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Published July 8, 2016
Expiration date: 8/6/2016


TO WHOM IT MAY CONCERN: The following applicant has submitted 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 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 Ohio Environmental Protection Agency (OEPA) to act on the Section 401 Water Quality Certification (WQC) for the following application.

APPLICANT: B & N Coal, Inc. 
                      P.O. Box 100 
                      Dexter City, OH 45727

LOCATION: The proposed project site encompasses 163.3 acres and is located within unnamed headwater tributaries of the South Fork of Buffalo Creek and the East Fork of Duck Creek, north of County Road 4 (Cowgill Road) and south of State Route 146 (Zep Road) approximately 4 miles northeast of Sarahsville at latitude 39.821736° North, longitude 81.401279° West, in Marion Township, Noble County, Ohio. See attached Exhibit 1.

DESCRIPTION OF THE PROPOSED WORK: The applicant has requested a Department of the Army permit to discharge dredged and/or fill material into 2,561 linear feet of waters of the U.S., as indicated on Exhibit 2, associated with construction, operation and reclamation of the applicant’s Whigville 5 (D-2332-2) Surface Coal Mine project. The discharge of dredged and/or fill material would occur during the coal extraction of the Meigs Creek No. 9 coal seam, the construction of dams for sediment ponds, the construction of diversion ditches, the placement of rock protection, 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 of the proposal are attached to this notice (Exhibit 3, Sheets 1 thru 7).

The applicant's Section 404 permit application is available for public review in the Corps' Regulatory office, by appointment. The Whigville 5 (D-2332-2) Surface Coal Mine project 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: Approximately 2,561 linear feet of stream channel would be filled as a result of the proposal. In addition, approximately 1,516 linear feet of stream channel would be indirectly effected by sediment transport and impounded water associated with the drainage control structures. 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 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. No permit will be issued until our office determines practicable upland alternatives are not available to achieve the overall project purpose based upon the applicant’s alternative analysis.

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. Approximately 13,474 linear feet of jurisdictional streams, 0.36 acre of jurisdictional wetland and 0.218 acre of open water 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. Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed project. After reviewing the location of the streams and wetlands in relation to the location of the coal reserves, as well as determining the area necessary to construct attendant facilities and reclaim the project area, the applicant revised the permit area to avoid impacts to approximately 9,397 linear feet of streams (69%), 3.92 acres of wetlands (100%), and 0.218 acre of open water (100%). The applicant would utilize best management practices to protect water quality during mining and after the project is completed by 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. Measures proposed to be taken to control drainage around, over and through the mining operation would include the construction of diversion ditches and sediment ponds. 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: To compensate for the losses of 1,820 linear feet of ephemeral streams and 741 linear feet of intermittent streams, and the indirect effects to 1,516 linear feet of streams, the applicant proposes to perform permittee-responsible in-kind mitigation at a 1 to 1 ratio by establishing 4,077 linear feet of stream channels within the project site. A 100 foot riparian buffer zone (50 feet on each side of the stream) would be established along the streams reconstructed within the proposed project area.

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

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 which would be indirectly or directly affected by the proposed work. A Phase 1 cultural resources survey was completed for the proposed project site in 2015. Based on the results detailed in the report titled Phase I Cultural Resource Management Survey of a Proposed B&N Coal, Inc. 86.4 ha (213.6a.) Whigville 5 Application in Marion Township, Noble County, Ohio and dated August 2015, seven new archaeological sites (33No248-254) and one previously identified structure NOB-97-8 were identified at the site. Sites 33No248-251 are 19th to early 20th century historic drift mines. Sites 33No252 and 33No253 represent 19th to 20th century historic foundations and/or historic scatters associated with former residential sites. Site 33No254 represents an unassigned prehistoric isolated find. The previously identified structure NOB-97-8 was a 19th century farmstead recorded by a survey completed in 1979 and the structure been demolished. Sites 33No248-254 and NOB-97-8 are found to be ineligible for listing on the NRHP as they do not meet National Register eligibility criteria and no further work is recommended.

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 State Historic Preservation Office (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). Approximately 130 acres of known suitable forested summer habitat for the Indiana bat and the northern long-eared bat are located within the project area and would be cleared to facilitate the completion of the proposed project. The project area is not located within 150 feet of a known maternity roost tree or within 0.25 mile of a known hibernaculum. The applicant has indicated tree clearing operations at the site would not occur between April 1 to October 31. The Corps has consulted the most recently available information, and based on the applicants proposed implementation of seasonal tree clearing and the development of an Indiana bat Protection and Enhancement Plan, 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 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 United States Environmental Protection Agency pursuant to Section 404(b) (1) of the Clean Water Act (40 CFR part 230). 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 benefit which 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; among those factors 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.

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-2015-213

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 Rebecca Black of the Energy Resource Branch at (304) 399-5610.