Sec. 26.20.23.02. Fish and Wildlife Protection

A. Any person conducting surface mining activities shall, to the extent possible, and using the best technology currently available, minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, and shall achieve enhancement of the resources when practicable.

B. A surface mining activity may not be conducted which is likely to jeopardize the continued existence of endangered or threatened species listed by the Secretary of the U.S. Department of the Interior, or which is likely to result in destruction or adverse modification of designated critical habitats of the species in violation of the Endangered Species Act of 1973, as amended (16 U.S.C. §1531 et seq.), or similar State statute. Surface mining may not be conducted in a manner which would result in unlawful taking of a bald or golden eagle, its nest, or its eggs.

C. A person conducting surface mining activities who becomes aware of a State or federally listed endangered or threatened species within the permit area, or designated critical habitats of the species as identified by the Endangered Species Act of 1973, as amended (16 U.S.C. §1531 et seq.), or similar State statute, or a golden or bald eagle nest promptly shall notify the Bureau.

D. On notification or discovery of any threatened or endangered species, critical habitat of the species, or golden or bald eagle nest, the Bureau shall consult with appropriate State and federal fish and wildlife agencies and determine whether, and under what conditions, the operator may proceed.

E. This regulation does not authorize the taking of an endangered or threatened species or a bald or golden eagle, its nest, or its eggs in violation of the 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 et seq.).

F. Each person who conducts surface mining activities shall, to the extent possible and using the best technology currently available:

(1) Ensure that electric 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, except when the Bureau determines these requirements are unnecessary;

(2) Locate and operate haul and access roads so as to avoid or minimize impacts on important fish and wildlife species or other species protected by State or federal law;

(3) Design fences, overland conveyors, and other potential barriers to permit passage for large mammals, except when the Bureau determines these requirements are unnecessary; and

(4) Fence, cover, or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials.

G. If fish and wildlife habitat is to be a primary or secondary postmining land use, the operator shall:

(1) Select plant species to be used on reclaimed areas, based on their nutritional and cover value for fish and wildlife and their ability to support and enhance fish and wildlife habitat after release of bonds;

(2) Distribute plant groupings to maximize benefit to fish and wildlife; plants should be grouped and distributed in a manner which optimizes edge effect, cover, and other benefits for fish and wildlife.

H. If cropland is to be the postmining land use, and when appropriate for wildlife and crop-management practices, and the landowner approves, each person who conducts surface mining activities shall, to the extent possible, intersperse the 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. If the primary land use is to be residential, public service, or industrial land use, and when the landowner approves, each person who conducts surface mining activity shall, to the extent possible, intersperse reclaimed lands with greenbelts using species of grass, shrubs, and trees useful as food and cover for birds and small animals, unless greenbelts are inconsistent with the approved postmining or adjacent land use.

J. The operator conducting surface mining activities shall avoid disturbance to, enhance when practicable, restore, or replace:

(1) Wetlands;

(2) Riparian vegetation along rivers and streams and bordering ponds and lakes; and

(3) Habitats of unusually high value for fish and wildlife.