§ 780.16 - Fish and wildlife information.

§ 780.16 What must I include in the fish Fish and wildlife protection and enhancement plan?information.

(a) General requirementsResource information. Your Each application must shall include a fish and wildlife protection and enhancement plan that -

(1) Is consistent with the requirements of § 816.97 of this chapter.

(2) Is specific to the resources identified under § 779.20 of this chapter.

(3) Complies with the requirements of paragraphs (b) through (f)

resource information for the permit area and adjacent area.

(1) The scope and level of detail for such information shall be determined by the regulatory authority in consultation with State and Federal agencies with responsibilities for fish and wildlife and shall be sufficient to design the protection and enhancement plan required under paragraph (b) of this section.

(

b) Requirements related to the Endangered Species Act of 1973. (1) Paragraphs (b)(2) and (3) of this section apply when the proposed operation may affect species listed or proposed for listing as threatened or endangered

2) Site-specific resource information necessary to address the respective species or habitats shall be required when the permit area or adjacent area is likely to include:

(i) Listed or proposed endangered or threatened species of plants or animals or their critical habitats listed by the Secretary under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), or

designated or proposed critical habitat under that law.

(2) You must describe the steps that you have taken or will take to comply with the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., including any biological opinions developed under section 7 of that law and any species-specific habitat conservation plans developed in accordance with section 10 of that law.

(3) The regulatory authority may not approve the permit application before there is a demonstration of compliance with the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., through one of the mechanisms listed in § 773.15(j) of this chapter.

(c) Protection of fish, wildlife, and related environmental values in general. You must describe

those species or habitats protected by similar State statutes;

(ii) Habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, or reproduction and wintering areas; or

(iii) Other species or habitats identified through agency consultation as requiring special protection under State or Federal law.

(b) Protection and enhancement plan. Each application shall include a description of how, to the extent possible using the best technology currently available,

you

the operator will minimize disturbances and adverse impacts on fish

, wildlife,

and

related environmental values. At a minimum, you must explain how you will -

(1) Retain forest cover and other native vegetation as long as possible and time the removal of that vegetation to minimize adverse impacts on aquatic and terrestrial species.

(2) Locate and design sedimentation ponds, utilities, support facilities, roads, rail spurs, and other transportation facilities to avoid or minimize adverse impacts on fish,

wildlife

,

and related environmental values

.

(3) Except as provided under § 780.12(g)(4) of this part, select non-invasive native species for revegetation that either promote or do not inhibit the long-term development of wildlife habitat.

(4)

(i) Avoid mining through wetlands or perennial or intermittent streams or disturbing riparian habitat adjacent to those streams. When avoidance is not possible, minimize -

(A) The time during which mining and reclamation operations disrupt wetlands or streams or riparian habitat associated with streams;

(B) The length of stream mined through; and

(C) The amount of wetlands or riparian habitat disturbed by the operation.

(ii) If you propose to mine through or discharge dredged or fill material into wetlands or streams that are subject to the jurisdiction of the Clean Water Act, 33 U.S.C. 1251 et seq., your application must identify the authorizations, certifications, and permits that you anticipate will be needed under the Clean Water Act and describe the steps that you have taken or will take to procure those authorizations, certifications, and permits. The regulatory authority will process your application and may issue the permit before you obtain all necessary authorizations, certifications, and permits under the Clean Water Act, 33 U.S.C. 1251 et seq., provided your application meets all applicable requirements of subchapter G of this chapter. Issuance of a permit under subchapter G of this chapter does not authorize you to conduct any surface mining activity in or affecting waters subject to the jurisdiction of the Clean Water Act before you obtain any required Clean Water Act authorization, certification, or permit. Information submitted and analyses conducted under subchapter G of this chapter may inform the agency responsible for authorizations, certifications, and permits under the Clean Water Act, but they are not a substitute for the reviews, authorizations, certifications, and permits required under the Clean Water Act.

(5) Implement other appropriate conservation practices such as, but not limited to, those identified in the technical guides published by the Natural Resources Conservation Service.

(d) Enhancement measures -

(1) General requirements.

(i) You must describe how, to the extent possible, you will use the best technology currently available to enhance fish, wildlife, and related environmental values both within and outside the area to be disturbed by mining activities, where practicable. Your application must identify the enhancement measures that you propose to implement and the lands upon which you propose to implement those measures. Those measures may include some or all the potential enhancement measures listed in paragraph (d)(2) of this section, but they are not limited to the measures listed in paragraph (d)(2) of this section.

(ii) If your application includes no proposed enhancement measures under paragraph (d)(1)(i) of this section, you must explain, to the satisfaction of the regulatory authority, why implementation of enhancement measures is not practicable.

(2) Potential enhancement measures. Potential enhancement measures include, but are not limited to -

(i) Using the backfilling and grading process to create postmining surface features and configurations, such as functional wetlands, of high value to fish and wildlife.

(ii) Designing and constructing permanent impoundments in a manner that will maximize their value to fish and wildlife.

(iii) Creating rock piles and other permanent landscape features of value to raptors and other wildlife for nesting and shelter, to the extent that those features are consistent with features that existed on the site before any mining, the surrounding topography, and the approved postmining land use.

(iv) Reestablishing native forests or other native plant communities, both within and outside the permit area. This may include restoring the native plant communities that existed before any mining, establishing native plant communities consistent with the native plant communities that are a part of the natural succession process, establishing native plant communities designed to restore or expand native pollinator populations and habitats, or establishing native plant communities that will support wildlife species of local, state, tribal, or national concern, including, but not limited to, species listed or proposed for listing as threatened or endangered on a state, tribal, or national level.

(v) Establishing a vegetative corridor along the banks of streams where there is no such corridor before mining but where a vegetative corridor typically would exist under natural conditions. Species selected for planting within the corridor must be comprised of species native to the area, including native plants adapted to and suitable for planting in any floodplains or other riparian zones located within the corridor. Whenever possible, you should establish this corridor along both banks of the stream, preferably with a minimum corridor width of 100 feet along each bank.

(vi) Implementing conservation practices identified in publications, such as the technical guides published by the Natural Resources Conservation Service.

(vii) Permanently fencing livestock away from perennial and intermittent streams and wetlands.

(viii) Installing perches and nest boxes.

(ix) Establishing conservation easements or deed restrictions, with an emphasis on preserving riparian vegetation and forested corridors along perennial and intermittent streams.

(x) Providing funding to cover long-term operation and maintenance costs that watershed organizations incur in treating long-term postmining discharges from previous mining operations.

(xi) Reclaiming previously mined areas located outside the area that you propose to disturb for coal extraction.

(xii) Implementing measures to reduce or eliminate existing sources of surface-water or groundwater pollution.

(3) Additional enhancement requirements for operations with anticipated long-term adverse impacts.

(i) The exception in paragraph (d)(1)(ii) of this section does not apply if your proposed surface mining activities would result in the -

(A) Temporary or permanent loss of mature native forest or other native plant communities that cannot be restored fully before final bond release under §§ 800.40 through 800.43 of this chapter or

(B) Permanent loss of wetlands or a segment of a perennial or intermittent stream.

(ii) Whenever the conditions described in paragraph (d)(3)(i) of this section apply, the scope of the enhancement measures that you propose under paragraph (d)(1)(i) of this section must be commensurate with the magnitude of the long-term adverse impacts of the proposed operation. Whenever possible, the measures must be permanent.

(iii)

(A) Enhancement measures proposed under paragraph (d)(3)(ii) of this section must be implemented within the watershed in which the proposed operation is located, unless opportunities for enhancement are not available within that watershed. In that case, you must propose to implement enhancement measures in the closest adjacent watershed in which enhancement opportunities exist, as approved by the regulatory authority.

(B) Each regulatory program must prescribe the size of the watershed for purposes of paragraph (d)(3)(iii)(A) of this section, using a generally-accepted watershed classification system.

(4) Inclusion within permit area. If the enhancement measures to be implemented under paragraphs (d)(1) through (d)(3) of this section would involve more than a de minimis disturbance of the surface of land outside the area to be mined, you must include the land to be disturbed by those measures within the proposed permit area.

(e) Fish and Wildlife Service or National Marine Fisheries Service review.

(1)

(i) The regulatory authority must provide the protection and enhancement plan developed under this section and the resource information submitted under § 779.20 of this chapter to the appropriate regional or field office of the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, as applicable, whenever the resource information submitted under § 779.20 of this chapter includes species listed as threatened or endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., designated or proposed critical habitat under that law, or species proposed for listing as threatened or endangered under that law. The regulatory authority must provide the resource information and the protection and enhancement plan to the appropriate Service(s) no later than the time that it provides written notice of the permit application to governmental agencies under § 773.6(a)(3)(ii) of this chapter.

(ii)

(A) When the resource information obtained under § 779.20 of this chapter does not include species listed as threatened or endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., designated or proposed critical habitat under that law, or species proposed for listing as threatened or endangered under that law, the regulatory authority must provide the resource information and the protection and enhancement plan to the appropriate regional or field office of the U.S. Fish and Wildlife Service only if the Service requests an opportunity to review and comment on the resource information and the protection and enhancement plan.

(B) The regulatory authority must provide the resource information and the protection and enhancement plan to the Service under paragraph (e)(1)(ii)(A) of this section within 10 days of receipt of a request from the Service to review the resource information and the protection and enhancement plan.

(2) The regulatory authority must document the disposition of comments that it receives from the applicable Service(s) in response to the distribution made under paragraph (e)(1)(i) of this section to the extent that those comments pertain to species listed as threatened or endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., to designated or proposed critical habitat under that law, or to species proposed for listing as threatened or endangered under that law.

, including compliance with the Endangered Species Act, during the surface coal mining and reclamation operations and how enhancement of these resources will be achieved where practicable. This description shall -

(1) Be consistent with the requirements of § 816.97 of this chapter;

(2) Apply, at a minimum, to species and habitats identified under paragraph (a) of this section; and

(3) Include -

(i) Protective measures that will be used during the active mining phase of operation. Such measures may include the establishment of buffer zones, the selective location and special design of haul roads and powerlines, and the monitoring of surface water quality and quantity; and

(ii) Enhancement measures that will be used during the reclamation and postmining phase of operation to develop aquatic and terrestrial habitat. Such measures may include restoration of streams and other wetlands, retention of ponds and impoundments, establishment of vegetation for wildlife food and cover, and the replacement of perches and nest boxes. Where the plan does not include enhancement measures, a statement shall be given explaining why enhancement is not practicable.

(c) Fish and Wildlife Service review. Upon request, the regulatory authority shall provide the resource information required under paragraph (a) of this section and the protection and enhancement plan required under paragraph (b) of this section to the U.S. Department of the Interior, Fish and Wildlife Service Regional or Field Office for their review. This information shall be provided within 10 days of receipt of the request from the Service.

[52 FR 47359, Dec. 11, 1987, as amended at 81 FR 93330, Dec. 20, 2016; 82 FR 54949, Nov. 17, 2017]