LRL-2021-00826

This notice announces an application submitted for a Department of the Army (DA) Permit, subject to Section 404 of the Clean Water Act:

APPLICANT:                         B & W Resources, Inc.

                                                300 Liperote Way

                                                London, KY 40741    

AGENT:                                  Aquatic Resources Management

                                                2554 Palumbo Drive

                                                Lexington, KY 40509

LOCATION:                           The proposed project would be located just north of Stopover, Kentucky in Pike County along State Highway 194. The project would be limited to unnamed tributaries of Big Branch.

                                                Latitude: 37.05360

                                                Longitude: -82.08470

                                                7.5 Minute Quad: 1:24K Majestic, KY         

PURPOSE:                              The purpose of this proposed project is to allow B&W Resources, Inc. to conduct area and contour mining to efficiently extract coal reserves situated along the Lower Elkhorn and Lower Alma and all seams above 1490’ in elevation as well as contour mine the Lower Elkhorn within the permitted boundary of KDNR #898-1036

DESCRIPTION OF WORK:  This proposed project is scheduled to begin upon issuance of all necessary permits and is anticipated to be in operation for approximately 11 ½ years based on 40,000 tons per month for a total of 5,500,000 tons. The project would encompass 1,163 acres of predominantly forestland. The unnamed tributaries located within the proposed permit areas  flow into Big Branch of the Tug Fork of the Big Sandy River. The permit boundary is primarily contained on private property with minimal public access. The project would impact 8,878 linear feet of stream within the Big Branch watershed. Three permanent spoil disposal sites and three sediment control structures are proposed as part of this mining project. Impacts to mainstream Big Branch include 1,928 linear feet of perennial stream reach and 1,139 of intermittent stream reach as a result of spoil disposal site and sediment control structure construction. Unnamed tributaries within the Big Branch watershed account for the remaining 5,811 linear feet of combined impacts within intermittent and ephemeral stream segments. These impacts would result from two additional spoil disposal sites and sediment control structures.

AVOIDANCE MINIMIZATION, AND MITIGATION MEASURES: 

The applicant has incorporated avoidance, minimization, and mitigation measures into the proposed mining project. Initially, the applicant conducted an alternative analysis to determine the least environmentally damaging practicable alternative. The applicant would also conduct water quality monitoring through the Kentucky Pollution Discharge Elimination System (KPDES) program that would provide avoidance and minimization of adverse effects and would provide remedial actions should any exceedance occur. The spoil disposal sites have been minimized and optimum placement has been determined to minimize impacts to higher quality waters while maintaining the feasibility of the project. The applicant explored the concept of one large spoil disposal site to contain all excess overburden, however the only location large enough to facilitate such a site would impact significantly more high-quality perennial stream. The applicant also explored the concept of constructing nine smaller spoil disposal sites that would be placed in different watersheds, however these smaller spoil disposal sites would impact a larger amount of stream length and would require placement within watersheds with known big sandy crayfish occurrences. Lastly, the applicant has proposed a detailed compensatory mitigation plan to offset unavoidable impacts associated with the three spoil disposal sites and their appurtenant sediment control structures. The plan includes the preservation of high-quality streams within the Big Sandy watershed within one contiguous watershed to be protected in perpetuity via deed restriction.

It is noted that this proposed mitigation plan is open to comment and subject to change.  The Corps will make a determination of appropriate mitigation, upon review of all submitted information.

This proposal contains no areas designated as a component of a State and/or Federal Wild and Scenic River System and would not have a direct and adverse effect on these systems.

REVIEW PROCEDURES:  A DA Permit cannot be issued if any legally required Federal, State, or local authorization or certification is denied.  A DA permit, if otherwise warranted, will not be issued until a State of Kentucky Water Quality Certification or waiver is on file at this office.  In order to comply with Section 401 of the Clean Water Act, the applicant must apply for State certification from the Kentucky Energy and Environment Cabinet Division of Water (KDOW).[LPJCUC(2] 

Copies of this notice are sent to the appropriate Federal and State Fish and Wildlife Agencies.  Their views and comments are solicited in accordance with the Fish and Wildlife Coordination Act of 1956.  The Endangered Species Act (ESA, 87 Stat. 884, as amended; 16 U.S.C. 1531 et seq.) requires federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) pursuant to Section 7(a) 2 of the ESA on all actions that may affect a species listed (or proposed for listing) under the ESA as threatened or endangered, or any designated critical habitat.  A copy of this notice is being furnished to the USFWS for their review.  Per this notification, we request comments from the USFWS concerning potential impact to threatened and/or endangered species that may occur within the project area.  After receipt of comments, the USACE will evaluate the potential impacts to proposed and/or listed species and their designated critical habitat and initiate consultation with USFWS, if required.

Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider this application.  A request for a public hearing must state the specific interest which might be damaged by issuance of the DA Permit.

The National Register of Historic Places has been examined, and it has been determined that there are no properties currently listed on the Register which have been directly affected by the work.  If we are made aware, as a result of comments received in response to this notice, or by other means, of specific archaeological, scientific, pre­historical, or historical sites or structures which might be affected by the proposed work, the District Engineer will immediately take the appropriate action necessary pursuant to the National Historic Preserva­tion Act of 1966 - Public Law 89-665 as amended (including Public Law 96-515).

The decision whether to issue a permit will be based on an evaluation of the probable impact 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 which reasonably may be expected to accrue from the proposal must be balanced against its reasonably fore­seeable detriments.  All factors which may be relevant to the proposal will be considered; among those are conservation, economics, aesthetic values, general environmental concerns, historic values, fish and wildlife values, flood damage prevention, land use, navigation, recreation, water supply, water quality, energy needs, safety, food production, and in general, the needs and welfare of the public.   In[pjl3]  addition, the evaluation of the impact of the activity on the public interest will include application of the guidelines (40 CFR Part 230) promulgated by the Administrator, United States Environmental Protection Agency, under authority of Section 404(b) of the CWA.

The Corps of Engineers 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.  It is presumed that all interested parties and agencies will wish to respond; therefore, a lack of response will be interpreted as meaning that there is no objection to the proposed project.  Any comments received will be considered by the Corps of Engineers 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 received in this office on or before the closing date will become a part of the official record and will be considered in the determination on this permit request.  Any objections which are received during this period will be forwarded to the applicant for possible resolution before the determination is made whether to issue or deny the requested DA Permit.  A permit will be granted unless its issuance is found to be contrary to the public interest.

Information pertaining to this application is available for public examination during normal business hours upon prior request.  Drawings are available on Louisville District's Internet site at http://www.lrl.usace.army.mil/Missions/Regulatory/Public-Notices/.  All comments regarding this proposal should be addressed to Justin Branham, CELRL-RDS at the address noted above and should refer to the Public Notice Number LRL-2021-00826-jlb. 

If you desire to submit your comments by email, you must comply with the following:

    a) In the subject line of your email, type in ONLY the Public Notice ID No. LRL-2021-00826-jlb.

                                      Example:

                                                            Subject:  LRL-2021-00826-jlb

    b) Provide your physical mailing address and telephone number.

    c) Send your email to: lrl.regulatorypubliccomment@usace.army.mil

    d) If you are sending attachments greater than 10 Mb in size with your email, you must send a hard copy (CD or paper) to the Corps’ physical address as well.