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LRH 2016-114-HOC

Published Sept. 16, 2016
Expiration date: 10/17/2016

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:            Oxford Mining Company, LLC

P.O. Box 427

Coshocton, Ohio 43812

LOCATIONThe proposed project site encompasses approximately 299.3 acres, including underground work, and is located within Johnson Run and unnamed tributaries of Johnson Run, which are tributaries to Sunday Creek.  The proposed project is situated northwest of the intersection of Oakdale Road and Johnson Run Road, just south of the Athens/Perry County line at latitude 39.54918° North, longitude 82.11158° West, in Trimble Township, Athens County, Ohio. See Attachment Sheet 1.

DESCRIPTION OF THE PROPOSED WORK:  The applicant has requested a Department of the Army permit to discharge dredged and/or fill material into 1,263 linear feet of jurisdictional streams, 2.51 acres of jurisdictional wetlands, and 0.29 acre of jurisdictional open water impoundment as indicated on Attachment Sheets 1 and 2, associated with construction, operation and reclamation of the applicant’s Johnson Run Mining Area Project. Of the 1,263 linear feet of streams, 508 linear feet would be temporarily relocated for mining, 643 linear feet would be mined through, and 112 linear feet would be affected by temporary pond construction.  Additionally, 2.51 acres of wetland and 0.29 acres of open water impoundment would be mined through as a result of the proposal. The discharge of dredged and/or fill material would occur during the coal extraction of the Middle Kittanning No. 6 coal seam, the construction of a dam for a sediment pond, the construction of diversion ditches, the placement of rock protection, 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 (Attachment Sheets 4 - 10).

The applicant's Section 404 permit application is available for public review in the Corps' Regulatory office, by appointment. The Johnson Run Mining Area project is currently under review by the Ohio Department of Natural Resources, Division of Mineral Resources Management (ODNR-DMRM) pursuant to the Surface Mining Control and Reclamation Act of 1977 as a pending application No. 10544.


ALTERNATIVES ANALYSIS: Approximately 2.51 acres of wetland would be affected by the proposed project as well as 1,263 linear feet of jurisdictional streams and 0.29 acre of jurisdictional open water impoundment. The project does not require access or proximity to or siting within the waters 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 the presumption prior to receiving authorization for the discharge of fill material into the wetlands.  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 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 31,700 linear feet of jurisdictional streams, 2.53 acres of jurisdictional wetland, and 1.09 acre of jurisdictional open water are located within the proposed project area.  The applicant has indicated 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 30,437 linear feet of streams (99%) and 0.02 acres of wetlands (<1%).  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 436 linear feet of ephemeral stream, 319 linear feet of intermittent stream, and the temporary relocation of 508 linear feet of perennial stream the applicant proposes to perform permittee-responsible in-kind compensatory mitigation at a 1 to 1 ratio by re-establishing 1,263 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. To compensate for the losses of 2.51 acres of wetlands the applicant proposes to provide permittee-responsible compensatory mitigation at a 1.5 to 1 ratio by establishing a total of 3.76 acres of wetlands upon reclamation of the project site.  The established wetland would have a planted riparian buffer zone with a width of 50-feet. 

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. An archaeological review was conducted for the project site.  The archaeological review investigated historical mapping, soils mapping, aerial photography, and two previous archaeological studies conducted on the project area and in adjacent areas. Of the previous archaeological surveys, two sites, 33AT689 and 33AT691 were the only sites recommended for additional work due to their potential eligibility for the NRHP under Criterion D: sites that have yielded, or may be likely to yield, information important in prehistory or history.  Additionally, five historic drift mine entries were found outside of the proposed project area.  Several former house locations were indicated on historic maps, however, none of these historic structures were found standing and appear to have been demolished.  The archaeological review recommended that no additional work was necessary for the project as proposed.


A copy of this Public Notice will be furnished to State Historic Preservation Officer for their review.  Comments concerning archaeological sensitivity of the project area should be based on collected data.


THREATENED AND ENDANGERED 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 6 acres of potentially suitable forested summer habitat for the Indiana bat and the northern long-eared bat would be cleared to facilitate the completion of the proposed project.  The applicant has informed the Corps that a bat survey was conducted which did not indicate the presence of the threatened or endangered bat species. The Corps has consulted the most recently available information, and based on the applicant’s bat survey results and minor amount of tree clearing relative to the surrounding area, 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.

The proposed project lies within the range of the American burying beetle (Nicrophorus americanus), a federally listed endangered species.  The American burying beetle is considered to be a habitat generalist and information regarding its presence on the project site is not available to the Corps.  Forested and undeveloped areas are considered to be the most important landcover types for the American burying beetle. Given the primarily agricultural nature of the land area to be affected by the proposed project, the relatively minor area of forest clearing, and the ability of the American burying beetle to range over large areas the Corps has determined that the proposed project may affect, but is not likely to adversely affect the American burying beetle.

The project lies within Athens County, which is known to contain several federally endangered freshwater mussel species, including the fanshell (Cyprogenia stegaria), the pink mucket (Lampsilis abrupta), the sheepnose (Plethobasus cyphyus), and the snuffbox (Epiosblasma triquetra).  Freshwater mussel species are found only in perennial streams with persistent baseflow throughout the year.  Freshwater mussel surveys are typically required for projects where the watershed above the work area is greater than 10 square miles.  The watershed at the lowest point of the Johnson Run Mine Area is less than five square miles.  The nearest down-stream waterway known to contain freshwater mussels is Sunday Creek, which is located approximately five miles down-stream from the project site at Glouster.  The applicant proposes to utilize sediment controls on-site, including sediment ponds.  Therefore, the Corps has determined that the proposed project would have no effect on threatened or endangered freshwater mussel species.

Based on the information above, 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 with our determination of effects 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 EFFECTSThis 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:


United States Army Corps of Engineers


Public Notice No. LRH-2016-114-HOC

502 Eighth Street

Huntington, West Virginia 25701-2070.


Please note that comments submitted 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 Mr. Adam Fannin of the Energy Resource Branch at (304) 399-6901.