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 West Virginia Department of Environmental Protection (WVDEP) to act on Section 401 Water Quality Certification (WQC) for the following application.
APPLICANT: Warrior Energy Resources, LLC
111 Freeport Road
Pittsburgh, PA 15215
LOCATION: As shown on the attached Sheet 1 of 8, the proposed project is located approximately 2.1 miles southwest of Crighton, and 2.2 miles east of Burdette, in Greenbrier County, West Virginia. Its approximate center is located at Latitude 38.048333˚, Longitude 80.763055˚. Waters on-site drain into tributaries of Toms Creek and Burdette Creek of the Meadow River, a direct tributary to the Gauley River, a navigable water of the U.S.
DESCRIPTION OF THE PROPOSED WORK: As shown on the attached Sheet 2 of 8, the applicant has requested a Department of the Army permit to discharge dredged and/or fill material into 896 linear feet of ten streams, 0.27 acre of two emergent wetlands, 1.26 acres of six on-bench ponds in conjunction with the construction, operation and reclamation of the Sewell Valley No. 2 surface coal mine project. The discharge of dredged and/or fill material into these waters (summarized in the attached Exhibit D [Sheet 4 of 8]) would occur during the construction of the on-bench sediment control structures and the recovery of coal reserves using contour/highwall/auger and point removal methods. A copy of the applicant’s Section 404 application, including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.), is available for public review in the Huntington District Regulatory Division Office, by appointment. The proposed Sewell Valley No. 2 Surface Mine project is authorized by the WVDEP under mining permit S-3011-14, pursuant to the Surface Mining Control and Reclamation Act of 1977, and under the National Pollutant Discharge Elimination System permit WV1028685.
ALTERNATIVES ANALYSIS: Approximately 896 linear feet of ten streams, 0.27 acre of two emergent wetlands, and 1.26 acres of six on-bench ponds would be 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 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. The applicant has developed various mining method and configuration alternatives to analyze how the mining operation, as well as the discharge of dredged and/or fill material into waters of the U.S., could be conducted in order to avoid and minimize impacts. Alternative 1 would have involved the disturbance to 1,000 acres and the discharge of dredged and/or fill material into approximately 10,000 linear feet of streams, 3.15 acres of wetlands, and 2.5 acres of ponds. Alternative 2, as summarized above under the “Description of the Proposed Work,” was chosen due to reduced environmental impacts. No Section 404 permit will be issued until this office has determined that practicable upland alternatives are not available to achieve the overall project purpose based on the applicant’s alternatives 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 to waters of the U.S. must be minimized. Approximately 1,182 linear feet of streams, 0.27 acre of wetlands, and 1.26 acres of six ponds 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 aquatic resources in relation to the location of the coal reserves, as well as determining the area necessary to construct the attendant facilities and reclaim the project area, the applicant revised the project area to avoid the discharge of dredged and/or fill material into approximately 9,104 linear feet of streams (91%), 1.89 acres of wetland, and 1.24 acres of ponds (50%). Additionally, the majority of the aquatic resources proposed to be affected by the discharge of dredged and/or fill material would occur in areas that were previously impacted by or created by past mining and other disturbances. 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. Additional minimization efforts are detailed in the project mine plan, the drainage and sediment control plan, the erosion control plan, the aquatic ecosystem protection plan, the reclamation plan, the material handling plan, and the hydrologic reclamation plan.
COMPENSATORY MITIGATION PLAN: The applicant has provided a conceptual compensatory mitigation plan (CMP) to compensate for the proposed permanent, temporary and temporal losses of waters of the U.S. that would occur as a result of the proposed project. Once the conceptual CMP is reviewed and comments received, a final CMP will be submitted. The applicant used the Corps’ West Virginia Stream and Wetland Valuation Metric to determine the impact debits and compensatory mitigation credits. To compensate for the loss of streams, the applicant proposes to perform in-kind, on-site stream establishment, rehabilitation and/or preservation. Approximately 512 linear feet of ephemeral/intermittent streams would be rehabilitated; 330 linear feet of ephemeral streams would be established; and 385 linear feet of ephemeral streams would be preserved. The existing streams are channelized and incised with little riparian cover. The proposed plan includes measures to restore meanders, to reconnect the floodplains, to increase bank stability, to increase habitat, and to restore the riparian cover for shade, stability, and organics. A 50-foot riparian buffer zone (50 feet on each side of the streams) would be established along the established and rehabilitated streams. To compensate for the loss of wetlands, the applicant proposes to establish 0.278 acre of emergent wetland adjacent to the project site and to preserve an existing 0.466 acre emergent wetland off-site. Long-term site protection would be provided for each mitigation site. All waters proposed as compensatory mitigation are summarized in the attached Exhibit E (Sheet 5 of 8), and their locations are shown on the attached Exhibits F-1 through F-3 (Sheets 6-8 of 8).
WATER QUALITY CERTIFICATION: An individual Section 401 WQC is required for the proposed project. It is the applicant’s responsibility to obtain certification from the WVDEP.
HISTORIC AND CULTURAL RESOURCES: The National Register of Historic Places (NRHP) has been consulted and it has determined there are no properties listed on the NRHP that would be indirectly or directly affected by the proposed work. 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 range of the federally-listed endangered Indiana bat (Myotis sodalis) and the threatened northern long-eared bat (Myotis septentrionalis). A mist net survey was conducted for the proposed project in July and August 2013. No Indiana bats were captured during the survey efforts; however, northern long-eared bats were captured. At the time of the survey, the northern long-eared bat was not a federally-protected species. During a winter habitat survey (October 2013), one open portal was found. A bat survey conducted at the portal captured no bats. The survey reports were evaluated by the WVDEP (pursuant to a programmatic 1996 biological opinion and conference report between the U.S. Fish & Wildlife Service (USFWS) and the U.S. Office of Surface Mining). By letter dated December 12, 2013, the WVDEP concluded the proposed project is not likely to adversely affect federally-listed endangered and threatened species, but if additional information on newly listed species becomes available, the determination may be reconsidered. On January 14, 2016, the USFWS published a final rule listing the northern long-eared bat as a federally-protected threatened species. The Corps must obtain further information concerning the proposed project’s potential to affect the northern long-eared bat. No Section 404 permit can be issued until all obligations under Section 7 of the ESA are fulfilled. This Public Notice serves as coordination with the USFWS concerning 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 (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 discharge of dredged and/or fill material into waters of the U.S. 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.
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-2015-204-GAU
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 this public notice, please contact Richard Berkes of the Energy Resource Branch at (304) 399-6909.