LRH-2021-912

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:           Kingston Mining, Inc.                               

                                  622 Packs Branch Road

                                  Pax, West Virginia 25904

LOCATION:  The proposed project would be located approximately 0.9 miles east of the community of Pax, in Fayette County, West Virginia at latitude 37.909614 and longitude -81.250582.  The proposed underground mine would be constructed in Veasey Hollow and unnamed tributaries; Packs Branch and unnamed tributaries; and palustrine emergent (PEM) and scrub-shrub (PSS) wetlands adjacent to Veasey Hollow.  Veasey Hollow and Packs Branch flows into Paint Creek, a tributary of the Kanawha River, a traditional navigable water of the U.S. See attached Sheets 1-3 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 2,364 linear feet (0.27 acre) of perennial and intermittent streams and 4.31 acres of PEM, PSS, and open water wetlands, as indicated on attached Sheet s 1-4 and in Table 1, in conjunction with the construction, operation and reclamation of the Sewell Deep Mine.  In order to provide access to the coal seam, construct the loadout belt crossing, and the operational footprint, approximately 23 cubic yards of durable rock and earthen fill would be permanently discharged into 477 linear feet (0.04 acre) of stream channel and approximately 435 cubic yards of durable rock, earthen fill, and culverts would be temporarily discharged into 1,204 linear feet (0.17 acre) of stream channel. The operational footprint would include constructing a flat surface to install the coal stockpile area, parking area, and other ancillary features.  In addition, approximately 3,546 cubic yards of durable rock and earthen fill would be discharged into 4.31 acres of wetlands to construct the operational footprint area and belt crossing. Approximately 78 cubic yards of durable rock and earthen fill would be permanently discharged into 683 linear feet (0.06 acre) of stream channel for the construction of the air shaft site. Upon completion of the deep mining operations at the site, the temporary fill material and culverts would be removed from the streams, and they would be restored to their pre-construction condition.  The purpose of the project is to remove approximately 4.8 million tons of metallurgical coal reserves using deep mining methods within the Sewell coal seam. The proposed mining operation has an expected life of twelve (12) to fourteen (14) years with post-mine land use of forestland.  The applicant has applied to the West Virginia Department of Environmental Protection (WVDEP) for the required SMCRA permit (U-3004-22). 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:  Approximately 2,364 linear feet of perennial and intermittent streams and 4.31 acres of a palustrine emergent, palustrine scrub-shrub, and palustrine open water wetlands are proposed to be permanently and temporarily filled as a result of the mining activities.  No other 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 Freedom of Information Act.

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 indicated the proposed project cannot be located in an area that would avoid all discharges of dredged and/or fill material into waters of the U.S.  The applicant stated the mine plan and project sequencing 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 material proposed to be discharged into waters of the U.S. consists of steel pipe culverts, concrete box culverts, durable rock, and native soils.  Best management practices, including the use of temporary sediment control structures and contemporaneous reclamation and revegetation of disturbed areas, would be utilized.  The applicant’s material handling plan would assure that all fill material discharged into waters of the U.S. would be managed and monitored pursuant to the required Section 402 National Pollutant Discharge Elimination System permit (NPDES Permit No. WV 1030426) to ensure water quality standards are met.  After mining and reclamation, the site 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.  To compensate for the discharge of dredged and/or fill material into 4.31 acres of wetlands, the applicant proposes to purchase 4.31 wetland mitigation bank credits from a federally approved mitigation bank.  To compensate for the discharge of dredged and/or fill material into 2,364 linear feet of stream channel the applicant proposes to establish approximately 775 linear feet of intermittent stream channel, re-establish approximately 1,343 linear feet of intermittent and perennial stream channel, and restore 1,195 feet of intermittent stream channel on-site, as indicated in Table 2.

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 stream impact debits for the proposed deep mine total 1,420.0.  The applicant’s proposed on-site stream mitigation work is predicted to produce 2,416.1 mitigation credits.  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: 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 submitted the required Section 401 WQC application to the WVDEP and in an email dated April 14, 2023, the WVDEP indicated the Section 401 WQC application is currently under evaluation.   

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 October 3, 2022 to the WVDEP, the West Virginia Department of Arts, Culture and History (WVDCH) indicated that no previously documented architectural properties eligible for or included in the NRHP are located within the proposed project’s direct or indirect Area of Potential Effects (APE).  WVDCH stated one (1) previously recorded archaeological site (46FA357) is located within the permit area but was not recommended for inclusion on the NRHP.  The WVDCH also stated one (1) cemetery, the Pax Cemetery, is located within 1,000 feet of the project area.  However, the cemetery is not within view of the project area due to terrain features between the cemetery and the project area.  The WVDCH concluded no archaeological or architectural historic properties would be affected by the proposed Sewell Deep Mine.  The WVDCH stated no further consultation regarding historic or archaeological resources is required for the proposal.  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 WVDCH 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 gray bat (Myotis grisescens), the endangered Indiana bat (Myotis sodalis), the endangered northern long-eared bat (Myotis septentrionalis), the proposed endangered tricolored bat (Perimyotis subflavus), the endangered fanshell mussel (Cyprogenia stegaria), the endangered northern riffleshell mussel (Epioblasma rangiana), the endangered pink mucket mussel (Lampsilis abrupta), the endangered sheepnose mussel (Plethobasus cyphyus), the endangered snuffbox mussel (Epioblasma triquetra), the endangered spectaclecase mussel (Cumberlandia monodonta), and the endangered tubercled blossom mussel (Epioblasma torulosa torulosa).  In a letter dated August 17, 2022, the WVDEP concluded the proposed project would not result in impacts to federally listed endangered or threatened species.  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 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 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-2021-912-KAN

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.