[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 88866-88869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28300]


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DEPARTMENT OF AGRICULTURE

Forest Service


Ouachita National Forest, Scott and Sebastian Counties, Arkansas; 
Heavener Coal Leasing Project; Environmental Impact Statement

AGENCY: Forest Service, Agriculture (USDA).

ACTION: Notice of intent to prepare an environmental impact statement.

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SUMMARY: The USDA Forest Service (FS) is preparing an environmental 
impact statement (EIS) as the lead Federal agency with support from 
Federal cooperating agencies, the U.S. Department of Interior (DOI) 
Bureau of Land Management (BLM) and Office of Surface Mining 
Reclamation and Enforcement (OSMRE). The purpose of the analysis is to 
respond to a Federal coal Lease by Application (LBA) submitted to the 
BLM from the Emera

[[Page 88867]]

Corporation on behalf of Ouro Mining Inc. The application seeks 
approval to access and recover Federal metallurgical coal resources 
from approximately 3,077 acres that underly lands on the Ouachita 
National Forest (ONF). No surface mining is proposed on National Forest 
System (NFS) lands. The FS and BLM have consent and leasing 
determinations to be made based in association with this EIS. The OSMRE 
does not have a decision to be made at this time but may tier to this 
analysis in the future.

DATES: Comments concerning the scope of the analysis for the EIS must 
be received by January 25, 2024. The draft environmental impact 
statement (DEIS) is expected in July 2024. The final EIS is expected to 
be available for review in June 2025.

ADDRESSES: Documents pertinent to this proposal are available for 
review on the project website at: https://www.fs.usda.gov/project/?project=64897.
    Send electronic comments to: https://cara.fs2c.usda.gov/Public//CommentInput?Project=64897.
    Send written comments to: Forest Supervisor, Heavener Project, P.O. 
Box 1270, Hot Springs, AR 71902.

FOR FURTHER INFORMATION CONTACT: Contact FS Project Manager Michelle 
Davalos via email at <a href="/cdn-cgi/l/email-protection#0a5947244c5924426f6b7c49656b665a7865604a7f796e6b246d657c"><span class="__cf_email__" data-cfemail="a1f2ec8fe7f28fe9c4c0d7e2cec0cdf1d3cecbe1d4d2c5c08fc6ced7">[email protected]</span></a> or by phone at 276-
220-1670. For the BLM, contact Robert Swithers, District Manager via 
email at <a href="/cdn-cgi/l/email-protection#0e5d4320485d20466b6f784d616f625e7c61644e7b7d6a6f20696178"><span class="__cf_email__" data-cfemail="41120c6f07126f09242037022e202d11332e2b01343225206f262e37">[email protected]</span></a> or by phone at 601-919-4650. 
Individuals who use telecommunication devices for the deaf (TDD) may 
call the Federal Information Relay Service (FIRS) at 800-877-8339, 24 
hours a day, every day of the year, including holidays.

SUPPLEMENTARY INFORMATION: On December 21, 2012, a Federal coal LBA was 
submitted to the BLM Eastern States Office by Emera Corporation on 
behalf of Ouro Mining, Inc. On March 7, 2014, the BLM accepted the 
lease application. The application requests access to extract Federal 
metallurgical coal resources under lands managed by the ONF on the 
Poteau-Cold Springs Ranger District in Arkansas. The proposed lease 
area is in T3N, R32W, Sections 8-11, 14, 15, 17-19 and T3N, R33W, 
Section 13 in Scott and Sebastian Counties, Arkansas. The proposed 
Federal lease area is located adjacent and directly to the north of 
current coal leases held by Ouro Mining on private lands near Bates, 
Arkansas. The Emera Corporation's application involves a mix of 
reserved public domain lands and acquired lands on the ONF.
    BLM is responsible for considering whether a coal lease would be 
offered through the competitive bid process and what stipulations would 
be required for surface resource protection. Because the lease would 
involve minerals underlying the ONF, the FS administrative unit with 
jurisdiction for managing surface resources, the BLM must have FS 
consent prior to deciding whether to offer the lease for sale.

Purpose and Need for Action

    The purpose of the project is to respond to the Federal coal LBA 
submitted to the BLM Eastern States Office by Emera Corporation on 
behalf of Ouro Mining Inc. to extract metallurgical coal from 3,077 
acres beneath the ONF. Under the Mineral Leasing Act of 1920 (MLA), as 
amended, 30 U.S.C. 181 et seq., and the Mineral Leasing Act for 
Acquired Lands of 1947 (MLAAL), as amended, 30 U.S.C. 351 et seq. The 
BLM is responsible for leasing Federal coal and regulation of the 
development of that coal on approximately 570 million acres of the 700 
million acres of mineral estate that is owned by the Federal 
Government. This responsibility encompasses Federal mineral rights on 
Federal lands and Federal mineral rights located under surface lands 
with non-Federal ownership. Under the authority of the MLA and MLAAL, 
the BLM administers leasing and monitors coal production.
    Under the MLA, the BLM has responsibility for reviewing the Emera 
Corporation application and determining if it will approve the 
application and offer the lease for sale through a competitive bid 
process. The BLM takes into consideration whether leasing the applied 
for lands would be in the public interest (30 U.S.C. 181-287, 351-359; 
43 CFR 3425.1 and 3472.1). The BLM regulations state the BLM must 
reject an application if ``leasing of the land covered by the 
application, environmental or other sufficient reasons, would be 
contrary to the public interest'' (43 CFR 3425.1-8(a)(3)). Many, often 
competing, interests must be considered in arriving at a public 
interest determination, including, but not limited to, the applicant's 
request; the environmental impacts; the economic benefit to the local, 
state, and national economy; rights of qualified surface owners; 
ensuring a fair return for the use of the public resources; and 
conservation of the public resource (BLM Manual 3435). Further, because 
the lease would involve minerals underlying the ONF, the BLM must have 
FS consent prior to deciding whether to offer the lease for sale (43 
CFR 3461.5). The ONF is an administrative unit of the FS and as such FS 
has the jurisdiction for managing surface resources. FS will determine 
whether to provide consent to the BLM under the applicable statutory 
standards.
    The 2005 Ouachita National Forest Revised Land and Resource 
Management Plan (ONF Revised Forest Plan) does not address 
metallurgical coal leasing. For this reason, the FS will determine 
whether the proposed lease area on NFS lands is suitable for coal 
leasing. A forest plan amendment that provides additional direction for 
managing coal may be needed. If needed, the scope of the plan amendment 
would be limited to the 3,077 acres proposed for Federal metallurgical 
coal leasing. However, it would be programmatic in nature and plan 
direction would apply to future projects (36 CFR 219.13(b)). As part of 
its consent analysis, the Forest Service will consider, but not limit 
it to, the unsuitability criteria that the BLM applies on its own lands 
as outlined in 43 CFR 3461.5.
    In association with the Federal coal lease application, the Forest 
Service will respond to a special use permit application received from 
Arkansas Valley Electric Cooperative to construct and operate 
approximately 3.0 miles (out of 9 total miles) of 161kV transmission 
powerline and 2.0 miles of associated new powerline access roads across 
NFS lands on the ONF for the purpose of providing electricity to the 
coal operation. The approximately 6.0 miles of powerline not on NFS 
lands would be addressed in the EIS cumulative effects analysis.

Proposed Action

    The FS will assess whether the proposed lease area on NFS lands is 
suitable for coal leasing and if so, whether to consent to leasing 
3,077 acres of Federal coal underlying the Ouachita National Forest as 
described in the Emera Corporation application. As part of assessing 
consent, the FS will develop lease stipulations that protect surface 
resources. The stipulations will be included with any FS consent 
decision to lease. The BLM would include these stipulations in the coal 
lease.
    Additionally, connected actions associated with the lease include 
the:
    <bullet> Construction, operation, and maintenance of a 161kV 
powerline on 3.0 miles of NFS lands and the construction of 
approximately 2.0 miles of powerline access roads.
    <bullet> Issuance of a special use permit that authorizes a 100-
foot right of way (ROW) for the 161kV powerline.

[[Page 88868]]

Issuance of the permit would be contingent on the metallurgical coal 
lease being sold, and the mining plan approved and permitted.
    <bullet> If needed, a forest plan amendment that may add management 
direction for the leasing of metallurgical coal on 3,077 acres.

Expected Impacts

    Disclosure of potential adverse impacts to NFS lands includes 
subsidence, which means the land surface is lowered as a result of 
mining activities. Resources potentially affected include, but are not 
limited to, vegetation, soil, and water. The EIS will address the 
potential for impacts from increased carbon emissions. Whether 
greenhouse gas emissions could approach significance over the life of 
the project is unknown at this time. Construction and maintenance of 
the electrical powerline and its associated roads would be designed to 
comply with the ONF Revised Forest Plan; significant impacts to 
vegetation, water, and soil resources are not expected.

Lead and Cooperating Agencies

    The FS is the lead agency for the preparation and development of 
the EIS. The BLM and OSMRE are cooperating agencies. The FS will 
coordinate with BLM and OSMRE as cooperating agencies during 
preparation of the EIS, during the public review process, and 
throughout the decision-making process. The FS and BLM will be making 
separate decisions. The OSMRE does not have a decision to be made at 
time but may tier to this analysis for future decisions.

Responsible Officials

    The official responsible for the Forest Service consent 
determination is the Ouachita Forest Supervisor. This authority was 
delegated by the Southern Region Regional Forester on October 16, 2023. 
The official responsible for the BLM leasing decision is the BLM 
Eastern States State Director.

Scoping Comments and the Objection Process

    This notice of intent initiates the scoping process, which guides 
the development of the EIS. In this process the FS and BLM are 
requesting comments on the plan amendment, potential alternatives and 
impacts, and identification of any relevant information, studies or 
analyses of any kind concerning impacts affecting the quality of the 
human environment. Additional opportunities for public comment will be 
provided when the draft EIS is available. Whether virtual or in-person 
meetings will be hosted during the scoping period is to be determined. 
It is important that reviewers provide their comments at such times and 
in such manner that they are useful to the agency's preparation of the 
final EIS; therefore, comments should be provided prior to the close of 
the comment period and should clearly articulate the reviewer's 
concerns and contentions. Commenting during the opportunity to comment 
provided by the FS Responsible Official as prescribed by the applicable 
regulations will also govern eligibility to object once the final EIS 
and Draft Record of Decision has been published. Comments received in 
response to this solicitation, including names and addresses of those 
who comment, will be part of the public record for this proposed 
action. Comments submitted anonymously will be accepted and considered; 
however, they will not be used to establish eligibility for the 
objection process.
    The site-specific FS decisions (consent and the powerline) will be 
subject to the FS's predecisional administrative review procedures 
established in 36 CFR part 218. Those wishing to object to the site-
specific decisions must meet the requirements at 36 CFR part 218, 
subparts A and B, for the project.
    If a forest plan amendment is needed, that decision will be subject 
to the plan-level administrative review procedures established in 36 
CFR part 219. Those wishing to object to the forest plan amendment must 
meet the requirements at 36 CFR part 219, subpart B (per 36 CFR 
219.54). (See 36 CFR 219.59(b).) It is possible that the 36 CFR parts 
218 and 219 objection process would run concurrently.

Permits, Licenses or Other Authorizations Required

    Should the BLM decide to sell the Federal metallurgical coal lease 
through the competitive bid process, OSMRE will be the permitting 
authority for the 3,077 acres of Federal land for coal leasing. OSMRE 
would approve and enforce the operator's subsidence control plan and 
ensure that mining-related impacts on the hydrological balance or acid 
mine discharge would be minimized. The Federal lease holder would be 
required to provide OSMRE with a final mine plan that provides details 
on how the underground mine and any surface infrastructure would be 
constructed, operated, and maintained.
    OSMRE would prepare a mine plan decision document and make a 
recommendation to the DOI Assistant Secretary of the Interior for Land 
and Minerals Management (ASLM) whether to approve, approve with 
conditions, or disapprove the mine plan. OSMRE would request FS consent 
on the terms and conditions of the mine plan approval prior to 
submitting its recommendation to ASLM.
    An additional finding is required by the Secretary of the Interior 
on whether Federal lands within the national forest have significant 
recreational, timber, economic, or other values that may be 
incompatible with coal mining operations. That finding, as required by 
section 522(e)(2) of the Surface Mining Control and Reclamation Act (30 
CFR 761.11(b)), would rely on a recommendation of compatibility and 
determination of compliance (1990 OSMRE and FS memorandum of 
understanding (MOU)) from the FS, and a subsequent compatibility 
determination from OSMRE. Operation and reclamation of the 
metallurgical coal mine would be under the permitting jurisdiction of 
OSMRE.

Nature of Decision To Be Made

    Among other considerations, the responsible officials will review 
the proposed action, other alternatives, environmental consequences, in 
order to make the following decisions:
    For the BLM the decisions to be made are whether:
    (1) The proposed metallurgical coal lease area is acceptable for 
coal leasing (43 CFR part 3461).
    (2) Areas unsuitable for surface mining of coal have been 
identified as required by 43 CFR 3461.5.
    (3) There are special conditions designed to protect resources that 
would be required for a future coal lease.
    (4) The amount of coal recoverable has been identified and is 
acceptable for a future consideration of leasing.
    (5) The screening process has been completed in accordance with 43 
CFR 3420.1-4(e). If the BLM determines the proposed lease area is 
suitable and can made available for a Federal coal lease, the lease 
would be offered for sale through the competitive bid process. The BLM 
decision for a lease to utilize Federal lands would be documented in a 
record of decision (ROD) issued by the BLM.
    For the FS the decisions to be made are whether:
    (1) The lands underlying the ONF are suitable for coal leasing;
    (2) To provide consent, with appropriate lease stipulations to 
protect surface resources, to the BLM concerning a Federal coal Lease 
by Application (LBA) submitted to the BLM from the Emera Corporation on 
behalf of Ouro Mining Inc.;

[[Page 88869]]

    (3) To approve the powerline and associated access roads and issue 
a special use permit with terms and conditions; and
    (4) If needed, to approve a forest plan amendment that may provide 
management direction for coal leasing on 3,077 acres within the ONF.
    The FS decision on suitability, consent with surface leasing 
stipulations, the powerline and access roads special use permit, and a 
forest plan amendment (if needed) would be documented in a Record of 
Decision issued by the FS. Consent to the BLM would be issued through 
correspondence.

Substantive Provisions

    The FS's Land Management Planning Rule at 36 CFR 219.13(b)(2) 
requires the responsible official to provide notice of which 
substantive requirements of 36 CFR 219.8 through 219.11 are likely to 
be directly related to the amendment. Whether a rule provision is 
directly related to an amendment is determined by the purpose for the 
amendment and the effects (beneficial or adverse) of the amendment, and 
is informed by the best available scientific information, scoping, 
effects analysis, monitoring data or other rationale (36 CFR 
219.13(b)(5)). Based on those criteria, the Planning Rule provision 
likely to be directly related to the forest plan amendment (if needed) 
is: Sec.  219.10(a)(2) (multiple use).

Additional Information

    The EIS will identify, analyze, and consider mitigation to address 
the reasonably foreseeable impacts to surface resources from the LBA, 
the electrical powerline, and the associated access roads. In 
accordance with 40 CFR 1502.14(e), the agencies will evaluate 
appropriate mitigation measures not already included in the LBA. 
Mitigation may include avoidance, minimization, rectification, 
reduction or elimination over time, and compensation; and may be 
considered at multiple scales, including the landscape scale. The 
agencies will utilize and coordinate the National Environmental Policy 
Act (NEPA) and land use planning processes to help support compliance 
with applicable procedural requirements under the Endangered Species 
Act (16 U.S.C. 1536) and section 106 of the National Historic 
Preservation Act (54 U.S.C. 306108) as provided in 36 CFR 800.2(d)(3), 
including public involvement requirements of section 106. The 
information about historic and cultural resources and threatened and 
endangered species within the area potentially affected by the LBA and 
proposed plan amendment will assist the agencies in identifying and 
evaluating impacts to such resources.
    Indian Tribal Nations will be consulted on a government-to-
government basis in accordance with Executive Order 13175, BLM MS 1780, 
and other Departmental policies. Tribal concerns, including impacts on 
Indian trust assets and potential impacts to cultural resources, will 
be given due consideration. Federal, state, and local agencies, along 
with Indian Tribal Nations and other stakeholders that may be 
interested in or affected by the proposed Federal coal LBA for the 
Heavener project, the amendment to the ONF Revised Forest Plan, and 
powerline-associated actions. They are invited to participate in the 
scoping process and, if eligible, may request or be requested by the 
agencies to participate in the development of the EIS as a cooperating 
agency.
    Additional opportunities for government-to-government consultation 
will be provided during the NEPA process.

    Dated: December 19, 2023.
Gregory Smith,
Associate Deputy Chief, National Forest System.
[FR Doc. 2023-28300 Filed 12-22-23; 8:45 am]
BILLING CODE 3411-15-P


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