LRH-2013-385

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army (DA) permit under the provisions of Section 404 of the Clean Water Act for the proposed discharge dredged and/or fill material into waters of the United States (U.S.).

APPLICANT:           CCU Coal & Construction, LLC              

                                  544 Chestnut Street

                                  Coshocton, Ohio 43812

LOCATION:  The proposed 889.2-acre Schooley Hollow surface mine would be constructed in unnamed tributaries of Salt Fork and an adjacent palustrine emergent wetland located approximately 3.0 miles northwest of the community of Barnesville, Guernsey and Belmont Counties, Ohio at latitude 40.015343 and longitude -81.224538.  Salt Fork is an indirect tributary of the Muskingum River, a navigable water of the U.S.  See attached Sheets 1 and 2 for a depiction of the proposed project location.

PROJECT HISTORY:  On August 18, 2014, the U.S. Army Corps of Engineers (Corps) advertised the proposed project via a public notice.  On December 11, 2017, the DA permit application was withdrawn by the applicant.  On October 16, 2018, the applicant resubmitted a DA permit application for the proposed project but withdrew the submittal on January 28, 2020, to pursue authorization under a Nationwide Permit (NWP) 21, Surface Coal Mining Activities.  On June 8, 2021, the Corps verified a NWP 21 under the January 13, 2021, Federal Register, Notice of Reissuance and Modification of NWPs (86 FR 2744).  The NWP 21 verification authorized the discharge of dredged and/or fill material into 1,321 linear feet (0.06 acre) of seven (7) streams, 0.04 acre of one (1) wetland, and 0.1 acre of two (2) open water features. To date, there has been a discharge of dredged and/or fill material into a total of 219 linear feet of two (2) streams in association with the NWP 21 verification issued on June 8, 2021.

DESCRIPTION OF THE PROPOSED WORK:  The applicant has requested a DA permit to discharge dredged and/or fill material into 139 linear feet (0.003 acre) of one (1) ephemeral stream, 9,221 linear feet (0.403 acre) of 23 intermittent streams, 2,462 linear feet (0.182 acre) of five (5) perennial streams, 1.03 acres of two (2) emergent wetlands, and 0.62 acre of three (3) open water features, as indicated in Table 1 and Table 2, in conjunction with the construction, operation and reclamation of the Schooley Hollow Mining Area.  Diversion ditches would be constructed sequentially to direct flow from the headwaters, around the mine-through areas to the unaffected downstream portions of Stream 3, Stream 4, and Stream 35 to avoid secondary stream impacts.  Upon completion of the mining activities near Stream 3, Stream 4, and Stream 35, the streams would be re-established in their original locations.  

Approximately 2.2 million tons of bituminous metallurgical coal reserves would be extracted using contour and auger mining methods within the Meigs Creek No. 9 and Pittsburgh No. 8 coal seams.  The proposed mining operation has an expected life of five (5) years with post-mine land uses to include grazing area and fish and wildlife habitat.  Plans of the proposal are attached to this Public Notice (Sheets 1-6).  More detailed mapping is available upon request.

The applicant has applied to the Ohio Department of Natural Resources (ODNR), Division of Mineral Resources Management (DMRM) for the required Surface Mining Control and Reclamation Act (SMCRA) permit (D-2489).  A copy of the application, including all supplemental materials (alternative analysis, compensatory mitigation plan, environmental information documents, etc.), is available for review in the Huntington District Office, by appointment, or via the Freedom of Information Act. 

ALTERNATIVE ANALYSIS:  As a result of the proposal, dredged and/or fill material would be discharged into waters of the U.S. as described above.  The project does not require access or proximity to or siting within special aquatic sites 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, practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise.  The applicant is required to provide an alternative analysis that must overcome that presumption prior to receiving authorization for the discharge of dredged and/or fill material.  No permit will be issued until our review of 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 first be given to avoiding impacts on-site.  If waters of the U.S. cannot be avoided, then the impacts must be minimized.  The applicant would utilize best management practices to protect water quality during mining and after the project is completed following the requirements of the National Pollutant Discharge Elimination System program. The applicant proposes to minimize the effects of suspended particles that enter the streams and wetlands during mining by the construction of 12 sediment ponds and diversion ditches, and the installation of silt fences.  As indicated above, the construction of diversion ditches would allow for the avoidance of impacts to an additional 782 linear feet of Stream 3, 450 linear feet of Stream 4, and 205 linear feet of Stream 35, by directing flow from the headwaters, around the mine-through areas, and reentering the unaffected downstream portions during mining operations. Timely construction and maintenance of sediment control structures combined with concurrent reclamation and revegetation of disturbed areas would also minimize any downstream sediment impacts.

COMPENSATORY MITIGATION PLAN (CMP):  The applicant proposes to purchase mitigation bank credits at a ratio of 1:1 from a federally approved mitigation bank to compensate for the discharge of dredged and/or fill material into 10,501 linear feet of stream and 1.5:1 for the discharge of dredged and/or fill material into 0.99 acre of wetland. The stream credits would be purchased in 2,000 credit increments or as needed prior to impacts to waters of the U.S.  Additionally, the applicant proposes to re-establish 1,171 linear feet of stream channel to compensate for the discharge of dredged and/or fill material into 1,171 linear feet of stream channel, as previously approved under the NWP 21 verification issued on June 8, 2021, as indicated in Table 3.

The applicant’s CMP is currently under review and is available for public review.  The proposed CMP is open to comment and is subject to change based on comments received.  After review of all the submitted information the Corps will make a determination of appropriate mitigation, in the event a decision is made to issue a permit. 

WATER QUALITY CERTIFICATION (WQC): The applicant must obtain a Section 401 WQC from the Ohio Environmental Protection Agency assuring that applicable laws and regulations pertaining to water quality are not violated.  A DA permit, if otherwise warranted, would not be issued for this project until the Section 401 WQC has been issued or waived and the 401(a)(2) process as described in the “Clean Water Act Section 401 Certification Rule” (Rule, 85 Federal Register 42,210 [July 13, 2020]) has been completed. 

HISTORIC AND CULTURAL RESOURCES:  Professional Archaeological Services Team (PAST), on behalf of the applicant, completed a records review in June 2014 for the project area.  The records review included the National Register of Historic Places (NRHP) files, the Mills Atlas, the Ohio Archaeological Inventory (OAI), the Ohio Historic Inventory (OHI), Cultural Resource Management (CRM) survey files, and historic atlases and maps, cemeteries, and county histories. 

A Phase I Cultural Resource Management Survey of an Oxford Mining Company, LLC 418.8 hectare (1,034.9 acre) Schooley Hollow Application in Warren Township, Belmont County, and Oxford Township, Guernsey County, Ohio (Phase I Survey) was completed by PAST in August 2014.  Additionally, an addendum to the Phase 1 Survey was completed by PAST in November 2014 to examine three (3) test areas that could not be accessed during the original Phase I Survey. The Phase I survey identified a single property listed on the NRHP within the vicinity of the proposed project, the 33BL15 Tower Site.

Based on the finding of the Phase I Survey and proposed avoidance measures, the Corps determined no historic properties that would be affected by the proposed the proposed project.  In a letter dated April 8, 2019 (2015-BEL-32544-6), the Ohio State Historic Preservation Office (SHPO) stated the proposed undertaking will not affect properties listed in or eligible for listing on the NRHP.  Based on this information, in accordance with 36 CFR § 800.4(d)(1), the Corps has determined that no historic properties listed or eligible for inclusion on the NRHP would be affected by the proposed undertaking.  This Public Notice serves as a request for concurrence from the Ohio SHPO pursuant to Section 106 of the National Historic Preservation Act.  No DA permit will be issued until all obligations under Section 106 of the National Historic Preservation Act of 1966 have been fulfilled. 

ENDANGERED/THREATENED SPECIES:  The proposal lies within the range of the endangered Indiana bat (Myotis sodalis), the endangered northern long-eared bat (Myotis septentrionalis), and the proposed endangered tricolored bat (Perimyotis subflavus). The applicant conducted a mist net bat survey in the project area between July 1 and 26, 2019.  The survey stated no Indiana bats or northern long-eared bats were captured and one (1) tricolored bat was captured during the survey.  The U.S. Fish and Wildlife Service provided concurrence with the Corps’ effects determinations for threatened and endangered species on October 31, 2019 (TAILS# 03E15000-2020-I-0155), associated with the DA permit application the Corps received on October 16, 2018. This Public Notice serves as coordination with the USFWS 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).  No DA permit will be issued until the Corps has verified that all obligations under Section 7 of the Endangered Species Act have been fulfilled. 

PUBLIC INTEREST REVIEW AND CUMULATIVE EFFECTS:  This application will be reviewed in accordance with 33 CFR Parts 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 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 benefits 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:   Comments and should be submitted electronically to Emma Kist by email at Emma.K.Kist@usace.army.mil.  If you do not have internet access, comments may be submitted through the U.S. Postal Service (USPS) to the following address:

U. S. Army Corps of Engineers

ATTN: CELRH-RD-E Public Notice: LRH-2013-385-MUS

502 Eighth Street

Huntington, West Virginia 25701-2070

Copies should only be provided through the USPS when electronic submission is not possible.  Precautionary internal mail handling procedures may be instituted to protect our workforce, which may result in longer than normal times to process and receive hard copy submissions.  To be considered in our evaluation, comments submitted through the USPS should have a postmark date on, or prior to, the close of the comment period listed on page one (1) of this Public Notice. 

Please note, the names and addresses of those who submit comments in response to this Public Notice become part of our administrative record and, as such, may be available to the pubic under provisions of the Freedom of Information Act.  If you have any questions concerning this Public Notice, please contact Emma Kist of the Energy Resource Branch at (304) 399-6900.