Public Notice No. 19-35
Nashville District
Application No. LRN 2004-02268
Date: September 24, 2019; Expiration: October 24, 2019
Please address comments to:
Nashville District Corps of Engineers,
Regulatory Division,
501 Adesa Parkway, Suite 250,
Lenoir City, TN 37771;
(Attn: Brent Sewell)
SUBJECT: Proposed Discharge of Dredged and/or Fill Material into Waters of the United States (WOUS) associated with the Proposed Kelly Branch Mine, KDNR #848-0242 (AM 2)
TO ALL CONCERNED: The application described below has been submitted for a Department of the Army (DA) Permit pursuant to Section 404 of the Clean Water Act (CWA) for the discharge of fill material into waters of the United States (U.S.). The applicant has applied for an individual 401 certification from the Kentucky Department of Natural Resources (KDNR), pursuant to Section 401(a)(1) of the CWA (33 U.S.C. 1341).
APPLICANT: Nally and Hamilton Enterprises Inc. (Nally and Hamilton)
P.O. Box 2323
London, KY 40741
AGENT: Biological Systems Consultants, Inc.
P.O. Box 54954
Lexington, KY 40555-4954
LOCATION: The streams are tributaries to the Upper Clover fork Cumberland River in Harlan County, Kentucky. The proposed project is located within the Upper Cloverfork watershed of the Cumberland River (HUC 051301010104). The Upper Cloverfork watershed size is approximately 31,969 acres. The
center coordinates for the mining operation are Latitude N 36.89874, Longitude W-83.027244. The project site can be found on the Louellen, KY 7.5 Minute quadrangle map.
DESCRIPTION OF THE PROPOSED WORK: Nally and Hamilton has applied for a Section 404 permit to discharge fill material into Mary Wynn Branch, Left Fork Kelly Branch and Kelly Branch. Proposed impacts to WOUS would occur due to contour and auger mining of the Low, Middle and Highsplint seams
covering an 848.67 acre mining site. The proposed mining plan includes the construction of two Hollow Fills (HF). The proposed mine plan will temporarily or permanently impact 8,219 linear feet of stream. Approximately 753’ of ephemeral stream (401’ for HF 1 and 352’ for HF 2), 2,262’ of intermittent stream (804’ for mine through areas, 1,379’ for HF 1 and 2, and 79’ for Pond 32), and 5,204’ of perennial stream (3,948’ for HF 1 and 2 and 1,256’ for mine through areas) would be impacted to facilitate surface coal mining.
Temporary impacts would occur as a result of mining through two streams totaling 1,317 linear feet. The project will temporarily impact an additional 1,329 linear feet of stream due to sediment ponds and the associated drainage corridors from the proposed hollowfills. The proposed mining project
would result in permanent impacts to 5,573’ of perennial, intermittent, and ephemeral streams for the construction of the two HFs.
Purpose and Need: According to the permit application, the purpose of the project is to develop a coal mine site to meet the market demand for coal and fulfill the related contracts and agreements.
AVOIDANCE AND MINIMIZATION OF IMPACTS TO WATERS OF THE U.S.: Based on information submitted in the project application, the applicant has proposed to minimize the placement of fill into WOUS by utilizing existing mining benches to place excess spoil material and maximizing backfill configurations in spoil storage areas. The applicant has proposed to construct all sediment ponds not associated with a HF in upland areas and use span crossings over Kelly Branch for the proposed haul road.
COMPENSATORY MITIGATION: In order to compensate for impacts to jurisdictional waters, the applicant is proposing a combination of onsite stream restoration and incremental in lieu fee payments. The applicant’s conceptual mitigation proposal is described as follows:
a. As part of the site reclamation process, impacts to the affected stream reaches would be compensated by reconstructing 7,593’ of streams impacted by the coal mining operation. Approximately 79’ of intermittent stream and 1,681’ of perennial stream would be reconstructed in the mine through areas. In addition 5,843’ of perennial, intermittent, and ephemeral stream would be constructed along the side drains of the hollowfills. All onsite
stream reconstruction efforts would utilize natural stream design techniques, substrate restoration, bank stabilization, and installation of in-stream habitat features. A minimum 50 foot vegetated riparian buffer zone would be established on each side of the restored stream segments. Plantings would consist of native plants, trees, and shrubs, and would be planted in a manner sufficient to ultimately provide adequate shading of the restored stream channel. The applicant would be responsible for monitoring, maintenance, and management of the compensatory mitigation project(s) for a period of ten years from completion of each phase of the mitigation work.
b. Using the Eastern Kentucky Stream Assessment Protocol (EKSAP), stream impacts that would occur from mining activities would result in the loss of 6,460 Ecological Integrity Units (EIU). Onsite compensatory mitigation efforts are projected to produce 5,893 EIUs after stream reconstruction efforts are completed (ten years). In addition to the onsite stream reconstruction efforts, the applicant proposes to purchase 729 EIUs to compensate for impacts to WOUS that could not be replaced by onsite compensatory mitigation. The KDFWR uses funds to accomplish stream an wetland restoration and enhancement projects approved by state and federal resource agencies.
Overall, the proposed mitigation efforts are intended to offset and restore functional stream values that would be lost or impacted as a result of project impacts and to compensate for temporal and other unavoidable losses associated with project activity. Plans of the work are attached.
PUBLIC INTEREST REVIEW/CUMULATIVE EFFECTS: The decision whether to issue a DA permit will be based on an evaluation of the probable impacts including cumulative impacts of the activity on the public interest. That decision will reflect the national concern for both protection and utilization of
important resources. The benefit, 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 including the cumulative effects thereof; among 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. In addition, the evaluation of the impact of the activity on the public interest will include application of the guidelines promulgated by the administrator, Environmental Protection Agency, under authority of Section 404(b)(1) of the CWA(40CFR Part 230).
SOLICITATION OF COMMENTS: The USACE 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. Any comments received will be considered by the USACE 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, historical properties, water quality, and general environmental effects, and the other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment (EA) and/or an Environmental Impact Statement pursuant to NEPA. Comments are also used to determine the need for a public hearing and determine the overall public interest of the proposed activity. An EA will be prepared by this office prior to a final decision concerning issuance or denial of the requested DA Permit.
ENDANGERED/THREATENED SPECIES REVIEW (Per Section 7 of the Endangered Species Act): The applicant states the project was coordinated with the USFWS and it was determined the blackside dace (Phoxinus cumberlandensis), Indiana bat (Myotis sodalis), northern long-eared bat (Myotis septentrionalis), and gray bat (Myotis grisescens) were of special concern for the area. The applicant obtained a protection and enhancement plan from the USFWS for the protection of the blackside dace during the operation. 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 impacts to threatened and/or endangered species. 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 the USFWS, if required.
HISTORIC AND CULTURAL RESOURCES: During 2007 and 2010, Phase I cultural resource surveys were conducted on behalf of the applicant for the proposed mining operation. The reports found no evidence of prehistoric or historic sites within the permit area. In a letter dated December 10, 2010, The Kentucky Heritage Council (KHC) concurred with the findings of the survey and determined No Historic Properties Affected within the undertaking’s area of potential effect. Based on the review of the permit application information, the Corps has determined that no historic properties listed in or eligible for listing in the National Register of Historic Places would be affected by this project. A copy of this notice is being sent to the office of the State Historic Preservation Officer for review.
ADDITIONAL INFORMATION: The mining operation is subject to the Surface Mining Control and Reclamation Act (SMCRA) which was enacted by Congress in 1977 to provide a comprehensive program to regulate surface coal mining and reclamation operations. For the purposes of SMCRA, the applicant has described the operation as a 848.67 acre mining site. KDNR is responsible for evaluating applications, including mining and reclamation plans, and issues permits to ensure that all surface coal mining operations in Kentucky meet the performance standards for environmental and public
protection and reclamation required under SMCRA. A copy of this notice is being furnished to the KDNR. Sections 401 and 402 of CWA programs also apply to surface coal mining activities where these activities may impact the chemical, physical, and biological integrity of the nation’s waters. Section 401 provides states with the authority to review and either deny or grant certification for any activities requiring a Federal permit or license, to ensure that they will not violate applicable state water quality standards. The applicant has applied for a Section 401 certification for the surface coal mining activities. Section 402 regulates point source discharges of pollutants into WOUS under the Kentucky Pollutant Discharge Elimination System
(KPDES) program. The applicant has obtained an Individual Section 402 Permit for Coal Mining Activities in the Commonwealth of Kentucky (KPDES No. KY0109134).
REQUEST FOR PUBLIC HEARING: Any person may request a public hearing. The request must be submitted in writing to the District Engineer within the designated comment period of the notice and must state the specific reasons for requesting the public hearing.
COMMENT PERIOD: Written statements received by October 24, 2019, will
become a part of the record and considered in the determination. Any response should be directed to the Regulatory Division, Attention: Mr. Brent Sewell, at the above address or at Brent.J.Sewell@usace.army.mil.
/S/
Joshua W. Frost
Chief, Technical Services Branch
Regulatory Division
U.S. Army Corps of Engineers