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LRH 2015-292-GUY

Published Oct. 24, 2016
Expiration date: 11/22/2016

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 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:            Hampden Coal, LLC

3228 Summit Square Place, Suite 180

Lexington, Kentucky 40509

LOCATION:  The proposed project is located at Latitude N 37° 39 33”, Longitude W 81° 57’ 20”, in tributaries of Donaldson Branch, approximately 1.8 miles northwest of Hampden, Mingo County, West Virginia.  See attached Sheets 1-4 of 7 for a depiction of the proposed project location. Donaldson Branch flows into Horsepen Creek, which ultimately flows into Guyandotte River, a traditional navigable water of the U.S.


DESCRIPTION OF THE PROPOSED WORK: The applicant has requested a Department of the Army permit to discharge dredged and/or fill material into 4,310 linear feet (0.31 acre) of waters of the U.S., as indicated on Sheet 4 of 7, associated with expansion of an existing refuse disposal area, referred to as the Donaldson Branch Refuse Disposal Area.   The refuse disposal area is part of an existing larger complex (see attached Sheet 3 of 7) that includes a preparation plant, material handling facilities, multiple deep mines, haul roads, access roads, small buildings, offices, and various sediment control and drainage structures.   Expansion of the refuse disposal area would result in the permanent discharge of dredged and/or fill material into 470 linear feet of perennial stream, 1,557 linear feet of intermittent stream, and 2,283 linear feet of ephemeral stream.

 This refuse area expansion has been approved by the WVDEP under Article 3 permit O-5013-88, Incidental Boundary Revision No. 11 (IBR 11), pursuant to the Surface Mining Control and Reclamation Act of 1977, and National Pollutant Discharge Elimination System (NPDES) permit WV1004760, Modification 25. The purpose of the proposed project is to expand the currently existing refuse disposal area in order to accommodate the future disposal of coarse and fine refuse material generated by the on-site processing of metallurgical-grade bituminous coal. 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.

ALTERNATIVES ANALYSIS: A total of 4,310 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 refuse disposal areas would not accommodate all of the coarse and fine refuse material proposed to be generated at the preparation plant. The applicant evaluated 10 potential overburden disposal sites based on numerous criteria including capacity, stability, distance, cost, property control, and impacts to aquatic resources.  Based on this evaluation, the applicant selected Site D 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 U.S., 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. 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.

The applicant would utilize best management practices (BMPs), based on the guidance from the “Technical Handbook of Standards and Specifications for Mining Operations in West Virginia,” to protect water quality during mining and after the project is completed by following the requirements of the NPDES program. Proposed measures to minimize elevated downstream ionic strength would include: adhering to the underdrain material handling plan and the reclamation plan; using durable, non-toxic rock for the refuse underdrain system; wrapping the underdrain rock with filter fabric; minimizing water contact with the discharged material; and timely re- vegetation and stream restoration.

COMPENSATORY MITIGATION PLAN: 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 losses of waters of the U.S. associated with the proposed project, the applicant proposes to establish 2,479 linear feet of perennial stream, 960 linear feet of intermittent stream and 935 linear feet of ephemeral stream and to re-establish 1,850 linear feet of intermittent stream and 770 linear feet of ephemeral stream within the Donaldson Branch Complex project boundary (see Sheet 5 of 7]). A 50-foot riparian buffer zone (50 feet on each side of the streams) would be established along the established and re- established streams. On-site stream mitigation would occur after project completion, and the removal of the preparation plant, the ancillary facilities and the project drainage control structures. Long-term site protection would be provided for each mitigation site. The applicant’s compensatory mitigation plan 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. 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.  In a letter dated September 22, 2015 (SHPO File Number FR#15-955-MO), the West Virginia State Historic Preservation Office (SHPO) stated there are no architectural properties which are eligible for or listed in the National Register of Historic Places within the direct or indirect Area of Potential Effects.” Furthermore, the SHPO stated that a “search of our records located no previously documented archaeological resources within the proposed project area. Submitted information and aerial photographs indicate that a majority of the proposed project area is situated on steep terrain, where it is unlikely that intact archaeological deposits will be encountered. In our opinion, there are no historic archaeological deposits that will be affected by the proposed project. No further consultation is necessary with respect to archaeological resources.” 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 the 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).  The applicant submitted a “Request for Endangered Species Consultation” to the WVDEP in April of 2015. By letter dated April 21, 2015, the WVDEP stated they “examined the current data for proximal endangered species presence in relation to the proposal area and none have been indicated. However, by virtue of the number of forested acres…, the current West Virginia Range-wide Indiana Bat Protection and Enhancement Plan Guidelines for Surface Coal-Mining Operations” prescribe that the applicant must choose Option 1 (Survey for Bats) or Option 2 (Assume Presence) from the existing Guidelines. The applicant chose Option 2, assuming Indiana bat presence at the project site. A Protection and Enhancement Plan (PEP) applicable to the Indiana bat has been prepared for the project and is under review by the WVDEP. The PEP proposes avoidance, minimization, and short- and long-term habitat replacement measures consistent with the referenced Guidelines.


The WVDEP advised that the proposed project area is not within 150 feet of a known maternity roost or within 0.25 mile of a known northern long-eared bat hibernacula as per the northern long-eared bat Final 4(d) Rule. Furthermore, the PEP provides additional measures to minimize effects to the federally-listed bats.

This Public Notice serves as coordination with the United States Fish and Wildlife Service concerning any 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 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.


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-2015-00292-GUY


Please note that submitted 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 Michelle Staley of the Energy Resource Branch at (304) 399 – 5610.