LRH 2015-1094

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:  As depicted on the attached Exhibit 1 and Exhibit 2 (attached Sheets 1 and 2), the proposed project site encompasses 302.3 acres and is located within unnamed tributaries of Browning Run and adjacent wetlands, approximately 5.5 miles northeast of Newcomerstown, both north and south of Township Road 124 (Gibson Road and Enos Road) at latitude 40.29805, longitude -81.49280, in Clay, Salem and Washington Townships, Tuscarawas County, Ohio.

PROJECT HISTORY:  On December 30, 2015, the Corps originally advertised the proposed project via a public notice.  On December 4, 2018, the applicant requested the DA permit application be withdrawn.  No changes have been made to the proposed project as originally advertised. 

DESCRIPTION OF THE PROPOSED WORK:  The applicant proposes to discharge approximately 13,150 cubic yards of dredged and/or fill material into 1,274 linear feet of ephemeral streams, 5,387 linear feet of intermittent streams, and 7.96 acres of emergent wetlands (see attached Table 1) associated with the construction, operation, and reclamation of the 302.3 acre Hunt Adjacent 4 Mining Area (D-2226-4).  The discharge of dredged and/or fill material would be required to accomplish the coal extraction (surface and auger methods) of the Middle Kittanning No. 6 coal seam, the construction of a sediment pond and diversion ditches, the disposal of the excess overburden material, and the reclamation of the site.  The proposed mining operation has an expected life of five years.  Plans for the proposed project are attached to this notice (Sheets 1-3). The applicant's stated overall project purpose is to develop and mine coal reserves in the Middle Kittanning No. 6 coal seam within the identified project area.

The applicant's Section 404 permit application, including the compensatory mitigation plan and alternative analysis, is available for public review in the Corps' Regulatory office, by appointment, or a copy may be obtained by submitting a Freedom of Information Request.  The Hunt Adjacent 4 Mining Area has been reviewed by the Ohio Department of Natural Resources (ODNR), Division of Mineral Resources Management (DMRM) pursuant to the Surface Mining Control and Reclamation Act of 1977 and has received the required permit.

ALTERNATIVE ANALYSIS:  As a result of the proposal, dredged and/or fill material would be discharged into waters of the United States 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.  A total 24,122 linear feet of stream and 11.88 acres of wetlands are located within the proposed project area and are subject to regulation under Section 404.  A total of 17,461 linear feet of streams (72%) and 3.92 acres of wetlands (33%), subject to regulation under Section 404, would be avoided on-site.  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 use sediment control structures to prevent the contribution of solids to streams located downstream of the project.  During construction, the temporary sediment control structures may include temporary silt basins, ditches, straw/hay bale fencing, and cloth filter fences.  Measures proposed to be taken to control drainage around, over and through the mining operation would include the construction of sediment ditches, diversion ditches, culverts, flumes, and drains.  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 has submitted a CMP to compensate for the unavoidable discharges of dredged and/or fill material into waters of the U.S.  To compensate for the discharge of dredged and/or fill material into 7.96 acres of emergent wetlands, the applicant proposes to perform permittee-responsible on-site and off-site, in-kind mitigation at a 1.5 to 1 ratio by establishing 11.94 acres of emergent wetlands.  Approximately 2.9 acres of emergent wetlands would be re-established on the project site and 9.04 acres of emergent wetlands would be established on the adjacent Hunt Mining Area (D-2226) located one (1) mile southeast of the project area at latitude 40.8812° North, longitude 81.47686° West.  To compensate for the discharge of dredged and/or fill material into 1,274 linear feet of ephemeral streams, and 5,387 linear feet of intermittent streams, the applicant proposes to perform permittee-responsible in-kind mitigation at a 1 to 1 ratio by establishing 6,661 linear feet of stream channels within the project site.  Mitigation activities would commence during the first suitable planting season after the area is reclaimed and revegetated. The projected timeframe for mitigation completion is approximately one (1)  year after reclamation.

The applicant proposes to establish a 100 foot buffer zone along the streams reconstructed within the proposed project area (50 feet on each side of the stream).  Additionally, the applicant proposes to establish a 50 foot buffer around the perimeter of the constructed on- and off-site wetlands.  The buffer zones would be planted with a mixture of native trees and shrubs and would be monitored for a period of five (5) years for survivability.

The applicant has proposed a promissory note to the Corps to offset any linear feet or acreage deficits at the end of the monitoring period through the purchase of federally-approved in-lieu fee or mitigation bank credits.  The primary financial assurance mechanism for the success of the 6,661 linear feet of on-site stream mitigation and 11.94 acres of wetland mitigation would be a performance bond connected directly to the mining permit through the ODNR-DMRM.  As a component of the surface mining permit, the DMRM would require the applicant to provide a performance bond for the permit.  The release of the bonds would depend on the successful restoration of the required 6,631 linear feet of streams and 11.94 acres of wetlands onsite.

WATER QUALITY CERTIFICATION:  The applicant must obtain a Section 401 WQC from the Ohio Environmental Protection Agency (Ohio EPA) assuring that applicable laws and regulations pertaining to water quality are not violated.  A DA permit, if otherwise warranted, would not be issued on this project until the Section 401 WQC has been issued or waived and the Section 401(a)(2) process has been completed with the U.S. Environmental Protection Agency (USEPA).  

HISTORIC AND CULTURAL RESOURCES:  The applicant completed a preliminary historic properties identification which included a records review and a visual inspection of 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.  No historic properties listed on the NRHP were identified within the proposed project area.  

A Phase I Cultural Resource Management Survey of a Proposed Oxford Mining Company, LLC 140.4ha (347a.) Hunt Application in Clay, Salem, and Washington Townships, Tuscarawas County, Ohio (Phase I Survey) was completed by Professional Archaeological Services Team (PAST) on the 302.3 acre project site.  Additionally, a Phase II Archaeological Assessment of Sites 33TU752, 33TU753 and 33TU754 in the Oxford Mining Company, LLC 140.4ha (347a.) Hunt Application in Clay, Salem, and Washington Townships, Tuscarawas County, Ohio (Phase II Survey) was completed by PAST for sites identified during the Phase I Survey. 

Based on the finding of the Phase II Survey, the Corps determined that sites 33TU752, 33TU753 and 33TU754 do not meet the NRHP criteria and are not eligible for inclusion on the NRHP.  The Corps determination of the proposed project’s effects on historic properties was submitted to the Ohio State Historic Preservation Office (SHPO) for concurrence on February 11, 2016.  Pursuant to 36 CFR 800.4((d)(1)(i), the Ohio Historic Preservation Office (OHPO) was provided 30 days to concur or disagree with our determination. In a letter dated March 16, 2016, the OHPO stated the archaeological sites were not eligible for inclusion to the NRHP and no historic properties would be affected by the undertaking.  A copy of this Public Notice will be furnished to the Ohio SHPO for their review. 

ENDANGERED/THREATENED SPECIES:  The project is located within the known or historic range of the following federally-protected species:  the endangered Indiana bat (Myotis sodalis) and the threatened northern long-eared bat (Myotis septentrionalis) and the proposed endangered tricolored bat (Perimyotis subflavus).  Approximately 251 acres of potentially suitable forested summer habitat for the Indiana bat, the northern long-eared bat and the tricolored bat are located within the project area.  In order to facilitate the completion of the proposed project, approximately 104.4 acres of forested habitat would be cleared.  The applicant has prepared a Protection and Enhancement Plan to minimize potential effects to these aforementioned bat species.  The applicant has agreed to conduct tree clearing operations between to September 30 and March 31.  We have determined the proposed project may affect, but is not likely to adversely affect the Indiana bat, the northern long-eared bat, or the tricolored bat.  Based on this information, the proposed project is not likely to adversely affect the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of habitat of such species which has been determined to be critical.  This Public Notice serves as a request for concurrence from the United States Fish and Wildlife Service 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 USEPA 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 the protection and the 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; among those factors 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 Rachel McCarty by email at Rachel.a.klug@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-RDE, Public Notice - LRH-2015-1094-TUS

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 Rachel McCarty of the Energy Resource Branch at (304) 399-5858.