and/or fill material into waters of the U.S.  The applicant’s preferred alternative is shown on the attached Exhibit 3 (Sheets 3a and 3b of 3).  No permit will be issued unless the alternatives analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.

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 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. Approximately 24,122 lf of jurisdictional stream and 11.88 acres of jurisdictional wetlands are located within the proposed project area. The applicant has indicated that there is no practicable alternative for the proposed project that completely avoids the discharge of dredged and/or fill material into waters of the U.S. and will meet the overall project purpose. After reviewing the location of the streams and the wetlands in the project area in relation to the location of the coal reserves, the applicant revised the permit area to avoid impacts to approximately 17,461 lf of streams (72%) and 3.92 acres of wetlands (33%). The applicant will utilize best management practices to protect water quality during mining and after the project is completed following the requirements of the National Pollutant Discharge Elimination System program. The applicant proposes to use sediment control structures to prevent the contribution of solids to streams located downstream of the project. During construction, the temporary sediment control structures may include temporary silt basins, ditches, straw/hay bale fencing, and cloth filter fences. Measures proposed to be taken to control drainage around, over and through the mining operation would include the construction of sediment ditches, diversion ditches, culverts, flumes, and drains. Timely construction and maintenance of sediment control structures combined with concurrent reclamation and revegetation of disturbed areas will also minimize any downstream sediment impacts.

COMPENSATORY MITIGATION PLAN: The applicant has submitted a compensatory mitigation plan to compensate for the unavoidable discharges of dredged and/or fill material into waters of the U.S.  To compensate for the discharge of dredged and/or fill material into 7.96 acres of emergent wetlands, the applicant proposes to perform permittee-responsible on-site and off-site, in-kind mitigation at a 1.5 to 1 ratio by establishing 12.4 acres of emergent wetlands. Approximately eight acres of emergent wetlands would be re-established on the project site and 4.4 acres of emergent wetlands would be established on the adjacent Hunt Mining Area (D-2226) located one mile southeast of the project area at latitude 40.8812° North, longitude 81.47686° West.  To compensate for the discharge of dredged and/or fill material into 1,274 lf of ephemeral streams, and 5,387 lf of intermittent streams, the applicant proposes to perform permittee-responsible in-kind mitigation at a 1 to 1 ratio by establishing 6,661 linear feet of stream channels within the project site.  Mitigation activities would commence during the first suitable planting season after the area is reclaimed and revegetated. The projected timeframe for mitigation completion is approximately one year after reclamation.

The applicant proposes to establish a 100 foot buffer zone along the streams reconstructed within the proposed project area (50 feet on each side of the stream).  Additionally, the applicant proposes to establish a 50 foot buffer around the perimeter of the constructed on- and off-site wetlands.  The buffer zones would be planted with a mixture of native trees and shrubs and would be monitored for a period of five years for survivability.

WATER QUALITY CERTIFICATION:  An individual Section 401 Water Quality Certification is required for this project. It is the applicant's responsibility to obtain certification from the OEPA.

HISTORIC AND CULTURAL RESOURCES: The applicant completed a preliminary historic properties identification which included a records review and a visual inspection of the project area. The records review included the National Register of Historic Places (NRHP) files, the Mills Atlas, the Ohio Archaeological Inventory (OAI), the Ohio Historic Inventory (OHI), Cultural Resource Management (CRM) survey files, and historic atlases and maps. No historic properties listed on the NRHP were identified within the proposed project area. However, a Phase I archaeological survey and an architectural survey were recommended for several areas identified within the project area.

This public notice serves as coordination with the Ohio State Historic Preservation Office (SHPO) concerning any properties that may be eligible for or listed in the NRHP, in accordance with Section 106 of the National Historic Preservation Act. Comments concerning archaeological sensitivity of the project area should be based on collected data.  It is requested the SHPO provide any information they may have to the Corps by the close of the public comment period.  Additional coordination with the SHPO will be conducted upon receipt and review of the completed Phase I archaeological survey and architectural survey.

ENDANGERED/THREATENED SPECIES: The project is located within the known or historic range of the following federally-protected species:   the endangered Indiana bat (Myotis sodalis) and the threatened northern long-eared bat (Myotis septentrionalis).  Approximately 251 acres of potentially suitable forested summer habitat for the Indiana bat and the northern long-eared bat are located within the project area. In order to facilitate the completion of the proposed project, approximately 104.4 acres of forested habitat would be cleared. The applicant has prepared a Protection and Enhancement Plan to minimize potential effects to these aforementioned bat species.  The applicant has agreed to conduct tree clearing operations prior to April 1 and September 30.  We have determined the proposed project may affect, but is not likely to adversely affect either the Indiana bat or the northern long-eared bat. 

Based on this information, the proposed project is not likely to adversely affect the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of habitat of such species which has been determined to be critical.  This Public Notice serves as a request for concurrence from the United States Fish and Wildlife Service pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended). 

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 project lies within the Tuscarawas River Dunlap Creek watershed (hydrologic unit code 05040001-1801). The Corps is assessing the potential cumulative effects that the proposed fill discharges into jurisdictional waters of the U.S. may have on public interest factors when considered with other activities in the subject 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 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-2015-1094-TUS

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 call Rebecca Black of the Energy Resource Branch, at 740-454-2225, extension 7.