huntington district, corps of engineersjuly 12,2010 operations and readiness division regulatory...

REPLY TO ATIENTION OF

DEPARTMENT OF THE ARMY HUNTINGTON DISTRICT, CORPS OF ENGINEERS

502 EIGHTH STREET HUNTINGTON, WEST VIRGINIA 25701-2070

July 12,2010

Operations and Readiness Division Regulatory Branch UNTrib Leatherwood Creek - 200501385

Oxford Mining Company Mr. Nathan Leggett 544 Chestnut Street Coshocton, Ohio 43812

Dear Mr. Leggett:

Enclosed please find a signed copy of the Department of the Army Section 404 pemlit authorizing you to discharge dredged and fill material into waters of the United States in association with surface coal mining and reclamation activities at the Halls Knob surface mine site located within unnamed tributaries to Leatherwood Creek within the Upper Wills Creek Drainage basin within Sections 14, 15,20 and 21 of Millwood Township, Guernsey County, Ohio.

You are hereby authorized to initiate authorized work within waters of the U.S. at the site. If any changes in the location and plans of the work are found necessary, revised plans must be submitted to this office for approval as required by law, before the work is begun. Enclosed is your copy of the permit to be kept at the site during construction. It is recommended that you supply a copy of the permit to your project engineer responsible for the construction activities.

Upon completion of the work within waters of the United States and the associated compensatory mitigation, the attached certification must be signed and returned to this office. It is imperative that this office be notified two weeks in advance of the commencement of construction, and again upon completion.

If you have any questions regarding the information in this letter or the enclosures, please contact Sheila Newman of the Energy Resource Section at (740) 454-2225 ext. 5 or at [email protected].

Enclosures

Copies Furnished: (See next page)

Sincerely,

~~)JU~ Ginger Mullins, Chief Regulatory Branch

Printed on ® Recycled Paper

Case 1:10-cv-01220-RBW Document 13-14 Filed 09/27/10 Page 1 of 30

Copies Furnished: (With Enclosures)

Mr. Mark Epstein Ohio Historic Preservation Office 67 East Hudson Street Columbus, Ohio 43211-1030

Ms. Wendy Melgin U.S. Environmental Protection Agency Region V, WW-16J 77 West Jackson Street Chicago, Illinois 60604-3590

Dr. Mary Knapp U.S. Fish and Wildlife Service 6950-H Americana Parkway Reynoldsburg, Ohio 43068

Mr. Ric Queen Ohio Environmental Protection Agency Lazarus Government Building Post Office Box 1049 Columbus, Ohio 43216-3669

Mr. Brian Mitch Ohio Department of Natural Resources Environmental Services Section 2045 Morse Road - Building D-3 Columbus, Ohio 43229-6693

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Mr. Brent Heavilin Ohio Department of Natural Resources Division of Mineral Resource Management 2050 East Wheeling Avenue Cambridge, Ohio 43725


DEPARTMENT OF THE ARMY PERMIT

Permittee: Oxford Mining Company

Permit No. LRH-2005-1385

Issuing Office: Huntington District

NOTE: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The term 'this office" refers to the appropriate district or division office of the Corps of Engineers having jurisdiction over the permitta:! activity or the appropriate official of that office acting under the authority of the commanding officer.

You are authorized to perform work in accordance with the terms and conditions specified below.

Project Description: You are authorized to place fill material into waters of the U.S. in association with surface coal mining and reclamation activities at the 263.7 acre Halls Knob surface mine site. Impacts are authorized to 5,445 linear feet of stream (214' of perennial, 3,184' of intermittent and 2,047' of ephemeral stream), 0.173acre of wetland and 0.923 acre of stream impoundments in association with the coal removal, infrastructure, and reclamation. =--

Project Location: The proposed permit area is located in the Upper Wills Creek drainage basin within unnamed tributaries to Leatherwood Creek on 263.7 acres in Sections 14, 15,20 and 21 of Millwood Township, Guernsey County, Ohio.

Permit Conditions:

General Conditions:

1. The time limit for completing the work authorized ends on December 31, 2015. If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least one month before the above date is reached.

2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although YOll may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease 1:0 maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area.

3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorizedby this permit, you must immediately notify this office of what you have found. We will initiate the Federal and state coordination required to determine if the remains warrant a recovery effort or if the site is eligible for listing in the Na1ional Register of Historic Places.

4. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization.

5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached int contains such conditions.

6. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished in accordance with the terms and conditions of your permit.

ENG FORM 1721, Nov 86 EDITION OF SEP 82 IS OBSOLETE (33 CFR 325 (Appendix A»


2

Special Conditions: The special conditions are listed in the attachment sheets (4) titled "Special Conditions for the Individual Permit Issued to Oxford Mining Company for the Halls Knob Surface Coal Mine Site (UNTrib Leatherwood Creek 2005-1385)".

Further Information:

1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to:

() Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).

(x) Section 404 of the Clean Water Act (33 U.S.C. 1344).

() Section !O3 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413).

2. Limits of this authorization:

a. This permit does not obviate the need to obtain other Federal, state, or local authorizations required by law.

b. This permit does not grant any property rights or exclusive privileges.

c. This permit does not authorize any injury to the property or rights of others.

d. This permit does not authorize interference with any existing or proposed Federal project.

3. Limits of Federal Liability: In issuing this permit, the Federal Government does not assume any liability for the following:

a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural causes.

b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest.

c. Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit.

d. Design or construction deficiencies associated with the permitted work.

e. Damage claims associated with any future modification, suspension, or revocation of this permit.

4. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided.

5. Reevaluation of Permit Decision: This office may reevaluate its decision on this permit at any time the circumstance, warrant. Circumstances that could require a reevaluation include, but are not limited to, the following:

a. You fail to comply with the terms and conditions ofthis permit.

b. The information provided by you in support of your permit application proves to ha"le been false, incomplete, or inaccurate (See 4 above).

c. Significant new information surfaces, which this office did not consider in reaching the original public interest decision.

Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocatior. procedures contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The


3

referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measures ordered by this office, and if you fail to comply with such directive, tlis office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost.

6. Extensions. General condition I establishes a time limit for the completion of the activity authorized by this permit. Unless there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest decision, the Corps will normally give favorable consideration to a request for an extmsion of this time limit.

Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this penni:.

-~ 7!tZ//o ~--== '(DATE)

This permit becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed below.

~obert D. Peterson (' Colonel. Corps of Engineers

When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.

(TRANSFEREE) (DATE)


Special Conditions for the Individual Permit Issued to Oxford Mining Company for the Halls Knob Surface Coal Mine Site (UNTrib Leatherwood Creek - 2005-1385)

Sheet 1 of 7

1. Work shall be performed in accordance with the plans attached to this permit (18 pages as Attachment A) dated November 21,2008 submitted to the U.S. Army Corps of Engineers (USACE) January 15,2009.

2. The permittee shall ensure work occurs in accordance with Section 401 of the Clean Water Act Water Quality Certification Permit issued by Ohio Environmental Protection Agency (OEPA) on September 11,2009, OEPA ID No. 083435. (Attachment B).

3. The permittee shall develop and submit an Adaptive Management Plan (AMP) for USACE approval within 90 days of this authorization. This plan shall include a description of al:.:tions to be initiated when the USACE determines there has been a degradation of water quality or aquatic biology directly caused by the mining activities of the permittee. The AMP shall also include a timeline for initiation of the described actions which shall be implemented by the permittee following written approval by the USACE. Such actions may include, but are not limited to, revisions to the material handling plans, revisions to the storm water storage; grading and vegetation of reclaimed areas, addition of pretreatment ponds, and internal storm water diversion.

4. The permittee shall measure the following parameters on a quarterly basis at monitoring stations U-9, 0-9, SS-lO, SS-II, SS-12, and SS-13:

• Conductivity flow, pH, temperature, dissolved oxygen, iron, aluminum, selenium, TDS, TSS, Conductivity, Calcium, Potassium, Magnesium, Sulfate, Chloride, Sodium, and Total Alkalinity.

• The permittee shall submit this data to the USACE within 15 days of collection and/or upload the data to a file transfer protocol (FTP) site.

5. The permittee shall sample habitat and aquatic biology twice between June 15 to September 30 at least 6 weeks apart at stations SS-lO, SS-II, SS-12 and SS-13, in accordance with qualitative methodology described in OEP A Primary Headwater Habitat Manual for the Headwater Habitat Evaluation Index and the Headwater Macroinvertebrate Field Evaluation Index (HMFEI), on an annual basis, and:.

• The permittee shall report the data to the USACE within 15 days of completing each set of samples and/or upload the data to a file transfer protocol (FTP) site.

• The HHEI score shall be used to determine any change in the physical habitat. • After a season (two complete monitoring reports) of data collection an analysis of the

data shall be reported to the USACE by the permittee within 30 days of reporting the second set of sample data.

• If there is a decrease in two consecutive HHEI or HMFEI scores, the permittee will evaluate the cause and take appropriate actions in accordance with the approved AMP.


Special Conditions for the Individual Permit Issued to Oxford Mining Company for the Halls Knob Surface Coal Mine Site (UNTrib Leatherwood Creek- 2005-1385)

Sheet 2 of7

6. Yearly sampling shall be conducted on each of the thirteen sampling stations using the qualitative methodology described in the Primary Headwater Habitat Manual (HHEI) and the Headwater Macroinvertebrate Field Evaluation Index (HMFEI). HHEI and HMFEI scores shall be reported in the annual monitoring reports. The approved sampling stations (SS) are documented on the Monitoring Station Map (Hall's Knob D-2334) dated 2/23/2010.

7. For the temporal loss of stream functions within the mining permit D-2334 limits, the permittee shall provide an additional 150 linear feet of stream mitigation per 12 months for which there is a temporal loss of stream functions, pro rata. The 12-month period shall commence upon the first placement of fill in any stream and shall end when the last stre:am has been reconstructed in accordance with the Compensatory Mitigation Plan. By way of example, if that period of time is 30 months, then the permittee shall provide for an additional 375 linear feet of stream mitigation. The permittee shall submit an additional stream mitigation plan for the temporal loss of stream functions within 90 days of the date that the last stream has been reconstructed in accordance with the Compensatory Mitigation Plan or six years from the date of this permit, whichever occurs first.

8. If conductivity exceeds 2400uS/cm, Total Dissolved Solids exceeds 1500 mg/l, or if monitoring indicates a statistically significant upward trend in conductivity directly caused by mining activity of the permittee, additional mitigation shall be provided focused on chemical improvements in the watershed in accordance with the AMP.

9. Compensation for impacts to waters: The mitigation sites shall be constructed in accordance with the compensatory mitigation plan (CMP). The Compensatory Mitigation Plan inc:ludes the reconstruction of streams and wetlands, as well as reclamation activities in association with re-mining. Concerning stream and wetland mitigation, you shall ensure the following:

• You shall ensure the reconstruction of 214 linear feet of perennial stream channel and 3,925 linear feet of intermittent stream channel (i.e. the hydrology of these channels must be supplied by both ground and surface water of sufficient duration to meet the applicable definitions);

• You shall ensure the construction of 0.32 acre of wetlands; • The reconstructed stream channel segments have been designed and shall be

constructed using natural stream design ·techniques to reestablish the appropriate hydro geomorphic configuration. Where feasible, in-stream structures and habitat features such as bank boulders, boulder clusters, root wads and large woody debris shall be installed to enhance aquatic habitat;

• You shall incorporate in-stream enhancement measures such as riffle/run/pool areas, eddy rocks, aquatic habitat structures and meanders within the reconstructed/restored, enhanced and established stream channels to provide habitat for aquatic diversity;



Sheet 3 of7

• You shall establish minimum 50-foot wide vegetated buffer zones along each side all reconstructed stream channels and wetlands. Plantings shall occur in accordance with the planting plan as indicated in the Compensatory Mitigation Plan.

10. Monitoring Reports: You shall submit yearly reports to this office that document the current status of the mining operation, including completed activities and activities planned for the following year. These reports, the first of which should be submitted by December 31 st of this year, shall describe completed work in waters of the United States on-site, as well as the status of all required mitigation components, as described above.

In regard to specific monitoring requirements concerning the reconstruction of stream channels, establishment of riparian corridors and construction of wetland mitigation, you shall ensure the following:

a. The submittal of a minimum of five annual monitoring reports, the first of which shall be submitted to this office no later than December 31 st of the first full year following completion of all mitigation activities. Each report shall document the status ofthe required mitigation areas, including established riparian zones, by providing the following information:

• USACE Permit Number • Name and contact information of permittee and consultant • Name of party responsible for conducting the monitoring and the date(s) th~:

inspection was conducted. • A restatement of the compensation site plan goals, objectives and performance

standards (i.e. A summary paragraph defining the purpose of the approved project, acreage and linear feet and type of aquatic resources impacted, and mitigation acreage and linear feet and type of aquatic resources authorized to compensate for the aquatic resource impacts.)

• Written description on the location and any identifiable landmarks of the compensatory mitigation project including information to locate the site perimeter( s).

• Directions to the mitigation site(s). • Dates the compensatory mitigation commenced and/or was completed. • A description of monitoring methods must be provided. If using sampling

methods, include sample size, statistical justification for sampling regime and data analyses performed. If appropriate, include assessment of natural population growth by target species.


Special Conditions for the Individual Permit Issued to Oxford Mining Company for tbe Halls Knob Surface Coal Mine Site (UNTrib Leatherwood Creek - 2005-1385)

Sheet 4 of7

• Any structural failures or external disturbances on the site, and describe any management activities and/or corrective measures that were implemented during the previous year. A description of all differences between the approved mitigation plan and the as-built mitigation site and rationale for variance from the approved mitigation plan.

• A list of the monitoring requirements and performance standards, as specified in the approved compensatory mitigation plan and special conditions of the DA permit, and an evaluation of whether the compensatory mitigation sites are successfully achieving the approved performance standards or trending toward success. A table is one option for comparing the performance standards to the conditions and status of the developing mitigation sites.

• Summary data to substantiate the success and/or potential challenges associated with the compensatory mitigation projects. Photo documentation (displayed on 8 W' x 11" paper, dated, and clearly labeled with the direction from which the photo was taken) may be provided to support the findings and recommendation referenced in the monitoring report and to assist the USACE project manag{:r in assessing whether the compensatory mitigation project is successful for the monitoring period. A site map must be provided showing the mitigation site perimeter, location of data collection and photo documentation.

• A description of the conditions of the compensatory mitigation sites and associated buffers, an assessment of the presence and level of occurrence of invasive species and the degree to which performance standards are being met must be included. A description of the status of all erosion control measures on the compensation site(s) and a discussion of their functioning status and details on the need for their continued use.

• A description of stream substrate, flow conditions and evidence of an ordinary high water mark. A jurisdictional determination (JD) shall be completed wlthin two years of completing the compensatory mitigation work and submitted to the USACE for verification. If available, this JD shall be included in the second annual monitoring report. All reports shall provide a status of the enhanced and restored stream segments, including photographs and narrative descriptions of channel development.

• Applicable physical, biological and chemical water quality data shall be submitted with each annual monitoring report for a minimum period of 5 years. In order to provide a comparison of stream development throughout the years of required monitoring, it would be helpful to provide these scores with each submitted monitoring report.

• Documentation of the percent survival of all trees established within the riparian zones of all preserved and reconstructed streams and representative photographs of all established riparian zones; and



Sheet 5 of7

• Documentation concerning the presence or absence of invasive species within riparian corridors. Invasive species are those recognized as target, well-established and watch list species in a list dated April 2000 and developed by the Ohio Department of Natural Resources and The Nature Conservancy (enclosed). Should the presence of any of these species be documented at any time during monitoring procedures, you shall contact this office to discuss appropriate measures needed to control and eradicate these species.

11. Success Criteria: In order to be considered successful, the mitigation areas shall, at a minimum, achieve the following criteria:

• Implementation of the CMP must ensure the presence of a total of 214 linear feet of perennial stream, 3,925 linear feet of intermittent reconstructed streams and 0.32 acres of wetlands on-site.

• Reconstructed streams on site must meet at a minimum the HHEI and HMFEI score of the applicable stream lost and show hydrology as indicated on premining flow regime status;

• Constructed wetlands, WM-l must score as a minimum Category II wetlands using the ORAM;

• Constructed or restored waters must meet the definition of waters of the United States under the Regulatory Program regulations applicable on the date of the nationwide permit authorization and are connected to a surface water tributary system of waters of the United States;

• Waters of the United States are functioning as the intended type and at the J,;.~vel of ecological performance prescribed in the CMP;

• Buffer and riparian zones and other areas integral to the enhancement of the: aquatic ecosystem are functioning as the intended type of ecosystem component and at the level of ecological performance prescribed in the CMP;

• Water must flow above ground when present in the restored and created stn~am channels. Hydrologic regimes of reconstructed channels must be the same as those present prior to initiation of permitted activities;

• At least 85% of the primary channel bottom in the proposed restored and created stream channels would be free of sediment;

• The presence of a 50' wide vegetated (grasses and trees) riparian corridor along each side of all streams on-site;

• An 60 percent survival rate of all established trees in the riparian zones of all reconstructed streams; and

• The presence of no more than 5 percent aerial cover of any invasive species identified on the enclosed ODNRlTNC 2002 list within the vegetated riparian corridors.



Sheet 6 of7

12. Monitoring inspections, remedial actions and release from monitoring: You shall arrange an on-site meeting with the USACE during the growing season after the first, third and fifth year reports are submitted. A current jurisdictional delineation of all waters of the United States shall be provided for verification. Problems, if any, of the mitigation areas shall be addressed and potential solutions must be incorporated into actions the permittee would take to allow the mitigation areas to reach their proposed functional status. The permittee is responsible for implementing reasonable corrective measures recommended by the USACE. During the fifth year review, if success criteria have been met, you would be released from future monitoring requirements. However, if success criteria have not been adequately met, additional measures would be required to successfully meet the mitigation requirements. The applicant may be required to implement contingency measure(s), including additional mitigation, to ensure compensation adequately offsets the loss of waters in association with the proposal. Any additional mitigation determined to be necessary by this office shall be subject to further monitoring and review to assess success.

13. Long Term Protection: You shall ensure constructed waters, including a total of214 linear feet of perennial stream, 3925 linear feet of intermittent stream, 0.32 acre of wetland and associated 50 foot wide buffers are protected through a conservation easement or similar instrument. This long term protective instrument must be submitted within 90 days of completion of the mitigation construction.

14. The permittee is required to apply for and secure all necessary permits, certifications or other approvals (i.e. floodplain encroachment permit, MSHA permit) from federal, state or locaI regulatory agencies, prior to commencing construction activity.

15. Best management practices (BMPs) shall be implemented during construction. BMPs include but are not limited to: utilization of silt fences, straw bales, check dams, limiting vegetation removal and bank shaping to the maximum extent practicable, mulching and s~~eding, and the prohibition of the use or storage of toxic or hazardous materials within the constmction areas. Construction activities shall be performed during low flow conditions. All disturb(::d areas shall be seeded and mulched to minimize erosion. Appropriate bank protection measures shall be installed in channel or on barren areas requiring erosion control including but not limited to native grasses and forbs, vegetation, and other acceptable clean non-contaminated material.

16. Should new information regarding the scope and/or proposed impacts of the project become available that was not submitted to this office during our review of the proposal, you shall submit written information concerning proposed modification(s) to this office for review and evaluation.


Special Conditions for the Individual Permit Issued to Oxford Mining Company for tbe Halls Knob Surface Coal Mine Site (UNTrib Leatherwood Creek - 2005-1385)

Sheet 7 of7

17. Endangered Species Act: Section 7 obligations under Endangered Species Act must be: reconsidered if new information reveals impacts of the proposed project that may affect federally listed species or critical habitat in a manner not previously considered, the proposed project is subsequently modified to include activities which were not considered during Section 7 consultation with the USFWS, or new species are listed or critical habitat designated that might be affected by your proposed project. The permittee is reminded this Department of the Army Permit authorization does not authorize the "take" of a threatened or endangered species as defined under the Endangered Species Act. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the USFWS, both lethal and non-lethal "takes" of protected species are in violation of the ESA.

18. Cultural Resources: In the event any previously unknown historic or archaeological sites or human remains are uncovered while accomplishing the activity authorized by this permit, the permittee must cease all work immediately and contact local, state and county law enforcement offices (only contact law enforcement on findings of human remains), our office at (740) 4:54-2225 ext. 5, and the Ohio Historic Preservation Office at (614) 298-2000. In accordance with a voluntary agreement established between our office and Native American Tribes, consultation pursuant to the Native Americans Grave Protection and Repatriation Act would be perfomled in all cases involving the discovery of human remains.

7


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huntington district, corps of engineersjuly 12,2010 operations and readiness division regulatory...

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