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Published June 28, 2016
Expiration date: 7/28/2016

TO WHOM IT MAY CONCERNThe following applicant has submitted an application for a Department of the Army Permit under the provisions of Section 404 of the Clean Water Act for the proposed discharge of dredged and/or fill material into waters of the United States (U.S.).  This notice serves as the United States Army Corps of Engineers’ (Corps) request to the West Virginia Department of Environmental Protection (WVDEP) to act on the Section 401 Water Quality Certification (WQC) for the following application.

APPLICANT:            Consol of Kentucky, Inc. (Consol)

                                    P.O. Box 76

                                    Naugatuck, WV 25685

LOCATION:  The proposed project is located at Latitude N 37° 48’ 22”, Longitude W 82° 08’ 43”, in headwater tributaries of Laurel Fork and Right Fork of Laurel Fork of Pigeon Creek of the Tug Fork, a traditional navigable water of the U.S., approximately 3.6 miles northeast of Myrtle, Mingo County, West Virginia.  See attached Exhibits A-D.

PROJECT HISTORY:  On February 3, 2015, the Corps authorized under a Nationwide Permit 21 verification the discharge of dredged and/or fill material into waters of the U.S. associated with the construction, operation and reclamation of the Twin Branch Surface Mine approved under WVDEP Permit No. S-5004-02 pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA).


DESCRIPTION OF THE PROPOSED WORK:  The applicant has requested a Department of the Army permit to discharge dredged and/or fill material into 1,086 linear feet of waters of the U.S., as indicated on Exhibit E, associated with construction, operation and reclamation of the Twin Branch East Incidental Boundary Revision #1 (IBR 1) approved under WVDEP Permit No. O-5003-14, IBR 1, pursuant to the SMCRA.  The proposed project would involve the construction of one valley fill (Valley Fill 3) and one sediment pond (Pond 1).







Original design calculations indicated all excess overburden material could be placed on adjacent, previously mined upland areas.  However, since starting the project in 2013, the project has generated more excess overburden than previously calculated by Consol, and has encountered operational difficulties affecting the ability to backfill as rapidly and as vertically as expected without jeopardizing the overall mine production, safety, and efficiency. The applicant has indicated unless additional area for excess overburden disposal is obtained in the near-term, the Twin Branch Surface Mine operation would become “spoil bound” and curtailment or cessation of production would be required. 


In order to complete the Twin Branch Surface Mine project, Consol proposes to construct a valley fill to accommodate the storage of generated excess overburden material.  Construction of Valley Fill 3 would result in the permanent discharge of dredged and/or fill material into 650 linear feet of intermittent stream and 50 linear feet of ephemeral stream.  Prior to the construction of the valley fill, a sediment pond would be constructed downstream of the proposed location of the valley fill toe.  Construction of Pond 1 would result in the temporary discharge of dredged and/or fill material into 386 linear feet of intermittent stream.  A copy of the application, including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.) are available for public review in the Huntington District Office, by appointment.  Plans for the proposed project are attached to the Public Notice. 

ALTERNATIVES ANALYSIS: A total of 1,086 linear feet of streams would be filled by the proposed project.  The applicant has submitted the required alternatives analysis and it is currently under review.  A complete copy of the applicant’s alternatives analysis can be reviewed by appointment at the above address.  The applicant has indicated the designated overburden storage areas would not accommodate all of the excess overburden now calculated to be generated on the Twin Branch Surface Mine.  The applicant evaluated thirteen potential overburden disposal sites based on capacity, stability, distance, cost, property control, and impacts to aquatic resources.  Based on this evaluation, the applicant selected Site I as its preferred alternative.  No permit will be issued until we have determined that the alternative 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 United States, consideration must be given to avoiding impacts on these sites. If waters of the U.S. cannot be avoided, then impacts must be minimized.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed project.  The proposed in-stream pond, required to meet the requirements of the National Pollutant Discharge Elimination System (NPDES) program, would be constructed as close as practicable to the toe of the proposed valley fill.  Temporary sediment controls such as silt fence, straw bales, rock checks, dikes, and/or protective stream barriers would be used to prevent and minimize downstream sedimentation.  In-stream construction activities would occur during low flow periods to the greatest extent practicable.  Standard best management practices would be used.  Project effluent would be managed pursuant to the approved Section 402 NPDES permit to ensure water quality standards are met.  


Proposed measures to minimize elevated downstream ionic strength would include: adhering to the material handling plan and the reclamation plan; using durable, non-toxic rock for the valley fill underdrain system; wrapping the underdrain rock with filter fabric; minimizing water contact with the discharged material; and timely re-vegetation and stream restoration.  Monitoring and other measures found in the applicant’s Aquatic Ecosystem Protection Plan would also be implemented to minimize effects to the aquatic ecosystem.

COMPENSATORY MITIGATION PLAN (CMP): To compensate for the losses of waters of the U.S. associated with the proposed project, the applicant proposes to: purchase mitigation bank credits from a federally-approved mitigation bank; and restore the stream segments temporarily affected by sediment pond construction upon reclamation of the site.  To determine the amount of compensatory mitigation, Consol used the Corps’ “West Virginia Stream and Wetland Valuation Metric” (SWVM), which compares baseline data with anticipated or actual post-mitigation data to calculate impact debits and required or achieved mitigation credits.  Using the SWVM, Consol calculated the proposed Twin Branch East IBR-1 activity would result in 928.3 impact debits (as summarized in attached Exhibit E). 

The streams affected by sediment pond construction would be re-constructed to exhibit pattern, profile, dimension, substrate composition, in-stream structure, and habitat features based on pre-project configuration and appropriate reference reach regression data for similarly sized watersheds and channel slope.  The primary stream channel would be constructed as an inset “bankfull” cross section to pass storm events of ~1½ year recurrence interval, within a larger trapezoidal "flood-prone" cross section (secondary channel) to pass a 100-year, 24-hour storm flow.  Appropriate in-stream structures such as cross-vanes, boulder clusters, root wads, large woody debris, would be installed to provide aquatic habitat, to promote riffle/pool sequences, or to create step/pools for grade control.  A forested riparian buffer zone (150 feet wide on each bank) would be re-established at a minimum 320 trees/shrubs per acre.  The CMP objectives include attaining, at site maturity, an overall net gain in functional credits (from mitigation) versus functional debits (from stream impacts) as measured by comparing post-mitigation versus pre-project SWVM assessment scores (inclusive of any stream mitigation bank credits acquired).  Site protection would be provided via deed restrictions.  The CMP includes a 10-year monitoring and adaptive management plan to assess the success of the mitigation sites using geomorphic, biological and habitat assessment tools.

WATER QUALITY CERTIFICATION: A Section 401 WQC is required for the proposed activity, pursuant to Section 401 of the Clean Water Act. The applicant has applied for an individual WQC with the WVDEP.

HISTORIC AND CULTURAL RESOURCES:  The National Register of Historic Places

(NRHP) has been consulted and it has been determined there are no properties currently listed on the NRHP that would be indirectly or directly affected by the proposed work.  Via a letter dated July 23, 2015, the West Virginia State Historic Preservation Office (SHPO) stated  “it is our opinion that (there are) no historic properties that will be affected by this project” and “… no historic archaeological properties are present within the proposed project area.  No further consultation is necessary…”.   Based on the above, the Corps has determined the undertaking would have no effect on properties listed or eligible for listing on the NRHP.  This Public Notice




serves as coordination with the SHPO, pursuant to Section 106 of the National Historic Preservation Act of 1966. A copy of this Public Notice will be furnished to SHPO for their review.  Comments concerning archaeological sensitivity of the project area should be based on collected data.


ENDANGERED AND 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).  During August 2012, summer mist net bat surveys and winter portal surveys were conducted on the Twin Branch Surface Mine site and the Twin Branch East IBR-1 site.  No Indiana bats were captured during the survey efforts; however, several northern long-eared bats were captured.  The WVDEP has completed consultation pursuant to Section 7 of the Endangered Species Act with the West Virginia Division of Natural Resources, on behalf of the U.S. Fish and Wildlife Services (USFWS), for both the Twin Branch East IBR No. 1 (O-5003-14) site and the Twin Branch Surface Mine site (S-5002-04).  In letters dated February 18, 2016 (relevant to Twin Branch East IBR No. 1) and March 22, 2016 (relevant to Twin Branch Surface Mine) the WVDEP stated: “Since the release of the northern long-eared bat Section 4(d) rule, it has been determined that the Protection and Enhancement Plan (PEP) that you submitted to address possible take of the northern long-eared bat is no longer necessary. Your permit…is not within a known terrestrial buffer of a threatened or endangered and species.” Based on this information, the Corps has determined the proposed project is not likely to adversely affect the northern long-eared bat and would have no effect on other listed species. 

This Public Notice serves as a request for concurrence from the USFWS with the aforementioned effect determinations and for any additional information they may have on whether any listed or proposed to be listed endangered or threatened species may be present in the area which would be affected by the activity, 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 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 impact, 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 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 dredged and/or 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 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 (HUC) watershed to analyze past and present activities that may currently be affecting the watershed.  The active Twin Branch Surface Mine and the proposed Twin Branch East IBR-1 areas lie within the Laurel Fork 12-digit HUC watershed 050702010402 (21,195 acres).  The Right Fork of Laurel Fork is included in the Draft 2014 West Virginia Section 303(d) list as biologically impaired (based on the West Virginia Stream Condition Index [WVSCI] data) from its mouth to mile 6.74. 


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, that a public hearing be held to consider the application.  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

502 Eighth Street

Huntington, West Virginia 25701-2070

ATTN: CELRH-RD-E, Public Notice No. LRH-2015-1013


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 the above, please contact Richard Berkes of the Energy Resource Branch at (304) 399-5610.