LRH-2019-943

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: Zachary Queen

                        Ramaco Resources, LLC

                        250 West Main Street, Suite 1800

                        Lexington, Kentucky 40507

LOCATION:  The proposed project would be located north of the community of Emmett, in Logan County, West Virginia at latitude 37°41’51” and longitude -81°49’03”.  The construction of the proposed coal refuse disposal facilities would occur within Christian Branch and Bear Branch and their unnamed tributaries.  The streams are tributaries of Elk Creek of the Guyandotte River, a traditional navigable water of the U.S.  See attached Sheets 1, 2, and 3 for a depiction of the proposed project location.

DESCRIPTION OF THE PROPOSED WORK:  The applicant has requested a DA permit to discharge dredged and/or fill material into a total of 7,367 linear feet (lf) (0.86 acre) of intermittent and ephemeral stream channels as indicated on attached Sheets 4 and 5 and Table 1 and as described below, in conjunction with the construction, operation and reclamation of the Elk Creek Refuse Facility.  The Elk Creek Refuse Facility is a part of a larger complex operated by the applicant which includes a coal preparation plant, an existing refuse disposal area, underground and surface coal mines, haulage and access roads, a railroad loadout facility, and other supporting infrastructure.  These facilities support the removal, processing, and transport of the applicant’s metallurgical coal reserves in the Elk Creek Reserve basin.  The coal removed from the reserves requires cleaning and processing through the preparation plant prior to transport to market.  The cleaning and processing of the coal results in non-marketable coarse and fine refuse and other rejected material which requires disposal.  The current refuse disposal area, Oldhouse Branch Refuse Area, which was constructed prior to the implementation of the Surface Mining Control and Reclamation Act (SMCRA) of 1977, is rapidly reaching its disposal capacity; therefore, a new refuse disposal area is necessary for the continued recovery, processing, and shipment of metallurgical coal reserves from the applicant’s Elk Creek reserve base. 

The proposal would include the sequential construction of two (2) separate refuse disposal areas (RDA) and associated sediment ponds at the site.  The construction of the Christian Branch RDA would occur first and would include the permanent discharge of approximately 67.5 cubic yards of durable rock fill into 1,596 linear feet (0.23 acre) of intermittent stream channel and 560 linear feet (0.03 acre) of ephemeral stream channel to construct the rock underdrain structure.  Sediment Pond No. 1, which would be located below the Christian Branch RDA, would include the temporary discharge of approximately 24.1 cubic yards of earthen material into 437 linear feet (0.06 acre) of intermittent stream channel to construct the embankment for the sediment pond.  Construction of the Bear Branch RDA, which is estimated to occur approximately eight (8) to nine (9) years after the construction of the Christian Branch RDA, would include the permanent discharge of approximately 270 cubic yards of durable rock fill into 3,901 linear feet (0.59 acre) of intermittent stream channel and 240 linear feet (0.01 acre) of ephemeral stream channel to construct the rock underdrain structure.  Sediment Pond No. 2, which would be located below the Bear Branch RDA, would include the temporary discharge of approximately 52.1 cubic yards of earthen material into 633 linear feet (0.10 acre) of intermittent stream channel to construct the embankment for the sediment pond.  A total of 7,367 linear feet (0.86 acre) of intermittent and ephemeral stream channels would be affected by the proposal as indicated in Table 1.  The proposed RDAs would accommodate an estimated 135.5 million tons of combined (coarse and fine) refuse material and would have a combined life of approximately 32.5 years as indicated in Tables 2 and 3.

The purpose of the project is to provide adequate refuse material disposal for metallurgical coal reserves removed, cleaned, and prepared for market at the applicant’s existing Elk Creek Refuse Facility.  The coal mines associated with this facility produce high quality metallurgical grade coal which must be processed to remove impurities which produce coarse and fine un-marketable refuse material which must be disposed.  The current refuse disposal area is rapidly meeting its designed disposal capacity therefore new reduce disposal area(s) are required to allow for continued mining of coal within the Elk Creek Complex.  The post-mine land use is forestland.  The applicant received the required West Virginia Department of Environmental Protection (WVDEP) SMCRA Article 3 permit (O-5006-20) for the refuse disposal facility on October 5, 2020.  Plans of the proposal are attached to this notice (Sheets 4-5).  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 (FOIA). 

ALTERNATIVE ANALYSIS:  Approximately 6,297 linear feet (0.70 acre) of intermittent and ephemeral stream channels would be permanently filled and approximately 1,070 linear feet (0.16 acre) of intermittent stream channels would be temporarily filled as a result of the construction of the refuse disposal fills and associated sediment ponds. No special aquatic sites would be affected by the discharge of dredged and/or fill material.  No permit will be issued unless the alternatives analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.  The applicant has submitted the required alternative analysis for review. A complete copy of the applicant’s submittal can be reviewed, by appointment, at the above address or a copy may be requested under the FOIA.

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.  The applicant indicated the proposed project cannot be in an area that would avoid all discharges of dredged and/or fill material into waters of the U.S.  The applicant stated the refuse disposal plan and developmental sequence were designed to avoid and minimize the discharge of dredged and/or fill material into waters of the U.S. to the maximum extent practicable, while meeting the stated project purpose.  The applicant has submitted a comprehensive list of minimization measures, construction techniques, and best management practices to protect waters of the U.S., water quality measures, and prevent significant degradation of the aquatic ecosystem.  At all times, best management practices and guidance from the “Technical Handbook of Standards and Specifications for Mining Operations in West Virginia” would be employed during all phases of the proposed mining and reclamation activities.  After completion of the refuse disposal activities, the area would be returned to a post-mining land use of forestland.

COMPENSATORY MITIGATION PLAN (CMP): The applicant has submitted a CMP to compensate for the unavoidable discharge of fill material into waters of the U.S.  The applicant proposes to purchase stream mitigation bank credits from a federally approved mitigation bank for permanent impacts associated with the proposal and re-establish intermittent stream channels at the location of the sediment ponds for temporary impacts associated with the proposal.

To calculate an appropriate amount of mitigation to compensate for the loss of waters of the U.S. associated with the proposed project, the applicant used the Corps’ West Virginia Stream and Wetland Valuation Metric (SWVM, Version 2.1).  The SWVM compares baseline data with anticipated or actual post-mitigation data to calculate impact debits and mitigation credits.  The impact debits for the proposal, including temporal loss, total 7,008.8 debits.  To compensate for the permanent loss of waters of the U.S. as a result of the construction of the refuse disposal areas, the applicant proposes to purchase a total of 5,857.8 stream credits from a federally approved mitigation bank within the primary or secondary watershed (Upper Guyandotte River watershed – HUC 05070101).  The stream credits required for the Christian Branch RDA are proposed to be purchased over the first eight (8) years of the 10-year life of the RDA (See Table 2).  The credits required for the Bear Branch RDA are proposed to be purchased over the first ten (10) years of the 22.5-year refuse disposal life of the RDA (See Table 3).  All credits would be acquired via credit transfers made in equal quarterly installments.  To compensate for the temporary loss of waters of the U.S. as a result of the sediment pond construction, the applicant proposes to re-establish 437 linear feet of an intermittent segment of Christian Branch at the location of Sediment Pond No. 1 (Christian Branch RDA) and 633 linear feet of an intermittent segment of Bear Branch at the location of Sediment Pond No. 2 (Bear Branch RDA).  Natural stream channel design techniques would be used to re-establish the stream channels and a 200-foot riparian buffer, 100-feet from the top of each bank, would be established along each stream channel.  The re-established stream channels would be monitored for a period of ten (10) years.  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 determine the appropriate mitigation in the event a decision is made to issue a permit. 

WATER QUALITY CERTIFICATION:  The applicant must obtain a Section 401 Water Quality Certification (WQC) from the WVDEP 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.  The applicant has indicated they are in the process of submitting the required Section 401 WQC application to 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.  As a part of the SMCRA permitting process, the project was coordinated with the West Virginial Division of Culture and History (WVDCH).  In a letter dated November 9, 2020, the WVDCH indicated there are no archeological or architectural resources listed or included on the Register within the area of potential effect (APE) and that no further consultation is necessary regarding cemetery resources.  This Public Notice serves as coordination with the WVDCH, pursuant to Section 106 of the National Historic Preservation Act of 1966.  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 gray bat (Myotis gresescens), the endangered Indiana bat (Myotis sodalis), the endangered northern long-eared bat (Myotis septentrionalis), the endangered Guyandotte River Crayfish (Cambarus veteranus) and the tri-colored bat (Perimytosis subflavis), a candidate species.  The applicant prepared a Protection and Enhancement Plan (PEP) for the federally listed Indiana bat and northern long eared bat.  The applicant followed the “Range-wide Indiana bat Protection and Enhancement Plan Guidelines for Surface Coal Mining Operations” (Guidelines). The applicant submitted the PEP to the WVDEP for their review and comment.  In a letter dated December 1, 2021, the WVDEP stated that the PEP includes non-discretionary Reasonable and Prudent Measures to avoid and minimize impacts in the Indiana bat and the northern long-eared bat.  The WVDEP stated winter clearing in the SMCRA permit area must only be conducted between November 15 to March 31.  Since the applicant has chosen to adhere to the timber clearing restrictions, the WVDEP determined the PEP fulfills all requirements, including the Guidelines and the 4(d) Rule, necessary to protect threatened and endangered species.  In reference to the Guyandotte River Crayfish (GCR), WVDEP indicated that since the proposed refuse disposal facility is located within the Elk Creek watershed, which contains critical habitat for the species, the applicant must conduct a survey within Elk Creek in the vicinity of the refuse disposal facility.  In November 2019, the applicant conducted the GRC survey at ten (10) sites and no federally listed crayfish species were found.  Further, an additional survey conducted at five (5) sites within Elk Creek in March 2022 found no federally listed crayfish species.  In a letter dated January 10, 2020, the USFWS stated that “based on the results of the November 2019 survey, no Guyandotte River crayfish are expected to be affected by the project and no biological assessment or further Section 7 consultation under the ESA is required with the Service”.  This Public Notice serves as coordination with the U.S. 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).  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 320‑332, the Regulatory Program of the Corps, and other pertinent laws, regulations, and executive orders.  Our evaluation will also follow 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 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 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 Kimberly Courts-Brown by email at Kimberly.d.courtsbrown@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-2019-943-GUY-Christian Branch

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 Kimberly Courts-Brown of the Energy Resource Branch at (304) 399-6906.