Updated Final MiddlesboroWQC_2020-040-1M2 .pdf

KentuckyUnbridledSpirit.com An Equal Opportunity Employer M/F/D

ANDY BESHEAR

GOVERNOR REBECCA W. GOODMAN

SECRETARY

ENERGY AND ENVIRONMENT CABINET

DEPARTMENT FOR ENVIRONMENTAL PROTECTION

300 SOWER BOULEVARD

FRANKFORT, KENTUCKY 40601

ANTHONY R. HATTON

COMMISSIONER

July 30, 2021

Nathan A. Branen, Acting Commander U.S. Army Corps of Engineers 110 9th Ave. South, Rm A-405

Nashville, TN 37203

Re: §401 Water Quality Certification USACE Yellow Creek Project Yellow Creek Bell County, Kentucky AI No.: 127062; Activity ID: APE20210003 WQC No: WQC2020-040-1M2 USACE ID No.: N/A

Dear Acting Commander Branen:

Pursuant to Section 401 of the Clean Water Act (CWA) and 40 CFR 121.7(c), the Commonwealth of Kentucky certifies it has reasonable assurances that applicable water quality standards under Kentucky Administrative Regulations Title 401, Chapter 10, established pursuant to Sections 301, 302, 303, 304, 306, and 307 of the CWA, will not be violated by the above referenced project provided that the U.S. Army Corps of Engineers authorizes the activity under a federal license or permit, and the attached conditions are met.

Other permits from the Division of Water may be required for this activity. Activities within a floodplain may require a Permit to Construct Across or Along a Stream; contact the Floodplain Management Section (502- 564-3410). Projects that disturb one acre or more of land or is part of a larger common plan of development or sale that will ultimately disturb one acre or more of land require a Kentucky Pollution Discharge Elimination System (KPDES) Stormwater Permit; contact the Surface Water Permits Branch (502-564-3410 or SWPBSupport@ky.gov). A Groundwater Protection Plan is required if activities listed in Section 2(2) of 401 KAR 5:037 are conducted. A Water Withdrawal Application is required for activities proposing raw water withdrawals of 10,000 gallons per day or more; contact the Watershed Management Branch (502-564-3410).

All future correspondence on this project must reference AI No. 127062. The attached document is your official Water Quality Certification; please read it carefully. Please contact Ellen M Mullins by phone at 502-782- 0720 or email at Ellen.Mullins@ky.gov if you have any questions.

Sincerely, X Shawn Hokanson, Manager Water Resources Branch Kentucky Division of Water

SH:EMM

Attachment cc: David Adams, USACE: Nashville District (via email: david.a.adams@usace.army.mil) Travis Wiley, USACE: Nashville District (via email: travis.a.wiley@usace.army.mil) Timothy Higgins, USACE Nashville District (via email: timothy.a.higgins@usace.army.mil) Cody Flatt, USACE Nashville District (via email: cody.a.flatt@usace.army.mil) Lee Andrews, USFWS: Frankfort (via email: kentuckyes@fws.gov) Alice Mandt, KDOW Basin Coordinator (via email: mandt@ky.gov) Robert Miller, KDOW London Regional Office (via email: robertl.miller@ky.gov) Shawn Hokanson, KDOW Frankfort, WRB, WQC (via email: shawn.hokanson@ky.gov)

ACTV0000000007 (AI 127062 USACE Yellow Creek Project) maintenance dredging and removal of debris and sediment:

Submittal/Action Requirements:

Condition No.

S-1 U.S. Army Corps of Engineers, Nashville District shall notify the Water Quality Certification Project Manager or Supervisor of the scheduled start of construction activities at least two weeks before the start of construction.

This condition is necessary for the Division of Water to be informed of the ongoing activity for the purposes of site visits to ensure implementation of Kentucky Regulatory Statutes and Administrative Regulations; the Division will monitor the environment to afford more effective and efficient control practices, to identify changes and conditions in ecological systems, and to warn of emergency conditions. [401 KAR 10:031 Section 2(1)(a)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

S-2 U.S. Army Corps of Engineers, Nashville District shall notify the Water Quality Certification Project Manager or Supervisor of substantial completion of construction no later than two weeks post-construction.

This condition is necessary for the Division of Water to be informed of the ongoing activity for the purposes of site visits to ensure implementation of Kentucky Regulatory Statutes and Administrative Regulations; the Division will monitor the environment to afford more effective and efficient control practices, to identify changes and conditions in ecological systems, and to warn of emergency conditions. [401 KAR 10:031 Section 2(1)(a)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

S-3 U.S. Army Corps of Engineers, Nashville District shall submit a written completion report within 90 days after substantial completion of construction of the project Phase 1 and Phase 2 to the Water Quality Certification Section Project Manager or Supervisor.

This condition is necessary for the Division of Water to monitor the environment to afford more effective and efficient control practices, to identify changes and conditions in ecological systems, and to warn of emergency conditions. [401 KAR 10:031 Section 2(1)(a)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70- 110]

Water Quality Certification USACE Yellow Creek Project

Facility Requirements Permit Number: WQC2020-040-1M2

Activity ID No.:APE20210003

ACTV0000000007 (AI 127062 USACE Yellow Creek Project) maintenance dredging and removal of debris and sediment:

Narrative Requirements:

T-1 The work approved by this certification shall be limited to:

-Removal of accumulated sediment and debris along 8,100 linear feet (LF) of stream channel.

-Approximately 136,600 cubic yards (CY) of material removal during a two-phase process.

-Project's beginning is Winchester Ave Bridge (Lat/Long: 36.602059, -83.750547) and end is NE of intersection Dunlap Hill Rd and Belt Line Rd (Lat/Long:

36.618817, -83.735167).

-18 TEMPORARY stream crossings at (Lat./Long.):

36.602352/-83.750358 (Yellow Creek Bypass [YCB] crossing ~120ft N Winchester Ave Bridge from east bank levee side to island in creek) 36.602411/-83.750476 (YCB crossing ~130ft N Winchester Ave Bridge from island in creek to west bank) 36.603165/-83.749814 (YCB crossing ~450ft NE Winchester Ave Bridge from east bank levee side to island in creek) 36.603480/-83.749669 (YCB crossing ~570ft NE Winchester Ave Bridge from island in creek to west bank) 36.604732/-83.748529 (small stream crossing ~900ft SW Cumberland Ave Bridge) 36.605289/-83.747981 (small stream crossing ~670ft SW Cumberland Ave Bridge) 36.605362/-83.747728 (YCB crossing ~600ft SW Cumberland Ave Bridge to access west bank) 36.605972/-83.747173 (YCB stream crossing from east bank levee side to island in creek ~320ft SE Cumberland Ave Bridge) 36.606467/-83.746720 (YCB stream crossing from island in creek to west bank ~70ft SE Cumberland Ave Bridge) 36.607024/-83.746987 (riprap ditch crossing and construction entrance from Cumberland Ave at middle school) 36.606906/-83.746336 (YCB stream crossing from east bank levee side to west bank ~90ft NE Cumberland Ave Bridge) 36.607875/-83.745664 (YCB stream crossing from east bank levee side to west bank ~500ft NE Cumberland Ave Bridge) 36.608397/-83.746104 (small stream crossing between middle school and ballfields) 36.609946/-83.745272 (small stream crossing between sediment bars in YCB ~770ft S Stony Fork confluence) 36.611908/-83.744349 (crossing Stony Fork at confluence with YCB) 36.614494/-83.740667 (small stream crossing ~400ft SW Airport Rd Bridge) 36.615870/-83.737862 (small stream crossing ~550ft NE Airport Rd Bridge) 36.617861/-83.735691 (small stream crossing ~1,500ft NE Airport Rd Bridge) Mechanical equipment may enter creek channel at these locations to dredge material, although is to be kept to a minimum.

-No pushing material within the creek channel with any mechanical equipment. All material to be dredged up, hauled to a vehicle, and hauled away. No dredged material will be stored within floodplain or floodway without prior approval from Floodplain Management Section of the KY Division of Water.

-Dredging activities to be conducted during low flow conditions only.

-Due to excessive sediment deposition and lower flood levels, excavation down to the elevation of the active channel bed on either side of the low flow channel

Water Quality Certification USACE Yellow Creek Project

Facility Requirements Permit Number: WQC2020-040-1M2

ACTV0000000007 (AI 127062 USACE Yellow Creek Project) maintenance dredging and removal of debris and sediment:

will occur along a 400ft reach from approximately 100ft upstream and 250ft downstream of Cumberland Avenue Bridge.

-Existing 36" culvert will be replaced with 42" culvert to gain access from the creek to a temporary 12-acre disposal site (Site D in the Draft EA, dated March 5, 2020), located north of Bypass Channel beginning downstream of the confluence of the Stony Fort and the Bypass Channel and ending approximately 350ft.

above the Airport Road Bridge at Lat/Long: 36.61510109, -83.74124904. A permanent disposal location is anticipated to be at the Double Mountain Mine, LLC Refuge Site.

-Vegetative material to be stored on government owned property, near the channel clearing footprint, and burned in accordance with state and local regulations.

-All excavated bank will be sloped back on a 3:1 (H:V) grade.

-Riparian zone planting will be done after completion of the work.

This condition is necessary to confirm the activity approved under this certification. [401 KAR 9:010(1)(a)(2)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

T-2 All work performed under this certification shall adhere to the design and specifications set forth in the following document(s):

- Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification received February 13, 2020;

- Proposed Stream Diversion and Crossing and Appendix B, Project Plans Exhibit, received July 20, 2020;

- Best Management Practices (BMPs) for Controlling Erosion, Sediment, and Pollutant Runoff from Construction Sites, Revised 2009, received April 28, 2020;

- Draft Environmental Assessment dated March 5, 2020, received March 12, 2020;

- Phone Log March 12, 2020 with USACE Project Managers;

- Special Environmental Language, received May 12, 2020 and Specifications Language for Middlesboro, attached to an email from USACE Project Manager, dated March 3, 2020;

- Additional information included in emails from Corps project manager, dated June 9, 2020, July 9, 2020, and July 29, 2020;

- Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification received on April 28, 2021;

- Additional Information received via email on May 19, 2021;

- Pre-Filing Meeting Request received April 28, 2021;

- Certification Request received May 28, 2021.

This condition is necessary to confirm the activity approved under this certification. [401 KAR 9:010(1)(a)(2)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

Water Quality Certification USACE Yellow Creek Project

Facility Requirements Permit Number: WQC2020-040-1M2

ACTV0000000007 (AI 127062 USACE Yellow Creek Project) maintenance dredging and removal of debris and sediment:

T-3 U.S. Army Corps of Engineers, Nashville District shall cease operations immediately upon encountering uncharted mussel beds. Notify the Water Quality Certification Section Project Manager or Supervisor of such location(s) within seven (7) business days of discovery.

This condition is necessary to minimize the impact on the aquatic habitat, protect the use of the stream and surface water designation. [401 KAR 10:031 Section 4(1)(c) and Section 4(1)(h)] [401 KAR 10:031 Section 8(2)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

T-4 U.S. Army Corps of Engineers, Nashville District shall cease operations immediately if a federally endangered or threatened mussel is identified among dredged material. The Water Quality Certification Section Project Manager or Supervisor and the U.S. Fish & Wildlife Service (USFWS) shall be notified within 24 hours of discovery.

This condition is necessary to minimize the impact on the aquatic habitat, protect the use of the stream and surface water designation. [401 KAR 10:031 Section 4(1)(c) and Section 4(1)(h)] [401 KAR 10:031 Section 8(2)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

T-5 No in-stream operations or activities shall be conducted during fish spawning season (April 15 through June 15), due to the potential impacts of increased sediment load and associated water quality and designated aquatic habitat impacts, unless specifically authorized by the Water Quality Certification Section.

This condition is necessary to protect aquatic habitat during sensitive seasons for most aquatic species. [401 KAR 10:031 Section 4(1)(c) and Section 4(1)(h)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

T-6 Should evidence or report of any particular fish or wildlife resource area(s) experience substantial adverse impacts, stream designated use impairments, and/or violations of water quality standards occur as a result of dredging and disposal operations and activities, the Water Quality Certification Section Project Manager or Supervisor shall be notified immediately and reserves the right to impose additional restrictions, additional investigations, or alternative practices in order to protect and preserve the biological integrity of the resource area(s).

This condition is necessary to minimize the impact the aquatic habitat, protect the use of the stream and surface water designation. [401 KAR 10:031 Section 4(1)(c) and Section 4(1)(h)] [401 KAR 10:031 Section 8(2)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

Water Quality Certification USACE Yellow Creek Project

Facility Requirements Permit Number: WQC2020-040-1M2

ACTV0000000007 (AI 127062 USACE Yellow Creek Project) maintenance dredging and removal of debris and sediment:

T-7 Measures shall be taken to prevent or control spills of fuels, lubricants, or other toxic materials used in construction from entering the watercourse.

This condition is necessary to prevent water pollution as prohibited by statute. [401 KAR 10:031 Section 2(1)(a)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

T-8 Should stream pollution, wetland impairment, and/or violations of water quality standards occur as a result of this activity (either from a spill or other forms of water pollution), the Kentucky Division of Water shall be notified immediately by calling 800/564-2380.

This condition is necessary for the Division of Water to monitor the environment to afford more effective and efficient control practices, to identify changes and conditions in ecological systems, and to warn of emergency conditions. [401 KAR 10:031 Section 2(1)(a)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70- 110]

T-9 Heavy equipment (e.g. bulldozers, backhoes, draglines, etc.), if required for this project, should not be used or operated within the stream channel. In those instances where such instream work is unavoidable, then it shall be performed in such a manner and duration as to minimize re-suspension of sediments and disturbance to the channel, banks, or riparian vegetation.

This condition is necessary to prevent and minimize objectionable deposits and pollution and protect the use of the stream. [401 KAR 10:031 Section 2(1)(a)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

T-10 U.S. Army Corps of Engineers, Nashville District is responsible for preventing degradation of waters of the Commonwealth from soil erosion. An erosion and sedimentation control plan must be designed, implemented, and maintained in effective operating condition at all times during construction.

This condition is necessary to prevent and minimize objectionable deposits and pollution and protect the use of the stream. [401 KAR 10:031 Section 2(1)(a)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

T-11 Remove all sediment and erosion control measures after re-vegetation has become well-established.

This condition is necessary to prevent and minimize objectionable deposits and pollution and protect the use of the stream. [ 401 KAR 10:031 Section 2(1)(a)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

Water Quality Certification USACE Yellow Creek Project

Facility Requirements Permit Number: WQC2020-040-1M2

ACTV0000000007 (AI 127062 USACE Yellow Creek Project) maintenance dredging and removal of debris and sediment:

T-12 Any fill or riprap shall be of a composition that shall not cause violations of water quality standards by adversely affecting the biological, chemical, or physical properties of waters of the Commonwealth. If riprap is used, it shall be of a weight and size that bank stress or slump conditions shall not occur.

This condition is necessary to prevent and minimize objectionable deposits and pollution and protect the use of the stream. [401 KAR 10:031 Section 2(1)(a)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

T-13 U.S. Army Corps of Engineers, Nashville District shall adhere to the Water Quality Certification issued by the Division of Water in order to avoid or reduce the impacts of the maintenance dredging program, including: notification of dredging and disposal operations and activities to downstream water supply intakes, limiting operations and activities to only those dredge and disposal sites authorized through this certification, exclusion zones around mussel beds, spill plan and control measures, and notification of uncertified operations and activities or violations of water quality standards.

This condition for notification, minimization, spill plan and control measures is necessary to prevent and minimize objectionable deposits and pollution, protect aquatic habitat, the use of the stream, and the surface water designation. [401 KAR 10:031 Section 2(1)(a)] [401 KAR 10:031 Section 4(1)(c) and Section 4(1)(h)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

T-14 The authorization of this certification coincides with the duration of authorization by the issued federal permit.

This condition is necessary for the issuance of the certification to align with the issuance of the federal permit. [KRS 224.16-050(2)]. [401 KAR 10:030 Section 1, KRS

224.10-100, KRS 224.70-110]

Water Quality Certification USACE Yellow Creek Project

Facility Requirements Permit Number: WQC2020-040-1M2

ACTV0000000007 (AI 127062 USACE Yellow Creek Project) maintenance dredging and removal of debris and sediment:

T-15 If there is a transfer or conveyance of the project site during the issued WQC term for the approved activity, the U.S. Army Corps of Engineers, Nashville District shall submit written notice to the Water Quality Certification Section Project Manager or Supervisor of the transfer or conveyance of the project site or any part of the project site at least 60 days prior to the transfer or conveyance of the project site. The notification shall include the WQC number; the Agency Interest (AI) No.; the name, mailing address, email address, and telephone number of the current owner; the name, mailing address, email address, and telephone number of the prospective transferee; the proposed effective date of transfer/conveyance; and a copy of the documentation evidencing the transfer/conveyance. Failure to comply with this condition does not negate the validity or enforceability of this certification.

This condition is necessary for the Division of Water to be aware of authorized impacts, the appropriate responsible party and to monitor the environment to afford more effective and efficient control practices, to identify changes and conditions in ecological systems, and to warn of emergency conditions. [401 KAR 9:010(1)(a)(2)]. [401 KAR 10:030 Section 1, KRS 224.10-100, KRS 224.70-110]

Water Quality Certification USACE Yellow Creek Project

Facility Requirements Permit Number: WQC2020-040-1M2