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 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 Section 401 Water Quality Certification for the following application.
APPLICANT: Oxford Mining Company, LLC
P.O. Box 427
Coshocton, Ohio 43812
LOCATION: The proposed 74.2 acre project would be located approximately 4.9 miles south and east of New Lexington, and is west of State Route 13 and adjoins a portion of Pleasant Township Road 312, in Pleasant Township, Perry County, Ohio at Latitude N 39° 39’ 43”, Longitude W 82° 08’ 45”, within the Moxahala Creek watershed. The project can be found on the Deavertown & New Lexington Ohio USGS 7.5 minute quadrangle maps. Moxahala Creek is a direct tributary to the Muskingum River, a traditional navigable water of the United States (see attached Exhibits 1-5).
PROJECT HISTORY: On September 29, 2014, and July 21, 2015, representatives from the Corps conducted a site verification of waters located within the Cannon Reserve Mine Site. Following the site visit a Preliminary Jurisdictional Determination and Approved Jurisdictional Determination were issued for the project on July 5, 2016.
DESCRIPTION OF PROPOSED WORK: The applicant proposes to discharge dredged or fill material into waters of the United States to facilitate the recovery of the Lower Kittanning (No. 5) and the Middle Kittanning (No. 6) coal seams by surface mining. The applicant has requested a Department of the Army permit to discharge dredged and/or fill material into 0.22 acre of one (1) wetland and 4,448 linear feet (lf) or 0.2 acre of waters of the U.S. associated with the construction, operation and reclamation of the proposed Cannon Reserve Surface Mine (CRSM). The discharge of fill material is needed to construct a temporary sediment pond and for the normal progression of surface mining operations. The CRSM project is being reviewed by the Ohio Department of Natural Resources under application No. 10546 pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Plans of the proposal are attached to this notice (Exhibits 1-5).
ALTERNATIVES ANALYSIS: A total of 0.22 acre of one (1) jurisdictional wetland, and 4,443 lf of jurisdictional intermittent and ephemeral stream channels would be permanently filled as a result of the proposal. 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 alternatives analysis that must overcome this presumption. 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. 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 United States cannot be avoided, then the impacts must be minimized. Approximately 0.42 acre of jurisdictional waters of the U.S. are subject to Section 404 Clean Water Act regulation exist on the project site. 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 would meet the overall project purpose. Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed project. The applicant’s project would avoid 21% of the on-site streams and 27% of the on-site wetlands. 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 during construction and mining. Project effluent would be managed pursuant to the approved Section 402 NPDES permit to ensure water quality standards are met.
COMPENSATORY MITIGATION PLAN (CMP): To compensate for the losses of waters of the U.S. associated with the proposed project, the applicant proposes to restore the stream segments and the one wetland permanently lost by a 1:1 ratio for the length of stream and 1.5:1 ratio for the area of wetland. Proposed mitigation stream channels were designed using an integrated natural channel design approach incorporating a two-stage channel design. The low-stage channels are designed to contain the 1.5 year, 6-hour storm event while the entire channel would accommodate the 100 year, 6-hour event. The applicant proposes to revegetate the mitigation riparian areas with a total of 200 tree stems and 400 woody stems per acre, at a minimum width of 50 feet on either side of the reconstructed stream channels within 5 years post construction. The applicant proposes that the constructed wetland would attain a category 2 classification using the Vegetation Index of Biotic Integrity. All mitigation areas would be placed in an environmental covenant which would preserve the area in perpetuity. The CMP proposes a 5-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 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 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. An archaeological review has been conducted on the proposed project site and no archaeological sites were located within the application permit area. However, Fowler cemetery is located in the southeastern corner of the permit area but would be visually separated from the project by a forested buffer. The proposed project would have no effect on historic properties listed on, eligible or potentially eligible for inclusion on the NRHP. A copy of this Public Notice will be sent to the State Historic Preservation Office for their review. Comments concerning archaeological sensitivity of the project area should be based on collected data.
THREATENED AND ENDANGERED SPECIES: The proposed project is located within the known or historic range of the following threatened (T) or endangered (E) species: Indiana bat (Myotis sodalis), northern long-eared bat (Myotis septentrionalis), and the American burying beetle, (Nicrophorus americanus). During August 2016, summer mist net bat surveys were conducted on the proposed Cannon Reserve Mine Site. No Indiana bats or northern long-eared bats were captured during the survey. Based on this information, the proposed project is not likely to adversely affect the continued existence of any threatened or endangered bat species, or result in the destruction or adverse modification of habitat of such species which has been determined to be critical. The Corps is requesting technical assistance from the United States Fish and Wildlife Service (USFWS) in making a determination for the American burying beetle.
This Public Notice serves as a request for concurrence from the USFWS 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 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 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:
United States Army Corps of Engineers
Public Notice No. LRH-2014-746-MUS
502 Eighth Street
Huntington, West Virginia 25701-2070.
Please note, 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 Kyle M. Moore of the Energy Resource Branch, at 513-825-4489.