LRH-2018-00738

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.). This notice serves as the U.S. Army Corps of Engineers’ (Corps) request to the Indiana Department of Environmental Management (IDEM) to act on the Section 401 Water Quality Certification (WQC) for the following application.  



APPLICANT:          
United Minerals Company, LLC
566 Dickeyville Road
Lynnville, Indiana 47619



LOCATION: 
As depicted on Sheet 1 of 15, the proposed project would be located within Pigeon Creek, unnamed tributaries of Pigeon Creek, wetlands and open waters, approximately 2.5 miles southeast of Elberfeld, in Warrick County, Indiana (38.1212, -87.3995).  The proposed impact site is situated in the Clear Branch-Pigeon Creek 12-digit Hydrologic Unit Code (HUC) 051402020203 watershed of the Highland-Pigeon 8-digit HUC 05140202 watershed.  Pigeon Creek is a direct tributary to the Ohio River, a navigable water of the U.S.  



DESCRIPTION OF THE PROPOSED WORK:  
The applicant has requested a DA permit to discharge dredged and/or fill material into 55,339 linear feet of streams (21.2 acres), 420.18 acres of wetlands, and 104.5 acres of open waters, as indicated on Sheets 2-8 of 15 and Table 1, in conjunction with the construction, operation and reclamation of the Seven Hills Mine.  The proposed mine is approved by Surface Mining Control and Reclamation Act (SMCRA) Permit No. S-00357.  The project area encompasses 1,747.0 acres.  Of the 1,747.0-acre project area, a minimum of 409.7 acres would be designated as an avoidance area for surface mining as part of the applicant’s overall mitigation proposal, as discussed further below, resulting in disturbance to approximately 1,337.3 acres. The proposed surface mine operation would use area mining techniques to recover 12 million tons of steam-grade bituminous coal reserves within the SMCRA permit area by mining the reserve with pits that are aligned east to west with mining commencing in the south and progressing northward. The mining plan, inclusive of reclamation, would occur over a period of six (6) to seven (7) years. The post-mine land would include forested wetlands, agriculture, forests, pastures, wildlife habitat, and open water.

Impacts to streams, wetlands and open waters are categorized into five (5) primary types: coal removal activities (coal removal and backfilling), ancillary activities (spoil disposal, soil stockpiles, sedimentation basins, overland conveyor, drainage diversions, haul roads, access roads, and temporary levees), floodway enhancement activities (lowering spoil ridges to increase floodway capacity on the east side of Pigeon Creek), and conditional coal removal and backfilling activities (if certain conditions and requirements have been met as determined by the Corps).

Coal removal and backfilling activities would occur across 267.1 acres and result in the discharge of dredged and/or fill material into 3,383 linear feet (0.23 acre) of ephemeral streams, 16,239 linear feet (2.94 acres) of intermittent streams, 128.46 acres of palustrine forested (PFO) wetlands, 25.20 acres of palustrine scrub-shrub (PSS) wetlands, 0.88 acre of palustrine emergent (PEM) wetlands, and 4.45 acres of open waters consisting of remnant farm ponds and basins constructed from past mining in the area. 

Ancillary activities would occur across 650.2 acres and result in the temporary discharge of dredged and/or fill material into portions of 5,880 linear feet (0.49 acre) of ephemeral streams, 17,141 linear feet (2.56 acres) of intermittent streams, 213 linear feet (0.32 acre) of perennial stream, 80.67 acres of PFO wetlands, 2.00 acres of PSS wetlands, 8.09 acres of PEM wetlands, and 34.69 acres of open waters consisting of final cut impoundments from previous mining and remnant farm ponds. 

One temporary levee would be constructed along the west side of Pigeon Creek to prevent floodwaters from inundating the open pit during mining operations to maintain safe mining conditions.  Floodway enhancement activities would occur across 223.4 acres and result in the discharge of dredged and/or fill material into portions of 802 linear feet (0.05 acre) of ephemeral stream, 402 linear feet (0.02 acre) of intermittent stream, 2.25 acres of PFO wetlands, 2.21 acre of PSS wetlands, 18.43 acres of PEM wetlands, 0.26 acre of palustrine unconsolidated bottom (PUB) wetlands, and 65.40 acres of open waters consisting of final cut impoundments from previous mining.

Conditional coal removal and backfilling would occur across 196.6 acres and result in the discharge of dredged and/or fill material into 674 linear feet (0.07 acre) of ephemeral stream, 10,818 linear feet (2.53 acres) of intermittent stream, 150.76 acres of PFO wetland, and 1.04 acres of PUB wetland.  

Plans of the proposal are attached to this Public Notice (Sheets 1-15).  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. 



ALTERNATIVE ANALYSIS:
Approximately 10,739 linear feet of ephemeral streams, 44,600 linear feet of intermittent streams, 362.14 acres of PFO wetlands, 29.41 acres of PSS wetlands, 27.33 acres of PEM wetlands, 1.30 acres of PUB wetlands, and 104.5 acres of open waters are proposed to be affected by the discharge of dredged and/or fill material as a result of the mining activities.  The applicant has submitted the required alternative analysis for review.  Under the applicant’s original preferred alternative, the proposed project involved the discharge of dredged and/or fill material into 510.2 acres of wetlands, including 462.18 acres of PFO wetlands.  Additionally, the applicant a proposed levee system to be constructed in four (4) different phases as the mining operation progressed north. However, to reduce impacts to jurisdictional wetlands and maintain a riparian corridor along Pigeon Creek, the mining area was reduced and the levee was moved approximately 300 feet west.  The change to the mining plan has resulted in a reduction of 90 acres of wetlands.  No permit will be issued unless the alternatives 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.  Approximately 11,551 linear feet of ephemeral streams, 51,122 linear feet of intermittent streams, 8,089 linear feet of perennial streams, 613.46 acres of PFO wetlands, 83.87 acres of PSS wetlands, 38.82 acres of PEM wetlands, 7.61 acres of PUB wetlands, and 105.91 acres of open waters exist at the site.  The applicant stated the mine plan was 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 avoided the discharge of dredged and/or fill material into Pigeon Creek, a perennial stream, by positioning the concrete footers above the ordinary high water mark to support the piers that will support the elevated beltline. Cranes would hoist the beltline over Pigeon Creek.  Further minimization efforts include replacing all impacted streams and wetlands in their approximate original location. Approximately 711.4 acres or 40.7% of the project area has been previously mined.  Approximately 80% of the on-site wetlands is abandoned previously farmed crop fields.  The applicant’s proposed mine plan would avoid 7% of ephemeral streams, 12.8% of intermittent streams, 100% of perennial streams, 41% of PFO wetlands, 64.9% of PSS wetlands, 29.6% of PEM wetlands, 82.9% of PUB wetlands, and 1.3% of open waters.  This represents an overall avoidance of 43.5% of the on-site wetlands, and 21.8% of the on-site streams.  The material proposed to be discharged into waters of the U.S. would consist of native material.  Best management practices, including the use of temporary sediment control structures and contemporaneous reclamation and revegetation of disturbed areas, would be utilized.  As streams are being mined through, diversion ditches would be constructed to direct water around the pit on a temporary basis to facilitate the mining process.  Surface drainage would flow to sediment control structures.  A minimum buffer width of 400 feet would be maintained between the coal removal area and Pigeon Creek with the buffer widening out to 500 feet in some areas. This buffer area would be protected with a conservation easement.  During active or reclamation mining periods, ongoing compliance surface water quality monitoring would be conducted pursuant to the Section 402 National Pollutant Discharge Elimination System permit to verify any potential degradation or alteration of applicable parameter or constituent concentration levels that may be observed.



COMPENSATORY MITIGATION:
As indicated above, the applicant has avoided and minimized impacts to waters of the U.S.  To compensate for the loss of waters of the U.S., the applicant proposes to:Re-establish/establish 451 acres of forested wetlands on-site;

• Re-establish/establish 5,370 linear feet of ephemeral streams and 44,600 linear feet of intermittent streams on-site;

• Establish 118 acres of riparian buffer on-site;

• Re-establish/establish 149 acres of open water on-site; and

• Restore 567 acres of forested wetlands off-site.

  The mitigation streams would be re-established in the same general locations as they existed prior to mining.  The general topography, geomorphology and the regraded watersheds would generally mimic the pre-mining conditions.  The stream mitigation channels would be constructed using natural channel design techniques to ensure the width to depth ratios, entrenchment ratios, meander lengths and sinuosity ratios are similar to or better than the current conditions.  The original site soils would be placed on the regraded spoil areas and mixed with mine run rock to form the stream bed substrates.  Woody debris and bracing boulders would be incorporated into the stream design to provide stabilization and future shading for natural pool development. Permanent post-mine impoundments would provide flood storage and would reduce stream discharge and help maintain a longer base flow in streams and to wetlands areas.  The applicant proposes to repair degraded unnamed tributaries that outlet into Pigeon Creek within the permit area that are located within the avoidance area by installing appropriate stabilization and habitat-enhancement structures.  Broad riparian buffers utilizing predominately hard-mast species would be planted adjacent to the stream mitigation sites.  Minimum riparian buffer widths would be placed out a distance of 50 feet on each side for ephemeral stream mitigation and 100 feet on each side for intermittent and perennial stream mitigation. Wide floodplains would be incorporated adjacent to the stream mitigation sites to the maximum extent practicable.

  Constructed on-site wetlands would be graded to match the elevation of the current floodplain and would appropriately positioned with sufficient upstream drainage to provide surface runoff to maintain the wetland areas with hydric conditions.  The on-site wetland mitigation would be completed as a mix of forested, scrub-scrub, and emergent wetlands in a manner representative of the impact site.  The applicant proposes to lower the elevations of previously reclaimed areas on the east side of Pigeon Creek within the permit boundary to create additional wetlands that would increase overbank flow from Pigeon Creek and provide additional flood storage and flood water treatment.  At completion of mining, the applicant would remove the existing shallow levee along the west bank of Pigeon Creek in strategic locations to improve the connectivity and overbank flooding of the creek into the existing and mitigated wetlands. The applicant proposes to incorporate copperbelly water snake habitat features into its mitigation plan along Pigeon Creek.  In addition, the applicant proposes to plant exfoliating bark tree species as well as provide watering areas in the mitigation areas for the Indiana bat and the northern long-eared bat. 

  Long-term site protection would be provided for each mitigation site. The applicant’s compensatory mitigation plan includes a 5-10-year monitoring and adaptive management plan to assess the success of the mitigation sites using geomorphic, biological, and habitat assessment tools.  Sheets 9-15 include the proposed on-site mitigation locations and Table 2 provides a comparison between the impacts and the proposed mitigation.  The proposed compensatory mitigation 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:
  An individual Section 401 WQC is required for this project.  The applicant’s WQC application is currently under evaluation by the IDEM.  
  
  
  
  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.  Phase I archaeological surveys were conducted on proposed project area and documented no significant or potentially significant archaeological sites, historic sites, or historic structures.  This survey was reviewed by the Indiana Division of Historic Preservation and Archaeology (DHPA) and no further surveys were required.  No mining would take place within 50 feet extending from each bank of the Wabash and Erie Canal or its corridor.  Based on the provided information, the Corps has determined the proposed project would have no adverse effect on historic properties.  The applicant will conduct and submit Phase I archaeological surveys for all off-site mitigation projects to the Corps and the DHPA for review and comment.  A copy of this Public Notice will be provided to the DHPA. No DA permit will be issued until the Corps has verified that all obligations under Section 106 of the National Historic Preservation Act have been fulfilled. 
  
  
  
  ENDANGERED/THREATENED SPECIES: 
  This project was reviewed by the Indiana Department of Natural Resources (IDNR) Division of Reclamation pursuant to the Formal Section 7 Biological Opinion and Conference Report on Surface Coal Mining and Reclamation Operations Under the Surface Mining Control and Reclamation Act of 1977 (96 BO) between the U.S. Office of Surface Mining and the U.S. Fish and Wildlife Service (USFWS).  The proposed project area is located within the known or historic range of the endangered Indiana bat (Myotis sodalis), the threatened northern long-eared bat (Myotis sepentrionalis), the threatened copperbelly water snake (Nerodia erythrogaster neglecta), and the endangered sheepnose mussel (Plethobasus cyphyus). No caves, portals or mine openings are located within the proposed project area.  A Protection and Enhancement Plan (PEP) was developed to minimize effects to the Indiana bat and the northern long-eared bat and was reviewed by the IDNR and the USFWS. The PEP proposes avoidance, minimization and short- and long-term habitat replacement measures. The applicant would conduct tree clearing during the winter season (October 1 to March 31) to minimize effects to the Indiana bat and the northern long-eared bat.  A buffer of between 120 and 900 feet would remain undisturbed along Pigeon Creek within the project area.  The vast majority of the copperbelly watersnake habitat is located within the conservation easement and areas where mining would not be conducted.  The project would not be expected to adversely affect federally-protected species.  In a letter dated October 28, 2013, the USFWS stated “The proposed project is in compliance with our 1996 national biological opinion issued to the Office of Surface Mining for protection of federally endangered species, pursuant to Section 7 of the Endangered Species Act.” 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:   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

ATTN: CELRH-RD-N Public Notice: LRH-2018-00738-OHR

502 Eighth Street

Huntington, West Virginia 25701-2070 

Please note that 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 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 this Public Notice, please contact Teresa Spagna of the North Branch at (304) 399-5210.