Frasure Creek 404 Application in Buckhorn Creek Watershed Withdrawn

David Baldridge, CELRL-OP-FS
Eastern Kentucky Regulatory Office
845 Sassafras Creek Road
Sassafras, Kentucky 41759

Ms. Lee Anne Devine
Regulatory Branch
US Army Corps of Engineers
P.O. Box 59
Louisville, KY 40201-0059


Re: Frasure Creek Mining, LLC
Public Notice LRL-2009-239
Kentucky Mine Permit No. 813-0328

Dear Mr. Baldridge and Ms. Devine:

Thank you very much for your gracious extension of the comment period up to and including today, in which to finalize and transmit these comments concerning the proposed activity covered by Public Notice LRL-2009-239. These comments have been developed after reviewing the Public Notice and the permit application and associated maps on file with the Kentucky Department of Mine Permits, Permit # 813-0328.

The applicant has requested authorization pursuant to Section 404 of the Clean Water Act to place fill material associated with coal mining activity, into jurisdictional waters of the Commonwealth and Unites States. The proposed activity would extract coal from the Hazard #8, Hazard #9 and Hazard #10 coal seams within a 350-acre mining area, and would construct six permanent ?excess spoil” fills for a permanent impact of 6,911 feet of ephemeral and 3,689 feet of intermittent streams, with an additional 2,650 feet of intermittent streams affected by the sediment ponds and an additional 755 feet of intermittent streams “temporarily” impacted by isolation of the stream reach between the toe of the fills and the in-stream sediment control structures. According to the Public Notice, a total of 14,005 feet of temporary and permanent impacts to ephemeral and intermittent streams is proposed.

To offset these impacts, the applicant proposes to use a combination of onsite “stream construction”, i.e. constructing a drainage channel across the top and slope of the fills, and payment of an in-lieu fee to the KDFWR Stream and Wetland Mitigation Fund.

Summary of Comments

1. The proposed activity constitutes major federal action significantly affecting the human environment, within the meaning of the National Environmental Policy Act and the implementing regulations of the Corps of Engineers, and must be accompanied by the development of an Environmental Impact Statement prepared in accordance with the National Environmental Policy Act.

2. The proposal to allow additional placement of fill material into waters of the Buckhorn Creek watershed must be prefaced by a thorough evaluation of available alternatives that would avoid impact on waters of the United States, including a redesign of the mine plan and mine sequencing in order to minimize the necessity to offload spoil from the mine site, placement of excess spoil material on previously mined lands (both those under the control of the applicant and those available which could be leased for reclamation purposes), and by assuring that the restoration of the original premining contour is done both in elevation and aspect. Once alternatives that avoid impacts are exhausted, minimization of impacts must be thoroughly explored and documented. The U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, in partial settlement of claims raised in the Bragg litigation, agreed to a protocol for mine fill optimization and mine fill minimization, known commonly as “AOC +.” In the absence of a final fill minimization / optimization policy for the Commonwealth of Kentucky , the AOC+ protocol represents your agency’s policy with respect to documentation that the proposed activity has been designed to avoid and minimize impacts, and the applicant should be required to employ that policy and produce the documentation necessary to show that the mine sequence has been designed to optimize and minimize fill number and size. Finally, with respect to mitigation, the use of drainage channels on side slops of fills does not constitute adequate mitigation for loss of the ephemeral reaches, and should not be credited towards mitigation. Additionally, the loss of time between the destruction of the aquatic resource, and the actual application of the in-lieu monies by KDFWR must be added into the calculation of loss, since unlike on or off-site mitigation projects undertaken prior to or concurrent with the loss, there may be a significant lag in time between the damage to the resource and expenditure from that fund. The applicant should be required to demonstrate the unavailability of projects within the watershed, either on or off-site or through mitigation banks, prior to paying in-lieu fees since there is no assurance that they will offset losses within the aquatic reaches that are being directly and indirectly impacted.

Until such analyses are conducted and it is demonstrated convincingly that all practicable alternatives to the proposed fills, ponds and stream reach impacts have been employed and exhausted, and all mitigation measures have been incorporated, issuance of the requested authorization would be contrary to the “public interest.” KRC respectfully requests that the application be denied without prejudice to resubmit once these actions have been taken.

I. NEPA Compliance

A decision by the U.S. Army Corps of Engineers to approve the construction of the fills and in stream sediment structures is plainly subject to the requirements of the National Environmental Policy Act as “major federal action” potentially having a significant effect on the human environment. In a situation where an applicant requests a federal permitting action, such as is the case here, the USACE has a non-delegable responsibility to assure that the requirements of the National Environmental Policy Act are satisfied.

The Council on Environmental Quality regulations, as well as those of the USACE, require that the agency determine the appropriate scope of the "proposal" under consideration, as prelude to assessing the direct, indirect and cumulative effects and determining what level of environmental analysis and documentation is appropriate.

The scope of this “proposal,” must, for NEPA purposes, includes both the direct placement of all waste material and the construction of in-stream sediment ponds to support that waste placement, but also all filling, road construction, excavation and other land-altering activity proposed in support of the coal mining operation. In order for the applicant to secure a 404 authorization, avoidance must be demonstrated to be infeasible. This necessarily entails the USACE evaluating whether the mine plan, mine sequencing, and proposed mine method and choice of equipment, has been optimized to avoid effects to the extent possible. As the USACE recognized in agreeing on the AOC+ policy in the Bragg litigation, it is impossible for an applicant to demonstrate or for the agency to conclude that all practicable alternatives have been exhausted, without evaluating the manner in which the mine is designed, how the spoil is proposed to be managed, whether the calculations on the volume of “excess” spoil are realistic, and other questions involving the source of the “fill” material, which is the mining activity. If the applicant is accurate in representing that all measures have been taken to minimize the fills, then the USACE must evaluate whether that is the case, since the state mining agency does not, at this time, evaluate fill necessity but instead limits the review to fill stability.

KRC requests that the USACE begin the scoping process for an EIS for the proposed 350-acre mine complex, and that the scope of that analysis include the existing mining in the Buckhorn Creek watershed and subwatersheds, and the cumulative impact on forest fragmentation, habitat loss, and water quality and water resources, of the proposed mining operation and existing and anticipated future mining by the applicant and other mining companies.

The Council believes that the scale, the location, and the possible environmental consequences associated with the proposed activity, demand preparation of an Environmental Impact Statement to guide and instruct and inform your agency in the review of the proposed project. The test for whether an environmental impact statement is required is whether the proposal for action is "major federal action" that may "significantly" affect the human environment. "Major federal action" includes actions with "effects that may be major and which are potentially subject to Federal control and responsibility." 40 CFR 1508.l8. Major reinforces but, according to the Council on Environmental Quality, has no meaning independent of the term "significantly." 40 CFR 1505.18.

In order to determine the "significance" of the federal action, both the context and intensity of the action must be considered. Both short and long-term effects, and direct as well as indirect effects must be considered. Among the indirect effects that must be evaluated in determining whether an EIS is required are:

"Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems."

40 CFR 1508.8(b).

Taken as a whole, the CEQ regulations define major federal actions as those with effects (direct, indirect and cumulative) that may be major and which are potentially subject to federal control and responsibility. This is not a situation where the area of secondary impacts, or the types of anticipated effects, are so remote or speculative so as to defy characterization and assessment.

The individual and cumulative impacts of this proposed operation against the backdrop of the extensive past mining within the Buckhorn watershed, requires that a thorough cumulative hydrologic impact assessment CHIA) be undertaken. As you are aware, the Commonwealth of Kentucky has not, since the delegation of the mining program in 1982, conducted proper CHIA assessments. Both the 404(b)(1) guidelines and NEPA compel your agency to evaluate cumulative hydrologic impacts, and in the absence of properly-conducted CHIAs regarding surface and groundwater impacts for Long Fork, Williams Fork and Buckhorn Creek, the applicant is obligated to undertake such an assessment in order to enable your agency to meet NEPA obligations, satisfy the 404 guidelines, and make a finding that the issuance of the authorization is in the public interest.

II. The Application Does Not Satisfy the Section 404(b)(1) Guidelines

Essential to proper application of the 404(b)(1) guidelines is the stepwise assessment of impacts to aquatic habitat and waters of the United States. Where a request is made to place dredged or fill material in Waters of the United States, the applicant must first define the project purpose, and the agency must independently assess the project purpose and then determine whether the impacts can be avoided, and if not, how the impacts can be minimized and how they must be compensated for by mitigation.

In this instance, absent evidence of compliance with the AOC+ protocol or other peer-reviewed, recognized protocol for mine planning and design that evidences minimization and optimization of fills, and absent a demonstration that all upland locations reasonably available for disposal of excess spoil material, have been exhausted, and absent the development of a cumulative hydrologic impact assessment that evaluates the effects of this proposed mining operation against the backdrop of the significant past and proposed mining in the area, it cannot be concluded that avoidance and minimization have been fully employed.

The Corps of Engineers regulation at 33 C.F.R. 320.4(a)(1) demands that:

"For activities involving 404 discharges, a permit will be denied if the discharge that would be authorized by such permit would not comply with the Environmental Protection Agency’s 404(b)(1) guidelines."

33 C.F.R. 320.4(a)(1).

Among the rigorous requirements of the Section 404(b)(1) guidelines is the mandate to prohibit the discharge of dredged or fill material:

"if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences."

40 C.F.R. 230.10(a).

The practicable alternatives must include those which do not involve a discharge of dredged or fill material, as well as discharges of dredged or fill material at other locations. 40 C.F.R. 230.10(a)(1)(i), (ii).

The applicant must demonstrate the necessity of the impacts on waters of the United States, and the lack of feasible alternatives, including locations for the project that would result in less impact.

Those alternatives should include:

a. documentation using AOC+ or other peer-reviewed protocol for demonstrating that the mine plan, design and sequencing (both of the mining of each seam and the mining of all seams) has been designed to minimize off-loading of spoil;

b. a demonstration and commitment by the applicant that in restoring the mined site to the approximate original premining contour, that both elevation and aspect will be considered and that the material will be backstacked to the maximum extent possible consistent with stability;

c. documentation that all reasonably available sites (including pre-law and post-SMCRA mine sites) within 1/2 mile of the permit boundary of the proposed mine and the existing adjacent mining complex, have been evaluated for upland disposal of the fill material;

d. engineering designs for use of compacted, constructed fills rather than end- or side-dumping of waste, since so-called durable rock fills are typically lower in the watershed and affect more stream reach than constructed fills where the material is hauled and placed, rather than dumped, and is compacted in lifts;

e. use of on-bench sediment structures in order to avoid the necessity for or to allow downsizing of in-stream sediment structures;

f. consolidation of proposed fills into fewer watersheds.

Absent submission of an alternatives analysis meeting the requirements of the 404(b)(1) guidelines, the application must be rejected.

Once the agency is satisfied that the mine has been designed and sequenced to minimize the generation of excess spoil, that all reasonably upland locations have been evaluated, and that the location of and construction methods for the fills have minimized and optimized fill number, location and size, the applicant must demonstrate that the impacts which cannot be avoided will be minimized. In order to support this demonstration, the applicant is obligated to demonstrate that material damage to the hydrologic balance, including recharge, quality and integrity of the surficial fracture-flow aquifer and other aquifers, and stream flow and quality, will be avoided, and that the cumulative hydrologic impacts of this proposed activity in the context of previous mining and other current and proposed mining within the Buckhorn Creek watershed and the subwatersheds, will not be significant. Absent such a cumulative hydrologic impact assessment, neither NEPA, nor the 404(b)(1) guidelines would be satisfied.

Until such documentation is developed, it cannot be determined whether the proposed fills represent the least damaging practicable alternative nor whether the effects have been minimized and the compensation fully addresses the unavoidable impacts. For this reason, the application should be denied without prejudice.

III. The “public interest” requires that the proposal be denied at this time.

As you are aware, the Corps of Engineers has developed a policy which is applicable to the review of all applications for a Department of the Army permit, called the “public interest review.” 33 C.F.R. 320.4(a)(1). In addition to the obligations of your agency under the National Environmental Policy Act, and those imposed under the Section 404(b)(1) guidelines, the public interest review policy instructs that

"the decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of this general balancing process.

* * * *
All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economic, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, 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."

33 C.F.R. 320.4(a)(1).

The obligation to conduct a public interest review is not satisfied merely by undertaking the required analysis under the National Environmental Policy Act, but rather is a distinct obligation from both the NEPA mandate and the requirements of Section 404 of the Clean Water Act. Even if it were determined that the environmental consequences of the proposed project were without significant environmental effect, (a proposition which is not supported by the record), the responsibility of the agency under the public interest review is distinct and separate from its obligations under NEPA and the 404(b)(1) guidelines, as recognized in Van Abbema v. Fornell, 807 F.2d 633, 637-8 (7th Cir. 1986):

"[r]elative absence of significant environmental effects does not translate directly into overall social benefit. The Corps must follow two distinct, if parallel, guidelines in issuing a permit after a FONS!. First, Section 102(2)(E) ofNEPA, 42 D.S.C. 4332(2)(E), requires all federal agencies to 'study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.' And second, Corps regulations require that a permit shall issue only after a general 'public interest review' determines that the benefits outweigh the detriments of a proposal."

Id. at 638.

The Council believes that in this instance, the lack of documentation of the cumulative hydrologic impacts of the proposed activity, and the cumulative effect of the further fragmentation of forested habitat on terrestrial and aquatic species, in conjunction with the lack of documentation of fill minimization and optimization and exhaustion of reasonably available upland disposal sites, require denial of the requested authorization.

Thank you for your consideration of these comments.

Cordially,

Tom FitzGerald

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