§ 816.97 - Protection of fish, wildlife, and related environmental values.

§ 816.97 How must I protect and enhance Protection of fish, wildlife, and related environmental values?.

(a) General requirements. You, the permittee, must, The operator shall, to the extent possible using the best technology currently available, minimize disturbances and adverse impacts on fish, wildlife, and related environmental values and shall achieve enhancement of those such resources where practicable, as described in detail in the fish and wildlife protection and enhancement plan approved in the permit in accordance with § 780. 16 of this chapter.

(b) Requirements related to federal, state, and tribal endangered species laws. -

(1) Requirements related to the Endangered Species Act of 1973.

(i) You may not conduct any surface mining activity that is in violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq. Nothing in this chapter authorizes the taking of a species listed as threatened or endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., or

Endangered and threatened species. No surface mining activity shall be conducted which is likely to jeopardize the continued existence of endangered or threatened species listed by the Secretary or which is likely to result in the destruction or adverse modification of designated critical

habitat unless the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, as applicable, authorizes the taking of a threatened or endangered species or the destruction or adverse modification of designated critical habitat under 16 U.S.C. 1536(b)(4) or 1539(a)(1)(B). (ii) You must promptly report to the regulatory authority the presence of any previously unreported species listed as threatened or endangered, or any previously unreported species proposed for listing as threatened or endangered, under the

habitats of such species in violation of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.

, within the permit or adjacent areas. This requirement applies regardless of whether the species was listed before or after permit issuance. (iii

)

(A) Upon receipt of a notification under paragraph (b)(2)(ii) of this section, the regulatory authority will contact and coordinate with the appropriate state, tribal, and federal fish and wildlife agencies

.

(B) The regulatory authority, in coordination with the appropriate state, tribal, and federal fish and wildlife agencies, will identify whether, and under what conditions, you may proceed. When necessary to ensure compliance with the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., the regulatory authority will issue an order under § 774.10(b) of this chapter requiring that you revise the permit.

(iv) You must comply with any species-specific protection measures required by the regulatory authority in coordination with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, as applicable.

(2) Requirements related to state and tribal endangered species laws.

(i) You must

The operator shall promptly report to the regulatory authority any

previously unreported state

State-

listed

or

tribally

federally-listed endangered or threatened

or endangered

species within the permit

or adjacent areas whenever you become aware of its presence. This requirement applies regardless of whether the species was listed before or after permit issuance.

(ii)

(A) Upon receipt of a notification under paragraph (b)(2)(i) of this section, the regulatory authority will contact and coordinate with the appropriate state or tribal fish and wildlife agencies.

(B) The regulatory authority, in coordination with the appropriate state or tribal fish and wildlife agencies, will

area of which the operator becomes aware. Upon notification, the regulatory authority shall consult with appropriate State and Federal fish and wildlife agencies and, after consultation, shall identify whether, and under what conditions,

you

the operator may proceed.

When necessary, the regulatory authority will issue an order under § 774.10

(

b) of this chapter requiring that you revise the permit.

(c)Bald and golden eagles.

(1) You may not conduct any

No surface mining activity shall be conducted in a manner

that

which would result in the unlawful taking of a bald or golden eagle, its nest, or any of its eggs.

(2) You must

The operator shall promptly report to the regulatory authority any golden or bald eagle nest within the permit area of which

you become

the operator becomes aware.

(3)

Upon notification, the regulatory authority

will contact and coordinate

shall consult with the U.S. Fish and Wildlife Service and also,

when

where appropriate, the

state or tribal

State fish and wildlife agency

to

and, after consultation, shall identify whether, and under what conditions,

you

the operator may proceed.

(

4

d) Nothing in this chapter

authorizes

shall authorize the taking of an endangered or threatened species or a bald or golden eagle, its nest, or any of its eggs in violation of the

Bald and Golden

Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq., or the Bald Eagle Protection Act, as amended, 16 U.S.C. 668

-668d

et seq.

(

d) Miscellaneous protective measures for other species of fish and wildlife. To

e) Each operator shall, to the extent possible

,

using the best technology currently available

, you must

-

(1) Ensure that electric

power transmission lines

powerlines and other transmission facilities used for, or incidental to, surface mining activities on the permit area are designed and constructed to minimize electrocution hazards to raptors

and other avian species with large wingspans.

, except where the regulatory authority determines that such requirements are unnecessary;

(2) Locate

, construct, operate, and maintain

and operate haul and access roads

and sedimentation control structures in a manner that avoids or minimizes

so as to avoid or minimize impacts on important fish and wildlife species or other species protected by

state

State or

federal

Federal law

.

;

(3) Design fences, overland conveyors, and other potential barriers to permit passage for large mammals, except where the regulatory authority determines that such requirements are unnecessary

.

; and

(4) Fence, cover, or use other appropriate methods to exclude wildlife from ponds

that

which contain hazardous concentrations of toxic

or toxic

-forming materials.

(

5

f)

Reclaim and reforest lands that were forested at the time of application and lands that would revert to forest under conditions of natural succession in a manner that enhances recovery of the native forest ecosystem as expeditiously as practicable.

(e) Wetlands.

(1) To the extent possible, using the best technology currently available, you must avoid disturbances to wetlands and, where practicable, enhance them. If avoidance is not possible, you must restore or replace wetlands that you disturb and, where practicable, enhance them.

(2) Nothing in paragraph (e)(1) of this section authorizes destruction or degradation of wetlands in violation of section 404 of the Clean Water Act, 33 U.S.C. 1344.

(f) Habitat of unusually high value for fish and wildlife. To the extent possible, using the best technology currently available, you must avoid disturbances to and, where practicable, enhance riparian and other native vegetation along rivers and streams, lentic vegetation bordering ponds and lakes, and habitat Wetlands and habitats of unusually high value for fish and wildlife. The operator conducting surface mining activities shall avoid disturbances to, enhance where practicable, restore, or replace, wetlands, and riparian vegetation along rivers and streams and bordering ponds and lakes. Surface mining activities shall avoid disturbances to, enhance where practicable, or restore, habitats of unusually high value for fish and wildlife, as described in § 779. 20

(

c)(3) of this chapter. If avoidance of these features is not possible, you must restore or replace those features and, where practicable, enhance them.

(g) Vegetation requirements for fish and wildlife habitat postmining land use. Where fish and wildlife habitat is to be a postmining land use, you must select and arrange the plant species to be used for revegetation to maximize the benefits to fish and wildlife. Plant species must be native to the area and must be on reclaimed areas shall be selected on the basis of the following criteria:

(1) Their proven nutritional value for fish or wildlife.

(2) Their value use as cover for fish or wildlife.

(3) Their ability to support and enhance fish or wildlife habitat after the release of performance bonds.

(4) Their ability to sustain natural succession by allowing the establishment and spread of plant species across ecological gradients. You may not use invasive plant species that are known to inhibit natural succession.

(h) Vegetation requirements for cropland postmining land use. Where cropland is

The selected plants shall be grouped and distributed in a manner which optimizes edge effect, cover, and other benefits to fish and wildlife.

(h) Where cropland is to be the postmining land use, and where appropriate for wildlife- management and crop-management practices, you must the operator shall intersperse the crop fields with trees, hedges, or fence rows throughout the harvested area to break up large blocks of monoculture and to diversify habitat types for birds and other animals.

(i) Vegetation requirements for forestry postmining land uses. Where forestry, whether managed or unmanaged, is Where residential, public service, or industrial uses are to be the postmining land use, you must plant native tree and understory species to the extent that doing so is not inconsistent with the type of forestry to be practiced as part of the and where consistent with the approved postmining land use. In all cases, regardless of the type of forestry to be practiced as part of the postmining land use, you must intersperse plantings of commercial species with plantings of native trees and shrubs of high value to wildlife.

(j) Vegetation requirements for other postmining land uses. Where residential, public service, commercial, industrial, or intensive recreational uses are the postmining land use, you must establish -

(1) Greenbelts comprised of non-invasive native plants that provide food or cover for wildlife, unless greenbelts would be inconsistent with the approved postmining land use plan for that site.

(2)

(i) A vegetated buffer at least 100 feet wide along each bank of all perennial and intermittent streams within the permit area. The width of the buffer must be measured horizontally on a line perpendicular to the stream, beginning at the ordinary high water mark. The buffer must be planted with species native to the area, including species adapted to and suitable for planting in any floodplains or other riparian habitat located within the buffer. The species planted must consist of native tree and understory species if the land was forested at the time of application or if it would revert to forest under conditions of natural succession.

(ii) Paragraph (j)(2)(i) of this section does not apply to situations in which a vegetated buffer comprised of native species would be incompatible with an approved postmining land use that is implemented before final bond release under §§ 800.40 through 800.43 of this chapter.

(k) Planting arrangement requirements. You must design and arrange plantings in a manner that optimizes benefits to wildlife to the extent practicable and consistent with the postmining land use.

the operator shall intersperse reclaimed lands with greenbelts utilizing species of grass, shrubs, and trees useful as food and cover for wildlife.

[48 FR 30327, June 30, 1983, as amended at 52 FR 47360, Dec. 11, 1987; 81 FR 93392, Dec. 20, 2016; 82 FR 54979, Nov. 17, 2017]