West Virginia Field Office

694 Beverly Pike

Elkins, West Virginia 2624l

March 9, 2006

Colonel William E. Bulen

District Engineer

Attn: Regulatory Branch

U.S. Army Corps of Engineers

502 Eighth Street

Huntington, West Virginia 25701

Mr. Robert A. Fala

West Virginia Division of Environmental Protection

601 57th Street SE

Charleston, West Virginia 25304

Re: Final Supplemental Biological Opinion for the Laxare East and Black
Castle Contour Surface Mining Projects

Dear Colonel Bulen and Mr. Fala:

This document transmits the U.S. Fish and Wildlife Service\'s
(Service\'s) final supplemental biological opinion (BO) on the proposed
Laxare East and Black Castle Contour surface mines (hereafter referred
to as the "proposed action" or "project") located in Boone County, West
Virginia, and its effects on the federally listed Indiana bat (*Myotis
sodalis*), in accordance with section 7 of the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.). The original consultation on
the project was completed on February 18, 2005, with issuance of a
biological opinion (hereafter referred to as the 2005 BO). Consultation
has since been reinitiated. New information has revealed effects of the
agency action that may affect the Indiana bat in a manner or to an
extent not considered in the 2005 BO. In addition, the project has been
modified in a way that causes an effect to the Indiana bat not
considered in the 2005 BO. Consequently, the amount or extent of
incidental take anticipated in 2005 BO needs to be revised.

A substantial portion of the information and analysis contained in the
2005 BO is still applicable, and therefore is not repeated in this
document. Rather, this document addresses the changes to the 2005 BO by
providing replacement and supplementary information and analysis and
identifying information from the 2005 BO that is no longer applicable.
Information and analysis from the 2005 BO that is no longer applicable
is specifically identified where it is not apparent by the presentation
of new information and analysis.

With regard to labeling of figures and tables:

> Figure 1a in this BO replaces Figure 1 in the 2005 BO
>
> Figures 2a and 2b replace Figure 2 in the 2005 BO
>
> Figure 4a in this BO replaces Figure 4 in the 2005 BO
>
> Table 2a in this BO replaces Table 2 in the 2005 BO
>
> Table 6a replaces Table 6 in the 2005 BO
>
> Table 7a replaces Table 7 in the 2005 BO
>
> Table A is new (no corresponding table in the 2005 BO).
>
> Table 16a replaces Table 16 in the 2005 BO.

All other tables and figures remain the same as in the 2005 BO.

This document addresses the Clean Water Act section 404 permits from the
U.S. Army Corps of Engineers (Corps). It also serves to implement the
terms and conditions of the programmatic 1996 Formal Section 7
Biological Opinion and Conference Report on surface coal mining and
reclamation operations under State and Federal regulatory programs
adopted pursuant to the Surface Mining Control and Reclamation Act. The
Corps and the West Virginia Department of Environmental Protection
(WVDEP) serve as joint action agencies for the reinitiation of this
consultation, whereas Massey Energy Company is the applicant.

**CONSULTATION HISTORY**

*\[The following information supplements the "Consultation History"
section in the 2005 BO by adding to the chronology since completion of
the 2005 BO.\]*

Following issuance of the 2005 BO, the WVDEP issued State section 401
water quality certification on May 6, 2005. The Corps issued a 404
permit for the Black Castle Contour mine on August 23, 2005. The
applicant's monitoring of the Indiana bat maternity colony, as required
under the BO, began on April 1, 2005. On July 5, 2005, Apogee
Environmental Consultants, LLC informed the Service's West Virginia
Field Office (WVFO) that a lactating female Indiana bat had been
captured within the project area (in this document, "project area"
refers to the area encompassed by the Laxare East and Black Castle
Contour permit boundaries). Shortly thereafter, the bat was tracked to a
roost tree within the Indiana Creek watershed, in an area just outside
the Laxare East permit boundary. Additional mist netting, radio
telemetry, and emergence counts at roost trees continued through the
summer maternity period. On August 3, 2005, a conference call was held
with representatives from the Service, Corps, and the applicant and
their consultant to discuss the current status of the monitoring, action
on the permits, and plans for additional survey work. On October 6,
2005, the Corps sent a letter to the Service requesting that formal
consultation on the projects be reinitiated, based on the new
information that was available. In a letter to the Corps dated November
8, 2005, the Service concurred that reinitiation would be necessary and
listed additional information that would be required prior to
proceeding. The Corps provided some of the requested additional
information in a letter to the Service dated December 8, 2005. On
December 21, 2005, a conference call with the Service, the Corps, WVDEP,
and the applicant and their consultant was held to discuss the
outstanding additional information that was needed to reinitiate
consultation. On January 9, 2006, the applicant provided additional
information discussed during the conference call. A meeting between the
WVDEP, the Corps, the Service, and the applicant and their consultants
was held on January 17, 2006, to discuss the additional information and
the process for completing consultation. On January 18, 2006, the
Service received a letter from the WVDEP requesting that they be
included as a joint action agency for the reinitiation, consistent with
the 1996 Formal Section 7 Biological Opinion and Conference Report on
Surface Coal Mining and Reclamation Operations Under the Surface Mining
Control and Reclamation Act. Additional informal communications between
the parties has occurred throughout the remainder of the consultation
process. The draft supplemental BO was submitted to the Corps, the WVDEP
and the applicant on February 23, 2006. WVDEP provided comments on the
draft on February, 27, 2006. Comments from the applicant were received
on March 1, 2006, and the Corps' comments were received on March 8,
2006. A conference call to discuss comments was held on March 2, 2006.

**BIOLOGICAL OPINION**

Subsequent to completion of the 2005 BO, survey and monitoring work
required under the Reasonable and Prudent Measures and Terms and
Conditions led to the capture and tracking of additional Indiana bats.
These resulted in the discovery and confirmation of the primary roosting
areas for the maternity colony that was the focus of the 2005 BO. We did
not know the exact location or dynamic of the maternity colony when
writing the 2005 BO. We therefore made certain assumptions about the
roost trees known at that time because we had little information on the
colony's location. We now know its precise location. The confirmed
location of these roosts proved to be outside of the area that would be
directly affected by mining. Nighttime exit counts at the primary roosts
resulted in a maximum count of 73 adult and young bats. While the
Service had predicted that previous mining impacts in the area had
already impacted the maternity colony size by approximately 50%, the
colony size, as measured during the counts, is consistent with the size
the Service expected for a healthy maternity colony in this location.

In addition to the new information derived since the 2005 BO on the size
and location of the primary maternity colony site, the project has been
changed in a way that significantly modified the anticipated level of
impacts to the maternity colony. In order to reduce the amount of valley
fills and resulting destruction of forested and stream habitat, the
applicant eliminated three, and reduced one of the proposed valley
fills. In the 2005 BO, *all* previously known roost sites were to be
eliminated by these mining and valley fill activities, but now, due to
the discovery of the maternity colony's primary roost area and to the
reduction in valley fills, none of the known roost sites are located in
areas that are part of the proposed mining or valley fill operations.
The revisions in the proposed action, discovery of the colony in a more
favorable location, and verification of an apparently healthy maternity
colony, rather than one that was already believed to be in decline, lead
to significantly reduced impacts to the colony and, ultimately, a
determination of colony persistence, instead of the prior determination
of colony extirpation. These factors are discussed in detail in this
document.

**DESCRIPTION OF THE PROPOSED ACTION**

*\[The following information supplements the "Description of the
Proposed Action" in the 2005 BO by identifying changes since completion
of the 2005 BO.\]*

On August 23, 2005, the Corps issued a permit for the Black Castle
Contour mine. The Corps has not yet issued a permit for the Laxare East
mine.

**Action Area**

The action area described in the 2005 BO is expanded to include the
entire Indian Creek and Three Fork watersheds. These changes are the
result of the new information gathered about roosting and foraging areas
used by the Indiana bat maternity colony, which will be affected by
these projects. The Indian Creek Watershed contains 3,059 acres and
57,024 linear feet of streams (10.8 miles). The Three Forks Branch
Watershed contains 816 acres and 21,659 linear feet of streams (4.1
miles). The revised quantifiable portion of the action area consists of
a total of 9,606 acres and is shown in Figure 1a. \[Note: the action
area in the 2005 BO included a portion of these watersheds. Due to the
overlap, one cannot simply add 3,059 acres (for the Indian Creek
Watershed) and 816 acres (for the Three Forks Branch Watershed) to the
5,850-acre action area in the 2005 BO, to yield the revised quantifiable
portion of these watersheds. We have factored the area of overlap into
this revised calculation.\]

**Project Description**

Changes to the project description in the 2005 BO have been made that
reduce impacts to the Indiana bat. These project modifications were
developed in accordance with the Terms and Conditions of the 2005 BO and
the permitting requirements of the Clean Water Act. The individual
projects have been modified as shown in Figures 2a and 2b, Table 2a, and
as described below.

Table 2a. Overview of revised project impacts.

  ---------------------------- ------------ ------------------------ -----------
                               **Laxare**   **Black Castle Contour** **Total**

  Forest removal (total acres) 1420         521                      1941

  Stream impacts (linear ft)   31,961       18,787                   50,748

  \# of valley fills           7            9                        16

  \# of sediment ponds         10           6                        16
  ---------------------------- ------------ ------------------------ -----------

*Laxare East Project*

The applicant proposes to eliminate Valley Fill G and reduce the size of
Valley Fill C. As a result, the mineral removal area will be reduced by
60.1 acres and valley fill areas will be reduced by 53.5 acres, for a
total permit size reduction of 113.6 acres. In addition, the number of
sediment ponds has been reduced from 12 to 10. These modifications will
reduce impacts to jurisdictional waters by a total of 4,839 feet (0.91
mile), including 3,633 linear feet (0.69 mile) of intermittent streams
and 1,206 linear feet (0.23 mile) of ephemeral streams. The Laxare East
project will maintain a 250 foot buffer between all mining activities
and any currently known Indiana bat roost trees.

*Black Castle Contour Project*

The applicant and the Corps have modified this project by eliminating
Valley Fills 1 and 11. In addition, the number of sediment ponds has
been reduced from 8 to 6. The modifications reduce the total permit size
by 144 acres and reduce impacts to streams and jurisdictional waters by
a total of 7,693 feet (1.42 miles), including 7,411 linear feet (1.40
miles) of intermittent streams and 80 linear feet (0.02 mile) of
ephemeral streams. In addition, 202 linear feet (0.04 mile) of secondary
stream impacts will no longer occur due to the elimination of Valley
Fill 11 and its associated pond.. The stream mitigation described in the
2005 BO remains unchanged.

**STATUS OF THE SPECIES**

**Indiana Bat Population Status**

The 2005 BO characterized the population status of the endangered
Indiana bat as experiencing a serious, long term population decline
throughout most of its range, as a result of large-scale habitat loss
and degradation. The population status of the Indiana bat is updated as
described below to take into account new information obtained since
issuance of the 2005 BO. We have also clarified survey periods.

In general, attempts are made to survey each known occupied cave every
other year, and the data are combined for 2 years for reporting
purposes. By convention, survey periods typically are referred to by the
year of the last survey; hence the 2003 survey period represents data
for 2002 and 2003.

[Range-wide Hibernacula Censuses]{.underline}

The 2005 BO (page 14) presented a preliminary population estimate of
387,301 Indiana bats for the time frame erroneously designated as
"2003/2004;" this estimate was considered preliminary because quality
control of the data had not been completed. The final estimate for the
2003 survey period (covering 2002 and 2003) is 347,670 to 398,220
Indiana bats (Andrew King, personal communication 2006, Service). The
lower end of this range (347,670 bats) excludes the Pilot Knob Mine in
Missouri which is no longer safe to enter to conduct a standard winter
survey. Every few years, since about 2001, attempts have been made to
trap bats at the entrance to this mine and population estimates have
been derived by comparing Indiana bat capture rates to the previous
capture rates when the mine could be entered and surveyed. Due to
uncertainties associated with the reliability of this technique, we are
reporting a range of numbers for Indiana bats in this mine (give or take
50,550 Indiana bats since 2001).

The 2005 range-wide winter population count (covering 2004 and 2005) is
an estimated 406,824 to 457,374 Indiana bats (Andrew King, personal
communication 2006, Service). As discussed above, the lower end of this
range excludes the Pilot Knob Mine in Missouri. Because confidence
intervals are not available for 2005 and previous years, it is unknown
whether the 2 to 31% increase between the 2003 and the 2005 population
estimates is biologically or statistically significant. Potentially
significant sources of uncertainty with these estimates include
assumptions about status in caves or portions of caves that cannot be
surveyed in a particular year, and changes in counting methodologies
(e.g., change from visual estimates to use of digital photography).
Because of these uncertainties and the short time frames involved, we do
not consider these recent population estimates as representing a halting
or reversal of the species' documented long-term decline. Work is
currently underway to compare the results of previous and new
methodologies, with a goal of standardizing methodologies in the future
to allow for calculation of confidence intervals.

[Range-wide Maternity Colony Information]{.underline}

The 2005 BO presented estimates of the number of maternity colonies
range-wide. This information is updated in Table 6a below. The erroneous
"2003/2004" estimate of maternity colonies in Table 6 of the 2005 BO is
revised to reflect the revised population estimate for the 2003 survey
period, and estimates of maternity colonies for survey years 2001 and
2005 are added to the table, based on new information since completion
of the 2005 BO. While Table 6a shows a recent increase in the estimated
number maternity colonies, because of the data uncertainties and the
short time frames involved, as explained above, we do not consider these
recent population estimates as representing a halting or reversal of the
species' documented long-term decline.

**Table 6a. Estimated number of Indiana bat maternity colonies
range-wide.** (Dashes indicate that data are not available.)

+--------+----------+---------+---------+-----------+----------------+
| **     | **Hib    | **      | *       | **Number  | **Percent of   |
| Year** | ernating | Percent | *Number | of known  | known          |
|        | Popu     | Change  | of      | maternity | maternity**    |
|        | lation** | (       | Ma      | a         |                |
|        |          | between | ternity | reas^2^** | **Colonies**   |
|        |          | rows)** | Coloni  |           |                |
|        |          |         | es^1^** |           |                |
+--------+----------+---------+---------+-----------+----------------+
| 196    | 883,300  |         | 5,500   | \-        | \-             |
| 0/1970 |          |         |         |           |                |
+--------+----------+---------+---------+-----------+----------------+
| \~1980 | 678,750  | -23     | 4,200   | \-        | \-             |
+--------+----------+---------+---------+-----------+----------------+
| \~1990 | 473,550  | -31     | 2,900   | \-        | \-             |
+--------+----------+---------+---------+-----------+----------------+
| 2001   | 381,156  | -20     | 2,400   | \-        | \-             |
+--------+----------+---------+---------+-----------+----------------+
| 2003   | 347,67   | -9 to   | 2,200-  | \~225-250 | \~10           |
|        | 0-398,22 | +4      | 2,500   |           |                |
|        | 0^3,\ 4^ |         |         |           |                |
+--------+----------+---------+---------+-----------+----------------+
| 2005   | 40       | +2 to   | 2,50    | \-        | \-             |
|        | 6,824-45 | +31     | 0-2,900 |           |                |
|        | 7,374^4^ |         |         |           |                |
+--------+----------+---------+---------+-----------+----------------+

^1^ Total rounded to the nearest 100. Estimates of the number of
maternity colonies range-wide (Table 6a) were developed based on the
following assumptions: 1) the known hibernating population is the source
of the entire summer population; 2) there is a 50:50 sex ratio (Humphrey
et al. 1977); 3) average maternity colony size of 80 adult females
(Whitaker and Brack 2002); and 4) the trend in decline of the total
number of maternity colonies follows that of the hibernating population.

^2^ This is a rough estimate of the number of areas where reproductive
females have been captured during the maternity season.

^3^ This range replaces the number presented in the 2005 BO of 387,301.

^4^ The larger number assumes the population at Pilot Knob Mine in
Missouri has remained stable at 50,550 Indiana bats since the last
standard winter survey in approximately 2001.

[Status of Indiana Bat Habitat in the Appalachian
Coalfields]{.underline}

The 2005 BO (pages 17-18) referred to the Draft Programmatic
Environmental Impact Statement (EIS) on mining/valley fills in
Appalachia (U.S. Environmental Protection Agency 2003). The Final
Environmental Impact Statement was issued in 2005 (U.S. Environmental
Protection Agency 2005). The summary information we present here is
unchanged from the draft EIS. The EIS study covered 12.2 million acres,
including coal fields of Appalachia in 4 states. The study anticipated
significant impacts to aquatic and terrestrial habitats as a result of
mining activities. Considering existing and projected (10-year) future
impacts, the study estimated roughly 2,400 miles of streams and 2,200
square miles of land or 11% of forested habitat in the Appalachian
coalfields region would be adversely impacted. When adding past,
present, and future terrestrial disturbance, the Final EIS estimated a
1.4 million acre total loss of forest cover in the multiple state study
area. In West Virginia, the study estimated 7,591 acres of direct
impacts to streams from mineral extraction and valley fills. This number
is underestimated because indirect impacts to streams, such as those
that would occur downstream from filled or mined-out stream sections,
were not evaluated.

**Indiana Bat Status in West Virginia**

[Hibernating Population]{.underline}

The 2005 BO (page 18) stated that the hibernating population of Indiana
bats in West Virginia appears to be increasing in recent years. This
appears to continue to be the case. The counting methodology has been
consistent (density estimates extrapolated from photos of bat clusters
on cave walls). During the 2005 survey season (covering winter 2004 and
2005), approximately 11,890 (93%) of West Virginia's 12,667 known
hibernating Indiana bats wintered in Hellhole Cave (West Virginia
Division of Natural Resources 2006). The number of Indiana bats counted
at Hellhole during the winter has increased roughly 39% from the 2001
survey season (8,566 bats) to the 2005 season (11,890 bats). This
increase in numbers continues to exceed hypothetical population growth
rates, further suggesting that bats immigrating from other hibernacula
and/or their progeny may be a substantial contributing factor. Recent
data from three counties surrounding the action area (Greenbrier,
Mercer, and Monroe counties) continue to suggest a relatively stable
population of roughly 70-95 Indiana bats in the local area over the last
5 years (Table 7a) (West Virginia Division of Natural Resources 2005).
In this table, which includes historical data, the year column deviates
from the standard naming convention and does not refer to the standard
2-year survey seasons now used; rather, the year column represents the
year during which the individual named cave was surveyed (coinciding
with the end of the winter season). For example, in the last row, the
year 2004 represents data collected during the winter beginning in 2003
and ending in 2004. Data for these caves in 2005 is not yet available.

**Table 7a. Populations of hibernating Indiana bats in West Virginia
closest to the action area.**[^1]

<table style="width:100%;">
<colgroup>
<col style="width: 6%" />
<col style="width: 5%" />
<col style="width: 8%" />
<col style="width: 10%" />
<col style="width: 8%" />
<col style="width: 8%" />
<col style="width: 8%" />
<col style="width: 11%" />
<col style="width: 9%" />
<col style="width: 12%" />
<col style="width: 10%" />
</colgroup>
<tbody>
<tr class="odd">
<td><em> </em></td>
<td colspan="6"><strong>Greenbrier County</strong></td>
<td><strong>Mercer County</strong></td>
<td colspan="3"><strong>Monroe County</strong></td>
</tr>
<tr class="even">
<td> </td>
<td>Bob Gee Cave</td>
<td>General Davis Cave</td>
<td><p>Higginbot-hams</p>
<p>Cave system</p></td>
<td><p>McFerrin</p>
<p>Cave</p></td>
<td><p>Organ</p>
<p>Cave</p></td>
<td><p>Piercy's</p>
<p>Cave</p></td>
<td><p>Honacker</p>
<p>Cave</p></td>
<td><p>Argobrites</p>
<p>Cave</p></td>
<td>Greenville Saltpeter Cave</td>
<td>Patton Cave</td>
</tr>
<tr class="odd">
<td>1952</td>
<td> </td>
<td> </td>
<td> </td>
<td>39</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td>300+</td>
<td>Bats present ( #s not recorded</td>
</tr>
<tr class="even">
<td>1963</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td>8</td>
</tr>
<tr class="odd">
<td>1976</td>
<td>8</td>
<td> </td>
<td>1</td>
<td>0</td>
<td> </td>
<td> </td>
<td> </td>
<td>0</td>
<td> </td>
<td> </td>
</tr>
<tr class="even">
<td>1981</td>
<td>6</td>
<td><p>6, 10</p>
<p>(2 surveys)</p></td>
<td> </td>
<td>2</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td>2</td>
<td>3</td>
</tr>
<tr class="odd">
<td>1984</td>
<td>9</td>
<td> </td>
<td> </td>
<td>0</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
</tr>
<tr class="even">
<td>1986</td>
<td> </td>
<td>2</td>
<td> </td>
<td> </td>
<td> </td>
<td><p>11, 47</p>
<p>(2 surveys)</p></td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
</tr>
<tr class="odd">
<td>1987</td>
<td>6</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
</tr>
<tr class="even">
<td>1989</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td>11</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
</tr>
<tr class="odd">
<td>1990</td>
<td>3</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td>24</td>
<td> </td>
<td> </td>
<td>3</td>
<td> </td>
</tr>
<tr class="even">
<td>1991</td>
<td> </td>
<td>8</td>
<td> </td>
<td> </td>
<td>12</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
</tr>
<tr class="odd">
<td>1992</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td>9</td>
<td> </td>
<td> </td>
<td> </td>
<td>2</td>
<td> </td>
</tr>
<tr class="even">
<td>1993</td>
<td> </td>
<td>7</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
</tr>
<tr class="odd">
<td>1994</td>
<td> </td>
<td>7</td>
<td> </td>
<td> </td>
<td> </td>
<td>26</td>
<td> </td>
<td> </td>
<td>1</td>
<td> </td>
</tr>
<tr class="even">
<td>1998</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td>5</td>
<td>50</td>
<td>20</td>
<td> </td>
<td>3</td>
<td>17</td>
</tr>
<tr class="odd">
<td>1999</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td>40</td>
<td> </td>
<td> </td>
<td> </td>
</tr>
<tr class="even">
<td>2000</td>
<td> </td>
<td>6</td>
<td> </td>
<td> </td>
<td>3</td>
<td>54</td>
<td>16</td>
<td> </td>
<td>4</td>
<td>8</td>
</tr>
<tr class="odd">
<td>2001</td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
<td> </td>
</tr>
<tr class="even">
<td>2002</td>
<td>0</td>
<td>5</td>
<td></td>
<td></td>
<td>11</td>
<td>40</td>
<td></td>
<td></td>
<td>6</td>
<td>10</td>
</tr>
<tr class="odd">
<td>2004</td>
<td></td>
<td>3</td>
<td> </td>
<td> </td>
<td>14</td>
<td>35</td>
<td>31 </td>
<td> </td>
<td>3</td>
<td>8</td>
</tr>
</tbody>
</table>

[Maternity Activity]{.underline}

The 2005 BO presented information on maternity colony activity in West
Virginia through 2003 and partial information for 2004. At that time,
two maternity colony sites were known from West Virginia, the maternity
colony on the project site in Boone County and a maternity colony in
Tucker County. Since then, we have received final reports on surveys
conducted during the summer of 2004 and spring of 2005.

Since completion of the 2005 BO, a third maternity colony was
discovered. This colony, also in Boone County, consists of at least 49
bats and is located near Kanawha State Forest, approximately 10 miles
away from the other Boone County maternity site.

In addition, during summer 2004, three male Indiana bats were captured
on the Monongahela National Forest in Pendleton County. These bats were
tracked to a roost tree and subsequent emergence counts on that tree
revealed 23 bats. Although maternity activity (through the presence of
female Indiana bats) was not confirmed at this site, data suggest that
this site may also support a maternity colony.

**Indiana Bat Status near the Action Area**

[Maternity Activity]{.underline}

The 2005 BO identified the three reproductively active female Indiana
bats caught within the action area as the only bats that had been
captured in Boone County, and as representing the only maternity colony
that had been discovered in southwestern West Virginia. This assessment
is updated to incorporate the information regarding Indiana bats within
the action area (see ENVIRONMENTAL BASELINE/2005 Survey Efforts section
of this document below) and the additional maternity colony discovered
in Boone County near Kanawha State Forest (see Indiana Bat Status in
West Virginia/Maternity Activity section of this document above).

**INDIANA BAT LIFE HISTORY**

*\[The life history of the Indiana bat in the 2005 BO is updated below
to take into account new information obtained since issuance of the 2005
BO.\]*

**Indiana Bat Status Summary**

The 2005 BO presented an analysis indicating a precarious outlook for
the Indiana bat. This analysis included a population projection using
observed rates of decline through 2000/2001 (Diagram 1 in the 2005 BO),
and acknowledged the small potential increase in the population estimate
based on preliminary data for 2003 and 2004. We have not revised the
analysis to take into account population estimates after 2001, including
the final population estimate for the 2003 survey season and the
population estimate for the 2005 survey season, which have since become
available. Although the estimates from 2003 and 2005 indicate a
potential increase in the population, incorporating estimates after 2001
would not substantially change the results of the analysis since it was
based on long term average rates of change and intended to show the
potential consequences to the population if the rates of decline
experienced in the past were to continue into the future. The analysis
was not intended to assess the potential consequences to the population
resulting from a change from a declining population to an increasing
population or from a sustained increase. Whether the recent increase in
population estimates reflects a change in the long term decline of the
species cannot be determined because of data uncertainties and the short
time frames involved, as explained previously in this document.

**ENVIRONMENTAL BASELINE**

*\[The following information updates the Environmental Baseline section
of the 2005 BO by describing new information obtained since completion
of the 2005 BO.\]*

**Indiana Bat Survey Efforts**

*2005 Survey Efforts*

The following discussion is based primarily on information contained in
the Apogee Environmental Consultants (2006) report completed in
accordance with the Terms and Conditions of Reasonable and Prudent
Measure 2 of the 2005 BO (pages 107-108), which the Service has
independently reviewed. To evaluate the presence/absence of Indiana bats
in the project area, 18 sites were selected to be surveyed in 2005.
Survey efforts were conducted during three separate time periods,
including Indiana bat pregnancy (May 15 -- June 15), lactation (June 15
-- July 15), and post-lactation/juvenile volancy (July 15 -- August 15).
A total of 216 net nights of effort were completed resulting in the
capture of 242 bats of 9 species. In order of decreasing abundance, the
species captured were: big brown bat (*Eptesicus fuscus*), northern bat
(*Myotis septentrionalis*), eastern pipistrelle (*Pipistrellus
subflavus*), eastern red bat (*Lasiurus borealis*), silver-haired bat
(*Lasionycteris noctivagans*), little brown bat (*Myotis lucifugus*),
eastern small-footed bat (*Myotis leibii*), evening bat (*Nycticieus
humeralis*), and Indiana bat.

A lactating female Indiana bat was captured in the project area on July
2, 2005. The bat was captured near a tributary of Orchard Branch at the
same site as bat #3352 from the 2003 survey season. A radio-transmitter
was attached to the bat and subsequent roost tree and foraging data were
collected. Over the 11-day tracking period, the female Indiana bat used
two different roosts, both of which were dead pine trees with abundant
exfoliating bark (\> 25% bole surface area) located within the upper
portions of the Indian Creek drainage. At both roosts, numerous bats,
including the radio tagged bat, were roosting underneath peeling bark on
the main tree trunks. Roost tree #1-05 was a large pitch pine (*Pinus
rigida*) and was used by the bat for 8 days (two periods of 4
consecutive days). Roost tree #2-05 was a large shortleaf pine (*P.
echinata*). This roost was only used for 2 consecutive days, and on the
following day the bat returned to roost tree #1-05.

Both trees were canopy-dominant trees located within an interior forest
and were slightly larger than the surrounding forest in regard to
diameter-at-breast height (dbh) and canopy height. Average dbh of the
roost trees was15.9+2.6 inches, and average height was 55.1 + 7.2 feet.
The habitat surrounding both roosts had recently been burned (1-3
years). Consequently, the majorities of pine trees within the plots,
including the roost, were dead and possessed fire scars at the base of
the bole. The death of trees in close proximity to one another has
created large canopy gaps around the roost which provides ample solar
exposure to the roosting sites throughout the day.

Emergence counts were carried out throughout the study. Simultaneous
emergence counts were only accomplished on two evenings (July 11 and
12), but no bats emerged from roost tree #1-05 on the second evening.
The number of bats emerging from tree 1-05 increased over time, with 23
bats emerging on July 6, and 73 emerging on July 14. A maximum number of
51 bats emerged from tree 2-05 on July 9. Counts conducted in mid-July
most likely represent some combination of adults and newly volant young.
Emergence counts on roost trees used in 2004 (trees \# 449, 459, 460)
near the western portion of the Laxare project were also conducted.
Indiana bats were documented using trees 449 and 459; however, no more
than one individual was counted leaving each tree. A simultaneous count
conducted on July 17, resulted in one bat leaving each of these two
trees.

Both new roost trees identified during the 2005 surveys were
considerably different than those located in previous years within the
vicinity of the proposed mine site (Apogee Environmental Consultants
2003, 2004a). First, these trees were considerably larger (average dbh
15.9 inches; average height 55.1 feet) and housed a larger number of
bats (range 15-73) than in previous years. The average dbh and height
for the seven roost trees previously found within the project area were
6.9 inches and 30.2 feet, respectfully. Secondly, the largest number of
bats observed exiting one of the earlier trees was four. According to
the criteria used by Callahan et al. (1997) and later modified by
Britzke et al. (2003) for periphery populations of Indiana bats in the
south, all seven previously documented roost trees would be considered
alternate roosts. In contrast, both trees located during the 2005 study
could be ranked as primary roost trees using either classification
scheme (Callahan et al. 1997, Britzke et al. 2003).

Both new roosts were located just off the ridge tops on mid- to upper
slopes (1,345-1,499 feet). In addition, roost trees were positioned in
areas of excessively steep terrain (11-32%), with varying aspects.
Distance between the two roosts was 0.42 mile, and each day roost was
1.6 miles (roost tree #1-05) and 1.7 miles (roost tree #2-05) from the
core foraging range. The two roosts were 1.2-3.0 miles from other
Indiana bat roosting areas located within the same project area in
previous years. The capture site was located 1.5-1.6 miles from the two
roost trees. These two roost trees are located approximately 1,500 feet
from the eastern edge of the Laxare East permit, and are within the
large block of intact habitat to the northeast of the projects that was
identified within the 2005 BO as being a likely area to support, and
potentially maintain, an Indiana bat maternity colony. In the 2005 BO,
we suggested that bats in the project area would most likely be
displaced into adjacent habitats, specifically the large contiguous
forest located to the northeast of the Laxare East permit (Indian
Creek); the new information confirms that the colony is already
established in this area.

The home range and foraging area was determined after the captured
lactating female Indiana bat was tracked from July 4-15, 2005. The
home-range size (Minimum Convex Polygon, MCP) for the bat was 1,226.3
acres. The bat's foraging area was located approximately 1.7 miles
southwest from the roost trees. This bat used the same foraging area
every night. The major foraging area for this bat, where it spent 50% of
its time, was 15.1 acres; while the area where it spent 95% of its time
was 97.1 acres. The range in elevation of the major foraging area was
1,332-1,601 feet and the aspect was southeast. The slope of the major
foraging area ranged from 8 to 41%. The foraging area for this bat was
almost exclusively located in a steep ravine containing a headwater
stream that is a tributary of Sandlick Creek. The top of the ravine
consisted of an area that had been harvested by "high-grading" (cutting
the larger trees within a specified size range) adjacent to an area that
had not been recently harvested. The area lower in the ravine was very
open, with high canopy and open understory, which is conducive habitat
for a volant animal. The commuting area seemed to be a linear path from
the roost trees to the foraging area and the bat did not seem to be
following any particular ridge tops or ravines for travel toward the
foraging area. Both 2nd and 3rd order streams with well developed
riparian zones are located within the foraging range of the tracked bat
(range 0.11-1.2 miles). Occasionally the bat was observed within the
riparian zones of both Sandlick Creek and Indian Creek (both 2nd order
streams), however no significant amount of time was spent within these
areas. Heavy fog and cool temperatures that settles in the valleys
associated with mountain streams may explain why the bat consistently
foraged higher up the slope. In addition, the ravine also provides
shelter from strong winds typical of the ridge tops. Thus the foraging
ravine may provide ideal conditions for both the bat and its insect
prey.

Located within the home range of this bat were three additional ravines
with similar attributes as the main foraging ravine. Occasionally the
bat would spend small amounts of time within one of these ravines but
none were used extensively. This study of foraging was conducted on a
single individual. In studies of multiple individuals in Pennsylvania,
foraging areas of individual Indiana bats often did not overlap
(Butchkoski and Hassinger 2002), therefore it is likely that the other
headwater and first order streams within the action area are used by
other individuals within the maternity colony.

**Factors Affecting the Indiana Bat Habitat within the Action Area**

*Mining Activities Conducted in the Action Area in 2005 (new section)*

A total of 293 acres of land, including 198 acres on the Laxare East
project area, and 95 acres on the Black Castle Contour project area, was
cleared of trees during the November 15, 2004 -- March 31, 2005 seasonal
clearing period. An additional 192 acres on the Laxare East project
area, and 100 acres on the Black Castle Contour project area have been
or are anticipated to be cleared during the November 15, 2005 -- March
31, 2006 seasonal clearing period. These activities were conducted on
the western portion of the Laxare East project areas in and around
valley fills A, B, and C; and in the head of George's Branch near Valley
Fills 7 and 8 and in an unnamed tributary near Valley Fill 6 within the
Black Castle Contour project area. Excavation activities were initiated
in these cleared areas. Material excavated in the Laxare East permit
area was hauled to an adjacent permitted off-site disposal area.

**Indiana Bat Population within the Action Area**

*Maternity Activity*

The 2005 BO presumed the presence of at least one maternity colony based
on the capture of three female bats in reproductive condition. Since
issuance of the 2005 BO, a maternity colony with a minimum of 73 adult
and juvenile bats has been documented using the project area. Nine roost
trees have been identified. As discussed in the 2005 BO, exit counts
should be considered to represent the minimum number of individual
Indiana bats that comprise a maternity colony, particularly since all
known roost trees were not surveyed simultaneously. Considering these
factors, the data from 2005 surveys appear to be consistent with an
"average size" maternity colony. Whitaker and Brack (2002) estimated
that 80 bats was an average maternity colony size. In a separate
analysis, Kurta (2004) differentiated between counts conducted pre and
post volancy and estimated that an average maternity colony size was
60-70 adult bats or 119 bats when including both adults and volant
young.

The two roost areas surveyed during 2005 are approximately 3 miles
apart. This could potentially indicate that more than one colony is
present. However, all Indiana bats captured to date have been captured
along Sandlick Creek, and the bat tracked to the Indian Creek roost area
was captured in the same location as one of the bats initially captured
during the 2003 surveys. Furthermore, the distances between these roosts
are within the range of distances between colonies' roost trees
previously reported (see page 41 of the 2005 BO). As noted above, all
the roosts identified during the 2003 and 2004 surveys were
characteristic of alternate roosts, whereas the trees identified during
2005 are characteristic of primary roosts. We therefore conclude that
the capture of four reproductively active females within the action area
is most likely indicative of the presence of one maternity colony, and
that this colony is most likely consistent with an average sized
maternity colony of from 60 to 80 adult bats. Based on this information,
we estimate the colony size, for purposes of analysis, as approximately
75 adult female bats. (Additional information regarding the estimated
size of the colony can be found in the administrative record -- March 6,
2006, Memo to file).

**Summary of Indiana Bat Status in the Action Area**

In the 2005 BO, the Service stated it believed that maternity activity
in the action area was believed to have already been adversely affected
by the removal of potential foraging and roosting habitat, including the
removal of established roost trees, and assumed that previous mining and
logging activities had severely reduced the viability of maternity
activity, rendering the existing population to a single remnant
maternity colony consisting of 20-40 female bats and their young. New
information reveals otherwise. The Service now believes that an
average-sized maternity colony of approximately 75 adult female bats
uses the action area. Because the colony's primary roosts were located
outside the project area near the headwaters of Indian Creek and Three
Forks Branch, watersheds which are relatively un-impacted and in which
no mining is proposed as part of this project, the Service now believes
that this colony has not been pushed into decline and toward extirpation
by previous mining and logging activities.

**Conservation Needs of the Indiana Bat in the Action Area**

The 2005 BO stated that maintenance of adequate roosting and foraging
habitat in the upper portion of the Sandlick Creek watershed is critical
to maintain the possibility of persistence of Indiana bat maternity
activity in this general area. Based on the new information indicating
that the colony is an averaged-sized colony with its primary roosts
outside the project area, the Service now believes that the maternity
colony likely uses substantial areas outside the project area for
foraging and roosting in addition to those areas within the project
area. Consequently, the Service believes that while loss of some
foraging habitat and secondary roosts within the project area would
affect some bats, the project would not cause extirpation of the
maternity colony. In addition, the project has been changed to avoid
impacts to the areas of the two first-discovered roost areas. Therefore,
the priority conservation needs of the Indiana bat in the action area
beyond those achieved by the project changes already identified would
consist of increasing the likelihood of persistence of the maternity
colony through protection from future non-project impacts.

**EFFECTS OF THE ACTION**

The 2005 BO described the context for the evaluation of the effects of
the proposed action as a continuing population decline of the Indiana
bat. The 2005 BO described the decline in general terms as the result of
mortality exceeding recruitment, and identified the vulnerabilities of
the species arising from its life cycle and low fecundity.

Although it is well documented that the species has experienced a
long-term, significant decline from historical levels, recent census
information appears to indicate an increase in the population. However,
as described in the ENVIRONMENTAL BASELINE section of this document,
because of data uncertainties and the short time frames involved, we do
not consider these recent population estimates as representing a halting
or reversal of the species' documented long-term decline.

The 2005 BO also describes the context of the evaluation of effects of
the proposed action in terms of the loss of additional habitat of a
maternity colony already significantly impacted by previous mining and
logging activities. As described in the ENVIRONMENTAL BASELINE section
of this document, the Service has since received new information
indicating that the maternity colony is of an average size of
approximately 75 adult female bats and that the colony's primary roosts
are located outside the project area near the headwaters of Indian Creek
and Three Forks Branch. Based on this information, the Service now
believes that the maternity colony has not been pushed into decline and
toward extirpation by previous mining and logging activities.

The EFFECTS OF THE PROPOSED ACTION section of the 2005 BO is revised
here to account for the new information concerning the size of the
maternity colony and location of its primary roosts, and the project
modifications proposed by the applicant. This new information results in
a reduction of both the amount and severity of the impacts of the
proposed action to the maternity colony.

**Home Range Analysis**

In the 2005 BO, the Service predicted the effects of the action without
knowledge of the precise location of the colony's primary roost area. In
assessing the effects of the action, the 2005 BO (Analysis of Adjacent
Habitat section, pages 82 to 86) analyzed whether sufficient suitable
habitat would remain to support a colony in the vicinity of each
then-known roost area (western and eastern). This analysis calculated
the forest acreage and stream miles that would not be impacted within a
2-mile radius of each roost. However, with the discovery of the
maternity colony's primary roost area, the current home range of the
colony can be estimated. With an estimated current home range of the
colony, the portion of the project impacting the colony can be
estimated.

Based on the available information, we believe it is reasonable to
assume that the maternity colony's home range is approximately centered
on the primary roost location in the Indian Creek and Three Forks Branch
watersheds. The location of the primary roost site in this area, along
with information suggesting that the vast majority of the general area
is forested, indicate that this general area may be suitable Indiana bat
habitat. As explained in the ENVIRONMENTAL BASELINE section of the 2005
BO, female Indiana bats typically have foraging ranges less than 2 miles
from the primary roost site. For all bats studied to date, the distances
between foraging areas and roost trees, and between capture locations
and roost trees, have been approximately 1.5 to 1.7 miles. The maximum
distance between the colonies' roost trees is approximately 3.0 miles.
Of the four bats captured, 2 were captured about 2.4 miles from the
primary roost tree. The other two bats, including the bat captured this
year were captured within 2 miles (1.5 miles) of the primary roost.
Therefore, we presume that the individual home ranges of most, but not
all, of the colony members will be within 2 miles of the primary roosts.

Maternity colonies are known to use a large number of roost trees,
including many lesser used alternate trees. Obviously, not all of these
trees could be located at the center point of the colonies' home range.
Also, it would not be reasonable to expect that a colony's primary roost
area would always be located at the center point of the colony's home
range, or that the home range would be a regularly shaped circle.
Studies of other maternity colonies have shown that over a 3-year
period, the focal point of a colony's roosting activity shifted almost 2
miles to another location within the bats' established home range.
Despite this change in roosting activity, the bats continued to use the
same foraging areas and commuting corridors (Kurta et al 2002).
Therefore, it is difficult to predict the exact shape of a colony's home
range and the location of its primary roost area within that home range.
However, in this case, with knowledge of the primary roost area, and in
the absence of information suggesting that the colony favors habitat in
one direction from the primary roost area disproportionately over other
directions, we believe a 2-mile radius circle centered on the primary
roost area provides a reasonable estimate of the colony's current home
range.

The area encompassed by a 2-mile radius circle centered on the primary
roost site is approximately 8,040 acres (Figure 4a). However, some of
the Indiana bat captures and documented roost sites within the Sandlick
Creek drainage fall outside this 2-mile radius circle. Thus, the colony
home range estimate is expanded to include an estimated 729 acres of
habitat in the Sandlick Creek drainage encompassing the Indiana bat
captures and roost sites in that area (see area in Figure 4a identified
as the "nub" in the legend of the map). Therefore, for the purpose of
assessing the magnitude of the impact of both mines on the maternity
colony, the total current home range for the colony is estimated to be
approximately 8,769 acres (8,040 + 729).

While other bats may have established home ranges that extend beyond 2
miles of the primary roost, we have no specific information to determine
the presence or absence of additional individual bat home ranges beyond
2 miles, other than negative surveys in other parts of the project area.
Expanding the size of the 2-mile radius circle to include other bats (in
addition to those identified using the Sandlick Creek drainage) that may
possibly be using areas beyond 2 miles of the primary roost would not
significantly affect our analysis because, while a greater portion of
the project would be captured by a larger circle, the percentage of the
circle impacted by the project would not change significantly (a larger
portion of the project area within a larger circle would be a similar
percentage as a smaller portion of the project area within a smaller
circle).

Approximately half of the Laxare East permit area is located within,
while most of the Black Castle permit area falls outside of, the
estimated home range of the colony. Thus, the likely concentration of
the majority of individual bat home ranges is now anticipated to exist
outside the mining and valley fill impact zone. Also, the impact to the
colony's home range will be lessened by the elimination or reduction of
each of the 4 previously proposed valley fills containing known roosting
habitat; within the 729-acre area of the Sandlick Creek drainage, 258
acres was previously proposed to be impacted, while under the proposed
project modifications these impacts will be avoided. Using these
figures, the proposed Laxare East and Black Castle project footprints
will impact approximately 912 acres (704 acres within 2-miles of the
primary roost area plus an estimated 208 acres within the Sandlick Creek
drainage) of the estimated current home range of the colony. This is
approximately 10% of the estimated current home range of the colony (912
acres/8,769 acres). Based on this analysis, we predict that
substantially less of the colony's home range will be impacted by the
proposed project footprint than previously predicted. This area of
impact represents the foraging habitat of approximately 8 bats (10% of
the approximately 75 estimated adult female bats within the colony).

Information from studies of other colonies indicates that individual
bats have home ranges of from about 100 acres to over 200 acres
(Butchkoski and Hassinger 2002). As noted in the ENVIRONMENTAL BASELINE
section of this document, the major foraging area for a lactating female
Indiana bat tracked within the project area was 97.1 acres, where it
spent 95% of its time. If bats in this colony have individual home
ranges of about 100 acres, the lower end of the observed range for the
species, the portion of the project within the estimated home range of
this colony (912 acres) would represent the total of individual home
ranges of about 9 bats (912 acres/100 acres per bat = 9.12 bats). This
information suggests that an estimate of 8 - 9 bats impacted by the
project footprint is reasonable.

While the above analysis estimates the portion of the likely current
home range of the colony impacted by the project footprint, additional
areas of the home range may be impacted by fragmentation, noise and
vibration, and indirect stream impairment. These additional effects are
discussed in this section of the document below.

**Effects of Proposed Project Modifications**

As described in the DESCRIPTION OF THE PROPOSED ACTION section of this
document, the applicant has either eliminated or reduced the size of
each of four of the originally proposed valley fills. These project
modifications have reduced project impacts by a total of 258 acres of
forested habitat and 9,294 linear feet (1.75 miles) of streams, as
detailed in Table A.

**Table A: Effects of Proposed Project Modifications**

  ------------------- ----------- --------- --------------- ----------- ---------- ---------------
                      **Forest                              **Stream               
                      Removal                               Impacts                
                      (acres)**                             (feet)**               

                      Original    Revised   **Reduction**   Original    Revised    **Reduction**

  Laxare East         1534        1420      **114**         36,745      31,961     **4,784**

  Black Castle        665         521       **144**         26,480^1^   18,787     **7,693**
  Contour                                                                          

  *Total*             *2199*      *1941*    ***258***       *63,072*    *50,748*   ***12,477***
  ------------------- ----------- --------- --------------- ----------- ---------- ---------------

*1: The February 2005 BO incorrectly cited this figure as 26,437 feet*.

These project modifications were developed in order to modify the
placement of fill in waters of the United States and reduce impacts to
known Indiana bat foraging and roosting areas, consistent with
Reasonable and Prudent Measure 3.0 of the 2005 BO. These measures should
effectively and substantially reduce the anticipated impacts of the
proposed action.

**Project Impacts to Forested Habitats**

The current project will remove a total of 1,941 acres of forested
habitat; a 258-acre (or 12%) reduction from that previously proposed.
However, the above forest acreage figure does not provide a reasonable
estimate of the impacts to the colony. Based on the results of our home
range analysis, we expect that approximately 10% of the colony's home
range to be impacted by the project footprint. This area of impact
represents the foraging habitat of approximately 9 bats.

Although we estimate that 10% of the colony's home range, and therefore
10% or 9 of the adult bats within the colony, will be impacted by the
project footprint directly through forest removal, bats continuing to
use habitats adjacent to these areas may experience other impacts from
habitat fragmentation and noise and vibration. The 2005 BO (page 65)
included descriptions of two separate areas of forested habitat that
would remain after project construction: 370 acres along the mainstem of
Sandlick Creek; and 280 acres in between Mudlick Fork and the headwater
tributaries of Sandlick Creek. It was originally anticipated that these
areas would be fragmented from each other and would become successively
less suitable to support Indiana bats as the mining progressed through
the watershed. However, as a result of project modifications, these two
areas will remain contiguous with each other and with the 258 acres of
retained habitat previously proposed for Valley Fills 1, 11, G and C.
Thus, one large block of approximately 908 acres of contiguous forested
riparian habitat will remain along Sandlick Creek, its tributaries and
headwaters. The roosting areas identified during 2003 and 2004, and all
four Indiana bat capture sites, are located within this area. Therefore,
we know that Indiana bats are already using this area for roosting and
commuting. However, because this riparian forested area will now be much
larger and wider than before, the previously predicted impacts will be
greatly reduced. Indiana bats seem to use forested stream corridors as
preferred foraging and commuting areas (Hobson 1993; Humphrey et al.
1977; LaVal and LaVal 1980; Butchkoski and Hassinger 2002;
3D/International, Environmental Group 1995). Indiana bats have also been
known to continue to use even fragmented riparian corridors (Clark et al
1987; Humphrey et al 1977). Given these factors and the species'
documented site fidelity (see "Life History" section of the 2005 BO,
particularly pages 25-26 and 35-37), is it likely that Indiana bats will
continue to use this area for commuting and roosting.

Impacts from stream impairment are addressed separately below in the
"Project Impacts to Aquatic Habitat" section of this document.

In summary, the current project will remove a total of 1,941 acres of
forested habitat. However, our home range analysis indicates that
approximately 10% of the colony's home range (the foraging habitat of 9
bats) will likely be impacted by the project footprint. One large block
of approximately 908 acres of contiguous forested riparian habitat along
Sandlick Creek, its tributaries and headwaters, which contains the
roosting areas identified during 2003 and 2004, and all four Indiana bat
capture sites, was previously predicted to be impacted; however, as a
result of project modifications, it is likely that Indiana bats will
continue to use this area for commuting and roosting although
experiencing an unquantifiable level of impact from noise and vibration.
Also, the colony's home range likely currently includes a large portion
of the 3,875 acres of primarily forested habitat in the Indian Creek and
Three Forks Branch watersheds where the colony's primary roosts were
discovered which is outside the project area and will not be impacted by
the project.

**Project Impacts to Aquatic Habitats**

As described in the 2005 BO, streams and their associated forested
riparian areas are important areas for bat foraging and prey production.
The proposed project will impact aquatic habitat through loss from
mining and filling and through impairment. The current project will
result in the loss of a total of 50,748 linear feet of stream (9.6
miles). This represents a 12,477-foot (2.4 miles or 20%) reduction from
that previously proposed. However, these stream mileage figures do not
provide a reasonable estimate of the impacts to the colony from stream
loss. Project modifications, elimination or reduction of each of four
valley fills, were targeted on stream corridors that are known to
support Indiana bat roosting and commuting habitat. Therefore, some of
the aquatic and riparian areas key to supporting the maternity colony
will now be retained. In addition, the Indian Creek and Three Forks
Branch watersheds have now been added to the action area, based on the
documented use of these areas by Indiana bats. Based on the results of
our home range analysis, we estimate that the project will cause the
loss of 5.0 miles of streams within the estimated current home range of
the colony (3.6 within the 2-mile radius of the primary roost area plus
approximately 1.4 miles within the Sandlick Creek drainage).

Areas within the estimated colony's current home range will also be
impacted by indirect stream impairment. Stream reaches downstream of
proposed fills will be subject to the effects described under "Indirect
Stream Impairment" in the 2005 BO (pages 68-71) that will degrade
foraging habitat and reduce the availability of prey for the Indiana
bat. As a result, it is still anticipated that some bats will suffer
"harm" through malnutrition; increased energy expenditures; decreased
fitness; increased susceptibility to failed pregnancies; and delayed
volancy and maturation of pups. However, the impacts are expected to be
reduced as a result of the project modifications that reduce stream
fills and the new information indicating that much of the home range of
the colony is outside of the project area. We estimate that a total
watershed area of approximately 1,669 acres will be subject to indirect
stream impairment (approximately 1,148 acres within 2-miles of the
primary roost area plus approximately 521 acres within the Sandlick
Creek drainage). Based on our home range analysis, this area represents
19% of the estimated current home range of the colony (1,669 acres/8,769
acres) or the individual home ranges of about 17 bats (1,669 acres/100
acres). These bats are in addition to the 9 bats impacted within the
project footprint.

In summary, the proposed project will impact the maternity colony
through stream loss and indirect stream impairment, but to a
substantially lesser extent than we previously predicted. Impacts from
stream loss have already been accounted for, in terms of number of bats
estimated to be impacted, in the analysis of project impacts to forested
habitats. We predict that an additional approximately 17 bats will be
impacted by indirect stream impairment.

**Project Impacts to Indiana Bat Biological and Behavioral Factors**

*Roosting Habitat Loss & Roost Tree Loss - Summary*

The 2005 BO stated that the proposed project will cause extensive loss
of maternity roosting habitat within the action area, including the loss
of all roost trees known at that time. While the project will still
eliminate 1,941 acres of forest comprising potential roost habitat
within the action area, based on the project modifications and new
information indicating that much of the home range of the colony is
outside of the project area, the project impacts will be substantially
less than previously predicted, and the above forest acreage figure does
not provide a reasonable estimate of the loss of roost habitat. Based on
the results of our home range analysis, we expect that approximately 10%
of the colony's home range, representing the foraging habitat of
approximately 9 bats, to be impacted by the project footprint.

The project has been modified to retain the roost area in the headwaters
of Sandlick Creek. Also, the headwaters of Indian Creek and Three Forks
Branch, where the colony's primary roost site was discovered, provides
approximately 3,875 acres of forest comprising current and potential
roost habitat, a large portion of which is likely within the colony's
home range currently.

It is unlikely that currently established roost trees will remain
suitable throughout the life of the project. Therefore, the maternity
colony will still occasionally have to relocate as established roost
trees become degraded. However, it is known that Indiana bats show site
fidelity to roost areas, not just to individual trees (Gumbert et al
2002); therefore, as long as the remaining roost areas have, or continue
to produce, other suitable roost trees, the maternity colony should
continue to use these areas. However, the project will eliminate 912
acres of forested habitat within the estimated current home range of the
colony. It is likely that some, as of yet, unidentified roost trees will
be removed within the estimated current home range of the colony. These
losses will reduce the overall availability of roosting habitat within
the estimated current home range of the colony and restrict the ability
of the colony to move throughout this range and adapt to changing
conditions in previously used roost trees, as would occur under
"natural" conditions (Kurta et al. 2002).

In summary, the removal of 912 acres of forested habitat within the
estimated current home range of the colony will likely remove some
unknown current roost trees and reduce the availability of future
roosting habitat currently provided by this 912-acre area. Therefore,
the project is still expected to impact individual bats as described in
the "*Roosting Habitat Loss*" and "*Roost Tree Loss -- Summary*"
sections of the 2005 BO (pages 71-75). However, project modifications
designed to retain all known roost sites and discovery of the maternity
colony's primary roosts outside the project area indicate that much of
the home range of the colony will not be impacted by the project, and
therefore, the impacts to roosting habitat are expected to be
considerably less than previously predicted. Based on the results of our
home range analysis, we expect that approximately 10% of the colony's
home range to be impacted by the project footprint. This area of impact
represents the foraging habitat of 9 bats. Therefore, only 10% of the
colony is expected to be impacted by the project through loss of
potential roost habitat. Rather than being forced with "finding suitable
maternity sites at a time when they are already stressed from the rigors
of hibernation, migration, and the increased energy costs of pregnancy"
(Garner and Gardner 1992), or being displaced from known roosts for
multiple, successive years, 90% of the Indiana bats returning to the
action area in the spring will be able to utilize a variety of familiar
roost areas. This should significantly reduce or eliminate impacts to
colony cohesion as described in the 2005 BO, along with a resulting
reduction in impacts to thermoregulatory efficiency, energy
expenditures, fitness, and reproductive success.

*Foraging Habitat Loss*

The 2005 BO stated that the project will cause a reduction, or at least
a dramatic change, in the foraging habitat available to support the
Indiana bat within the action area as a result of the clearing of forest
and loss and degradation of streams. The proposed project will still
result in the loss of Indiana bat foraging habitat through the removal
of 1,941 acres of forested habitat and 50,748 linear feet (9.6 miles) of
stream. However, based on our home range analysis, the above forest
acreage and stream mileage figures do not provide a reasonable estimate
of the impacts to the colony. Based on our analyses above (Project
Impacts to Forested Habitats and Project Impacts to Aquatic Habitats),
we expect that 9 bats will be impacted by forest and stream loss and
approximately 17 additional bats by indirect stream impairment.

The 2005 BO assumed that Indiana bats were foraging within the forested
corridors around the headwaters, tributaries, and mainstem of Sandlick
Creek. Of the four Indiana bats tracked within the action area to date,
only one has had its foraging area defined. This bat's foraging area was
within the upper reaches of an unnamed tributary of Sandlick Creek, to
the west of Orchard Branch. This confirms the assumptions made in the
2005 BO. And as noted in the ENVIRONMENTAL BASELINE section of this
document, it is likely that other headwater and first order streams
within the action area are used by other members of the maternity
colony. The one identified foraging area will be filled by Laxare East
Valley Fill E. In addition, the large non-forested area that will be
created by construction of the Laxare East project will bisect the
remaining foraging habitats within the Sandlick Creek watershed from the
primary roosting area at the headwaters of Indian Creek. However, the
newly retained areas are contiguous with the riparian areas of Sandlick
Creek and should provide foraging area, as well as travel corridors from
established alternate roosting areas to other remaining foraging areas.

In summary, the project is still expected to cause the kinds of impacts
described in the 2005 BO (pages 75-79). Forest and stream loss will
cause bats using these areas for foraging to be displaced from these
areas. Depending on severity, stream impairment may cause bats using
these areas for foraging to be displaced or to experience decreased
foraging efficiency. Bats affected by foraging habitat impacts will
likely experience increased energy demands, increased inter- and
intra-specific competition, and social disruption, with the result that
some of these bats may experience increased risk of mortality and
decreased reproductive success. The headwaters of Indian Creek, where
the primary roost area is located, and the adjacent Three Forks Branch
watershed include 78,683 linear feet (14.9 miles) of streams, and much
of this area is within the likely current home range of the colony;
these two watersheds are relatively unimpacted by previous mining, and
the proposed project does not propose any mining or filling in these
watersheds. Bats using this area for foraging will not be impacted by
the project. Bats whose foraging areas will be impacted by the project
may find substitute foraging habitat in this area. As a result of these
factors, the severity of the anticipated effects to the maternity colony
from foraging habitat impacts will be substantially less than previously
predicted. We predict that approximately 9 bats will be impacted by
forest and stream loss and approximately 17 additional bats by indirect
stream impairment.

*Interspecific and Intraspecific Competition*

The 2005 BO stated that clearing of forested habitat will displace all
bats (Indiana bats as well as bats of a minimum of seven other species
documented within the action area) from the project area, and that these
bats may move into adjacent remaining habitats and compete for foraging
and roosting areas with bats (including other members of the Indiana bat
maternity colony) already using these adjacent habitats. Based on our
new analysis, we expect that impacts from interspecific and
intraspecific competition will still occur but to a lesser extent than
previously predicted.

Our new analysis indicates that 9 bats from the maternity colony will be
displaced by removal of foraging and roosting habitat. All displaced
bats will likely move into areas already used by other bats including
some Indiana bats. Therefore, the 9 displaced Indiana bats plus some
additional Indiana bats will experience increased interspecific and
intraspecific competition as a result of the project. It is not possible
to predict exactly where all of the displaced bats will go and to what
extent they will compete with un-displaced Indiana bats for foraging and
roosting areas. It can be expected that un-displaced bats (into whose
habitat displaced bats move) will experience lesser effects than
displaced bats, because displaced bats must enter less familiar habitat.
Also, because an Indiana bat maternity colony and local populations of
other bat species experience some level of mortality and recruitment
each year, it is reasonable to assume that individual members of an
Indiana bat maternity colony experience natural changes in competition
for foraging and roost areas during and between years, and that bats
adjust to these changes. In addition, the estimated 9 displaced bats
from the maternity colony are not expected to be displaced at the same
time but rather over the several years in which forest habitat will be
cleared. Considering these factors, we expect that the impact from
increased competition will likely affect only a small number of bats
within the colony and that this effect will be small and short term.

*Colony Cohesion and Social Structure*

The 2005 BO concluded that the maternity colony will likely be
extirpated as a result of the suspected small colony size, ongoing
impacts to the colony from previous mining and logging activities, and
the cumulative total of all the anticipated adverse impacts to
individual bats. Primary factors in this analysis were the expected loss
of foraging and roosting habitat of individual bats and the colony's
primary roosts which would significantly affect the colony's cohesion
and social structure.

As a result of project modifications and the discovery of the colony's
primary roosts outside the project area, we believe that impacts to
colony cohesion and social structure will be significantly less than
previously predicted. Because the primary roost area will not be
impacted by the project, individual members of the colony are expected
to be able to locate each other when returning each spring. In addition,
the size of the colony, estimated at approximately 75 adult bats, is
considerably larger than previously believed with a large proportion
(approximately 90%) of these bats estimated to have individual home
ranges outside the project area. These factors increase the likelihood
that colony cohesion will be maintained. Approximately 26 bats are
expected to be impacted by habitat impacts (i.e., forest and stream loss
and indirect stream impairment). Some of these bats are expected to be
displaced and to search for substitute habitat. Displacement of bats may
result in some disruption to the social structure of the colony
depending on the extent of impacts to the individual bats and their
response to the impacts (e.g., the distances they must travel to find
replacement habitat which may affect their interactions with other
closely related bats within the colony). However, because only a
relatively small number of the bats in the colony are expected to be
potentially displaced by the project's habitat impacts, it is likely
that social structure disruption stemming from these habitat impacts
will be small and temporary, and likely affecting only a small number of
bats.

**Analysis of Adjacent Habitat**

As described in the Home Range Analysis section of this document, the
2005 BO analysis of adjacent habitat is no longer appropriate and has
been replaced with the new home range analysis.

*Other Major Mining Projects within Adjacent Habitats*

Two projects, West of Stollings and Lexerd, were previously described in
this section. Consultation on these projects was previously completed
and the projects are currently under construction. Based on the location
of our estimated colony home range, it is expected that these projects
will not impact the colony.

**Effects of Conservation Measures**

*Summer Habitat Retention*

The applicant previously proposed leaving summer habitat on the lower
slopes for both the mountaintop removal and contour mine projects, and
on the upper slopes for the contour mine projects. During consultation
on the 2005 BO, we concluded that: 1) many of the areas that the
applicant proposed to leave intact would not be suitable to support
Indiana bats; 2) the conservation measure as previously proposed did not
serve to retain aquatic foraging areas such as headwater or intermittent
streams, a habitat type that has been shown to be of biological
importance to the Indiana bat; 3) there were no assurances that this
habitat would remain intact; and 4) that this measure was not truly a
conservation measure because the project had not been modified to
minimize impacts to summer habitat.

Since the time of that consultation, the applicant has proposed measures
to retain an additional 258 acres of forested habitat (including all
known roost trees) and 12,477 linear feet of stream (2.3 miles). These
project modifications were targeted to address items 1, 2, and 4 in the
paragraph above, and will result in aquatic and forested habitats that
are known to be suitable to Indiana bats being retained. This revised
conservation measure is expected to substantially minimize or offset
project related adverse effects to the Indiana bat. To date, long term
conservation of these areas (item 3, above) has not been established.
This remaining issue was addressed under Reasonable and Prudent Measure
2 of the 2005 BO, which requires the applicant to implement reasonable
measures to provide for long-term conservation within 3 years of permit
issuance (i.e., by no later than August 23, 2008).

Terms and Conditions 2.5 and 2.6 in this opinion discuss the need for
identifying priority conservation areas and means to protect these areas
over the long-term. Data from the 2005 surveys suggest that lands and
waters within the Indian Creek and Three Forks Branch watersheds,
especially those containing and immediately adjacent to the primary
roost area, will be of particular importance in ensuring the long-term
survival and health of the colony. Efforts to implement these terms and
conditions should focus on the forested and aquatic habitats in these
two watersheds surrounding the primary roost area.

**Effects of the Action Summary**

The proposed action will still result in a significant change in the
summer environment for the Indiana bat maternity colony present in the
action area. The proposed action will remove approximately 1,941 acres
of habitat and will directly impact 50,748 linear feet (9.6 miles) of
streams. The impacts to these areas will reduce the availability of
roosting habitat; eliminate preferred foraging areas, flyways, and
watering areas; and reduce the availability of prey. Remaining streams
will be subject to indirect effects that will further degrade remaining
foraging habitat and reduce the availability of prey for the Indiana
bat. As a result, it is anticipated that bats will suffer "harm" through
malnutrition; increased energy expenditures; decreased fitness;
increased susceptibility to failed pregnancies; and delayed volancy and
maturation of pups. These types of effects remain the same as described
in the 2005 BO, but their extent and severity now differ.

Project modifications have reduced project impacts by 258 acres of
forested habitat and 12,477 linear feet (2.3 miles) of stream. These
modifications were targeted to retain forested and aquatic habitats that
are known to support Indiana bat roosting and commuting habitats. These
modifications have also substantially reduced proposed fragmentation of
remaining forested and riparian habitats. One large block of
approximately 908 acres of contiguous forested riparian habitat will
remain along Sandlick Creek, and its tributaries and headwaters. The
roosting areas identified during 2003 and 2004, and all four Indiana bat
capture sites, are located within this area.

In addition, surveys conducted in 2005 documented two primary roost
trees located near the upper reaches of the Indian Creek and Three Forks
Branch watersheds. These watersheds provide forested and aquatic
habitats that are presumed to constitute the majority of the home range
of the colony, and that will not be impacted by the project. Retaining
established roosting and commuting areas will reduce impacts to
thermoregulatory efficiency, energy expenditure, fitness, and
reproductive success. Adverse effects from disruption of colony cohesion
and social structure and from inter- and intra-specific competition will
be lessened.

A home range analysis indicates that the proposed project footprint will
impact up to 10% of the home range of the colony, representing the
foraging habitat of approximately 9 bats (12% of the approximately 75
estimated adult bats within the colony). An additional 17 bats are
expected to be impacted by stream impairment. Therefore, only 26 of the
current 75 adult bats within the colony are estimated to be impacted by
the project's habitat impacts. Based on this analysis, we predict that
the impacts of the proposed project will be substantially less than
previously predicted, and we therefore anticipate that the colony will
persist.

**CUMULATIVE EFFECTS**

*\[The following four paragraphs supplement the Cumulative Impacts
section of the 2005 BO, pp. 95-99 BO.\]*

The 2005 BO listed three additional mining projects that could occur
within the action area: the Checkmate Amendment, Black Castle Contour
Amendment #1, and Short Ridge. One additional project, the Indian Creek
Haulroad has also been proposed to occur in the action area. The 2005 BO
(pages 95-99) described the jurisdictional issues between the Clean
Water Act section 404 permits issued by the Corps and the Surface Mining
Control and Reclamation Act (SMCRA) permits issued by the WVDEP, and the
resulting uncertainty regarding whether impacts, such as tree clearing
resulting from adjacent mining actions, should be considered future
federal actions that would undergo separate section 7 consultation.

Since the time of that consultation, the WVDEP has indicated that they
intend to address mining projects in the action area through
implementation of the 1996 Formal Section 7 Biological Opinion and
Conference Report on Surface Coal Mining and Reclamation Operations
under the SMRCA. This is reflected in their letter requesting that they
join with the Corps as joint action agencies for this current
consultation. As a result, these adjacent projects will be addressed
through separate consultations. They are therefore considered future
Federal actions subject to consultation and not cumulative effects, and
will not be considered further here.

The 2005 BO described the 12,000 acres of land within and around the
action area that the applicant currently has under long-term lease,
including over 6,000 acres of largely contiguous forest located
immediately northeast of the Laxare East project area. The 2005 BO
stated that this is the area that the colony would most likely move to
when displaced from the project area, and that, therefore, loss of all
or a significant portion of this area would reduce the likelihood that a
viable colony could be maintained in the area. Because a substantial
portion of the maternity colony is believed to be already using this
area (based on the discovery of the primary roosts in this area), we
continue to believe, as expressed in the 2005 BO, that this area is
important to the likelihood that a viable maternity colony could be
maintained.

Private landowners own the surface rights to the lands northeast of the
Laxare East project area. These private landowners will likely undertake
activities in the future that will alter existing vegetation on their
properties such as timber harvesting, grazing, or other commercial or
agricultural development. Based on the pattern of past land use
practices in the general area, it is likely that these activities would
impact Indiana bat maternity colony habitat to an extent that the
viability of the maternity colony could be compromised. Whether the
colony would become extirpated would depend on the nature, timing, and
magnitude of the impacts; these impacts could be influenced by the
colony's potential natural relocation of primary roosting areas within
its home range or to adjacent areas, and by other factors. Because these
activities that impact Indiana bat maternity colony habitat would likely
result in take of the species, an Endangered Species Act section 10
permit would be required from the Service. Issuance of such a permit is
considered a Federal action and would be subject to intra-Service
section 7 consultation. Because they are considered future Federal
actions subject to consultation and not cumulative effects, they will
not be considered further here.

**CONCLUSION**

*\[The following section replaces the Conclusion section in the 2005 BO,
pp. 99-101.\]*

The 2005 BO described the Indiana bat as a species in serious decline
and provided projections of the future population should past rates of
decline continue (e.g., a reduction of 50% in the next 15 to 30 years).
Although census information for the 2003 and 2005 survey periods appear
to indicate an increase in the Indiana bat population, because
confidence intervals are not available for these and previous estimates,
it is unknown whether the increase represented by the 2003 and 2005
estimates is biologically or statistically significant. Potentially
significant sources of uncertainty with these estimates include
assumptions about status in caves or portions of caves that cannot be
surveyed in a particular year, and changes in counting methodologies
(e.g., change from visual estimates to use of digital photography).
Because of these uncertainties and the short time frames involved, we do
not consider these recent population estimates as representing a halting
or reversal of the species' documented long-term decline.

Based on the capture of two Indiana bats within the project area in 2003
and the past impacts in and adjacent to the action area, the Service
concluded in the 2005 BO that the maternity colony had already
experienced substantial impacts. The Service further concluded that,
while the proposed action was likely to cause significant impacts to the
remaining members of the colony, the effects will exacerbate, rather
than create, a decline that may have been set in motion by habitat loss
and degradation caused by previous logging and mining activities. Based
on past impacts, current site conditions, and small size and probably
declining status of the colony, the 2005 BO concluded that the project
would not cause species-level impacts to the Indiana bat, and that,
therefore, the project would not result in jeopardy to the species.

The Service has since received new information indicating that the
maternity colony is of an average size of approximately 75 adult bats
and that the colony's primary roosts are located outside the project
area near the headwaters of Indian Creek and Three Forks Branch. Based
on this information, the Service now believes that the maternity colony
has not been pushed into decline and toward extirpation by previous
mining and logging activities. Also, the proposed action has been
modified by eliminating or reducing the size of each of four valley
fills to reduce impacts to known Indiana bat foraging and roosting
areas. In addition, as a result of the discovery of the colony's primary
roost site outside the project area, we predict that roughly 10% of the
colony's home range, representing the foraging areas of 9 of the
colony's approximately 75 adult bats, will be impacted by the project
footprint, with an additional 17 bats impacted by stream impairment.
Therefore, only 26 of the bats in the maternity colony are expected to
be affected by the project's habitat impacts. The impacts to many of
these bats are expected to be small and/or temporary. Based on this
information, the Service now predicts that the maternity colony is not
likely to become extirpated. Although the colony may be reduced in size,
colony persistence will avoid species-level impacts.

In conclusion, after evaluating the current status of the species, the
environmental baseline for the action area, the effects of the proposed
mining projects, and the cumulative effects, it is the Service's
biological opinion that the action, as proposed, is not likely to
jeopardize the continued existence of the Indiana bat by engaging in an
action that reasonably would be expected, directly, or indirectly, to
reduce appreciably the likelihood of both survival and recovery of the
Indiana bat in the wild by reducing reproduction and distribution of the
species. Whereas critical habitat for this species has been designated
at hibernacula in Illinois, Indiana, Kentucky, Missouri, Tennessee, and
West Virginia, this action does not affect these areas, and no
destruction or adverse modification of critical habitat is anticipated.

**INCIDENTAL TAKE STATEMENT**

Implementation of the Laxare East and Black Castle Contour projects is
expected to result in the permanent loss of approximately 10% (912
acres) of suitable summer foraging and roosting habitat for Indiana
bats, as well as 5.0 miles of stream habitat. An undetermined number of
stream miles within approximately 19% of the home range of the colony
will be indirectly degraded by mining due to the presence of upstream
valley fills. Forest and aquatic invertebrates, the prey sources for
Indiana bats, will be affected by forest and stream loss and
degradation, resulting in a reduction in the quality, quantity, and
seasonal availability of food for Indiana bats. Due to the nature of the
project, and the historical lack of success in reclaiming diverse,
high-quality forest and stream habitats on mined lands, Indiana bats
will not re-colonize the mined areas of the project footprint.

The Service anticipates that take in the form of killing, harm and
harassment (as defined in 50 CFR §17.3) will occur as a result of the
direct and indirect effects of the proposed mining action and that
individuals present within the action area will be subjected to take
through lost reproductive capacity, predation, or reduced fitness
leading to injury or death. Harm may be most often manifested percent in
sub-lethal injury in the form of lost reproductive capacity, or reduced
fitness. Approximately 10% of the foraging habitat that is likely to be
currently supporting a portion of the colony will be eliminated,
fragmented or degraded. Additionally, the streams within another 19% of
the home range of the colony that are down stream of the valley fills
will be subject to long-term degradation. The loss, degradation and
fragmentation of upland and aquatic foraging and roosting habitat is
expected to result in injuries in the form of a reduction in the
reproductive output, as a result of increased metabolic expenditures,
decreased food supply and water supply, increased exposure to predation,
and increased competition, for those individuals that are displaced by
mining activities. These factors may result in the death of some bats
(fetal, juvenile, and adults). Behavioral and physiological responses of
Indiana bats to habitat loss will likely result in some bats being in
poorer body condition (*e.g*., having less stored fat) during migration
and hibernation. Therefore, increased Indiana bat mortality may also be
expected at hibernacula, and along spring and fall migration routes by
those bats whose habitat is destroyed.

These effects at the individual level may be further reflected at the
colony level, by temporarily reducing the size and reproductive
potential of the maternity colony over the12-year life of the project.
Based on our analysis of the environmental baseline and effects of the
proposed action, all of the bats located within 31% of the Indiana bat
maternity colony will be impacted as a result of the proposed project.
As discussed in the "Environmental Baseline" section of this opinion,
this colony is likely consistent with an average size maternity colony
of 60-80 adult bats. Despite the potential temporary colony size
reduction, the colony is anticipated to persist throughout and beyond
the life of the project due to the reduction in project impacts to
forested and aquatic habitats, the retention of all known roost areas,
and the crucial fact that primary roost areas are now known to be
established in areas outside of the project footprint and will not be
directly impacted by the proposed action. These factors most greatly
influenced the magnitude of impacts anticipated in these revised
findings. In the 2005 BO, it was anticipated that the entire maternity
colony population, which was believed to be decreasing, would be
displaced over the life of the project and eventually extirpated due to
the effects of the mining. These revised findings indicated that the
majority of the maternity colony population will remain largely
unaffected by the proposed action.

Since many of the anticipated effects of the action will occur to
individual bats at a sub-lethal level, the overall health, fitness, and
reproductive success or failure of individual bats will not be
detectable, and nearly impossible to assess throughout the life of the
project. Therefore, the most feasible means of evaluating the ultimate
impacts of the project will be by monitoring the size and persistence of
the colony over time. Even under natural conditions, however, colony
size is likely fluid from year to year. Climatic factors such as weather
(temperature, precipitation) can have significant impacts on the
survival and reproductive success of individual bats. The condition and
availability of established roost trees, and colony dynamics
(fission-fusion reactions) may also cause the colony population to
fluctuate. Therefore, detection of anticipated effects of the action
will be difficult to differentiate from normal population fluctuations
and monitoring criteria will be required to ensure that project impacts
are not having a greater impact on the population than anticipated
without creating a reinitiation level that is triggered by normal
population fluctuations. Since the impacts of the project will not
happen to all affected bats in all years, only a small portion of the
individuals anticipated to be impacted (designated in Table 16a, below),
are likely to be affected each year and most of those affected are
expected to survive the following years. Therefore, any sudden drop in
maternity colony population size may indicate project impacts to the
colony, or changed conditions that have not been considered in this
biological opinion and may signify the need for reinitiation of
consultation[^2]. Examples of situations that indicate the need to
consider reinitiation are given in the REINITIATION notice at the end of
this Biological Opinion.

**Amount or Extent of Take**

The Service anticipates the following levels of incidental take as a
result of project implementation (Table 16a). Take of the entire colony
is not anticipated or authorized.

**Table16a. Indiana bat incidental take estimates for the Laxare East
and Black Castle Contour Projects**

  ------------ ----------- ---------------------------- --------------------
  **Take       **Amount of **Type of Take (or Effect)** **Area Within Which
  Unit**       Take**                                   Take (or effect) is
                                                        Anticipated to
                                                        Occur**

  Individual   Up to 9     Harm due to habitat loss,    Laxare East and
               adult       degradation and              Black Castle Contour
               females,    fragmentation -- resulting   Mines within Primary
               plus their  in increased injury,         Roost Area, and
               pups over   mortality, and failed        Sandlick Creek
               the life of reproduction during and      drainage valley
               the project after displacement and       fills C and D.
                           relocation. We anticipate    
                           that most of these effects   
                           will be at a temporary and   
                           sub-lethal level, sufficient 
                           to allow for colony          
                           persistence, however, lethal 
                           impacts are anticipated for  
                           a small portion of the       
                           adults, fetuses, and pups.   

  Forested     Estimated   Permanent loss of foraging   Laxare East Black
  Habitat      912 acres   and roosting habitat,        Castle Contour Mines
               (10 % of    habitat fragmentation and    within Primary Roost
               the home    degradation, resulting in    Area and Sandlick
               range of    loss of potential foraging   Creek Drainage
               colony.)    and roosting habitat         valley fills C and
                                                        D.

  Stream       5.0 miles   Permanent loss of streams    Laxare East Mine
  Habitat                  and their associated         within Primary Roost
                           watering and prey base for   Area and Sandlick
                           Indiana bats                 Creek Drainage
                                                        valley fills C and
                                                        D.

  Individual   No more     Harm due to long term        Areas downstream of
               than 17     degradation of streams, and  Laxare East and
               adult       reduction of associated prey Black Castle
               females,    base, water source,          mining/fill areas
               plus their  resulting in increased       within the primary
               pups over   injury, mortality, and       roost area and the
               the life of failed reproduction We       Sandlick Creek
               the         anticipate that most of      Drainage.
               project.    these effects will be at a   
                           temporary and sub-lethal     
                           level, sufficient to allow   
                           for colony persistence,      
                           however, lethal impacts are  
                           anticipated for a small      
                           portion of the adults,       
                           fetuses, and pups.           

  Indirect     Streams     Long-term alteration of      Laxare East Black
  Stream       within an   streams and their associated Castle Contour Mines
  Impacts      estimated   watering and prey base for   within Primary Roost
               19% of the  Indiana bats                 Area and the
               home range                               Sandlick Creek
               of the                                   Drainage valley
               colony.                                  fills C and D.
  ------------ ----------- ---------------------------- --------------------

The *Reasonable and Prudent Measures* and their implementing *Terms and
Conditions* provide for monitoring to more clearly establish the
pre-project baseline, to document take, and to determine whether the
effects of the project on Indiana bats and their habitat are consistent
with those anticipated in this opinion.

**Effect of the Take**

In this biological opinion, the Service has determined that this level
of expected take is not likely to result in jeopardy to the Indiana bat.

**REASONABLE AND PRUDENT MEASURES**

The Service believes the following reasonable and prudent measures
(RPMs) are necessary and appropriate to minimize incidental take of
Indiana bats. In order to be exempt from prohibitions of Section 9 of
the Act, the Corps, the WVDEP, and the applicant must comply with the
following terms and conditions which implement the reasonable and
prudent measures and outline reporting/monitoring requirements. These
terms and conditions are non-discretionary. In summary, these actions
include surveys and monitoring of Indiana bat populations and habitat,
protection of priority suitable habitat, avoidance of winter
hibernacula, seasonal restrictions on tree cutting to avoid bat
presence, and reduction of impacts to bat foraging and roosting areas.

So that a complete list of all the RPMs that apply to the projects are
contained in one document, the text of all the RPMs and their associated
Terms and Conditions are repeated below. For each RPM we have noted
whether the requirements of the RPM have been initiated, and the current
status of that effort. We have also updated the introductory text and
literature citations in the RPMs, as needed. Other than changes to the
text of RPM 5.8, no substantial changes to the RPMs are being
recommended as a result of this reinitiation of consultation. Changes to
RPM 5.8 are being recommended to clarify the intention of previous text,
and to target pre-maternity period season monitoring on the most
important trees while ensuring the overall level of effort is focused on
the more critical maternity period monitoring. In addition, limited
monitoring at the Orchard Branch roost area is being recommended to
determine if this roost area is still being used.

***RPM 1: Avoid direct take by conducting all timber harvesting and tree
cutting activities when Indiana bats are unlikely to be present.***

*This RPM was implemented during the 2005/2006 season and will continue
to remain in effect for the life of the project.*

Cutting trees while bats are present may cause death and injury to adult
Indiana bats and their young, and may also disrupt roosting and
maternity behavior. The potential for direct take will be avoided by
conducting all tree clearing activities during the hibernation period
for the Indiana bat (November 15 to March 31) when Indiana bats are
either hibernating or congregating around the hibernacula.

[RPM 1: Terms and Conditions]{.underline}:

1.  The applicant shall conduct all timber harvesting and tree cutting
    in the permit area between November 15 to March 31, when Indiana
    bats are unlikely to be present within the permit area.

.

***RPM 2: Conduct a comprehensive survey within and adjacent to the
permit area using a variety of techniques to identify areas of
concentrated Indiana bat usage; conduct an assessment to identify
priority suitable habitat within the permit area that are not proposed
to be cleared and areas adjacent to the permit area; and implement
reasonable measures to conserve these priority suitable habitats.***

*The applicant has submitted a survey plan in accordance with 2.4, and
conducted some limited surveys in adjacent areas in accordance with 2.1.
Additional work to fully implement this RPM is required.*

To establish baseline conditions and ensure compliance with the
established level of take, comprehensive surveys within the permit area
are necessary. Indiana bats present within the permit area will most
likely be displaced into adjacent habitats. The currently identified
primary roost trees are located in a large block of contiguous forest
located to the northeast of the permit area. Once displaced from the
permit area, it is likely that Indiana bats will heavily rely on this
area to support the colony. This area is currently under lease entirely
by the applicant and that does not appear to be bisected by any other
adverse surface leases. Only limited mist net surveys have been
conducted for Indiana bats within this area. It is possible that this
area is already occupied by Indiana bats, and that these bats would be
impacted by displaced Indiana bats moving into their established home
ranges. To establish current baseline conditions and ensure compliance
with the established level of take, it is necessary to conduct
comprehensive surveys within these adjacent habitats in addition to the
permit area.

Project impacts to Indiana bats could be minimized by protecting
priority suitable habitat in areas Indiana bats currently and may
continue to use and areas to which Indiana bats may be displaced as a
result of the project. Identification of these priority suitable habitat
areas will guide the identification of reasonable measures to conserve
these areas.

[RPM 2: Terms and Conditions]{.underline}:

1.  The applicant shall comprehensively survey forested and aquatic
    habitats within and adjacent to the permit area to determine
    baseline conditions for the Indiana bat. Surveys adequate to detect
    the presence of Indiana bats; identify currently used roosting and
    foraging areas; estimate the number and size of maternity colonies;
    and establish the size of Indiana bat home ranges shall be conducted
    as defined under RPM 5 during the 2006 maternity season. These
    surveys should include areas currently under lease by the applicant
    that are located to the north/northeast of the permit area. The
    applicant and/or their consultants shall make reasonable efforts to
    obtain permission to conduct surveys on any adjacent or nearby lands
    that Indiana bats within the permit area may also be using. Surveys
    within these additional areas shall comply with the terms and
    conditions established for surveys within the permit area (RPM 5)
    with the exception that monitoring of adjacent areas need not be
    conducted in subsequent years unless data indicate that Indiana bats
    may be utilizing these areas.

2.  All Indiana bat monitoring efforts shall be supervised by a
    qualified surveyor with experience identifying and working with
    Indiana bats. At the time work is conducted, lead surveyors on-site
    must hold any permits required by the Service and have a valid
    collecting permit from the WVDNR.

3.  The applicant shall coordinate all surveys with the Service prior to
    conducting the work. Proposed survey locations, frequency, level of
    effort, and methods for each field season shall be submitted to the
    Service for review and concurrence at least 45 days prior to the
    beginning of each monitoring season.

4.  Within one year of permit issuance (i.e. by August 23, 2006), the
    applicant shall conduct qualitative and quantitative roosting and
    foraging habitat assessments in areas accessible to the applicant by
    right or by permission to determine whether habitats that will
    remain in the permit area and habitats adjacent to the permit area
    are suitable to support Indiana bats and to identify areas that
    would be most suitable to support Indiana bat maternity activity.
    These assessments shall focus on, but not be limited to, habitats
    located along the riparian areas of Sandlick Creek and its
    tributaries, and existing forested habitat located to the
    north/northeast of the Laxare East permit (including the Indian
    Creek and Three Forks Branch watersheds surrounding where the
    primary roost trees have been identified). This assessment may use
    existing Habitat Suitability Indexes or other methods, as
    appropriate. The applicant shall submit an assessment plan to the
    Service, WVDEP and the Corps for concurrence at least 45 days prior
    to the initiation of the work.

5.  Within two years of permit issuance (i.e. by August 23, 2007), the
    applicant shall identify priority conservation areas based on the
    results of RPM 2.1 and RPM 2.4 above. These areas shall be selected
    based on demonstrated Indiana bat usage or on their ability to
    provide: 1) large forest blocks; 2) migration corridors and
    connectivity among existing stream corridors and blocks of forested
    habitat; 3) intact ephemeral, intermittent, and perennial stream
    courses with forested riparian buffers for foraging and travel;
    and 4) high quality roost and maternity trees. All information
    regarding the identified priority conservation areas shall be
    submitted to the Service for review and concurrence.

6.  Within three years of permit issuance (i.e. by August 23, 2008), the
    applicant shall implement reasonable measures to provide for
    long-term conservation of the priority conservation areas identified
    pursuant to RPM 2.5. Measures to achieve long-term conservation may
    include, but are not limited to, purchasing timber rights and
    establishing a management agreement, conservation easement, or other
    legal mechanism. The applicant shall provide to the Corps, WVDEP and
    the Service documentation that all available reasonable measures
    have been identified and implemented.

***RPM 3: Implement reasonable measures to modify the placement of fill
in waters of the United States to reduce impacts to known Indiana bat
foraging and roosting areas.***

*This RPM has been completed.*

The applicant indicated by electronic mail dated November 29, 2004, that
they believe they have minimized fills to the maximum extent practicable
based on engineering design constraints. However, the Corps is required
to conduct a National Environmental Policy Act analysis and Clean Water
Act 404(b) (1) analysis under regulations governing the issuance of
individual Clean Water Act permits. That analysis may reveal additional
reasonable measures that could be implemented to avoid and minimize
impacts to foraging and roosting habitat.

[RPM 3: Terms and Conditions]{.underline}:

3.  In accordance with the National Environmental Policy Act and other
    regulations governing the issuance of individual permits under the
    Clean Water Act, the Corps must evaluate measures that may be
    available that would minimize fills in Waters of the United States,
    focusing on measures that would reduce impacts to the Sandlick Creek
    watershed and avoid or minimize impacts to known Indiana bat
    roosting and foraging areas, including those areas designated as
    Black Castle Contour fill 11 and Laxare East fills C and G. If that
    analysis indicates that reasonable measures are available that would
    reduce impacts to the Indiana bat, the Corps, in accordance with its
    authorities, shall require that these measures be implemented. The
    results of that analysis shall be coordinated with the Service to
    confirm reduction of impacts to Indiana bats. The applicant shall
    provide to the Corps and the Service documentation that all
    available reasonable measures have been identified and implemented.

***RPM 4: Implement reasonable measures to delay impacts to foraging and
roosting habitat within and/or adjacent to the permit area to minimize
impacts to Indiana bats.***

*This RPM has been implemented by modifying the project to avoid impacts
to known roosting areas in the footprints of the valley fills as listed
below. Additional measures may be developed based on coordination
between the parties as described.*

As described in the "Effects of the Action" section, the proposed
project will limit the availability of suitable roost trees and foraging
habitat. Maintaining suitable roosting and foraging habitat is important
so that Indiana bats returning to the area will be able to find enough
habitat in close proximity to established maternity areas to overcome
post-migration stress, have enough suitable habitat to support the
colony, or find sufficient travel corridors to shift their foraging and
maternity ranges to adjacent intact habitat and adjust to changing
habitat conditions. Delaying impacts to known foraging and roosting
habitat within the permit area will reduce the potential for take from
these effects and increase the possibility that the colony will persist.

[RPM 4: Terms and Conditions]{.underline}:

1.  The Corps, WVDEP and the applicant, in coordination with the
    Service, shall review the results of surveys conducted under RPMs 2
    and 5, and the applicant shall use this information to identify and
    implement all reasonable measures to minimize impacts caused by
    displacing Indiana bats through modification of the timing and
    phasing of clearing and/or construction. These measures shall focus
    on delaying disturbances to known roosting and foraging areas,
    including disturbances resulting from Black Castle Contour's valley
    fill 11 (known foraging area of Indiana bats) and Laxare East's
    valley fills C and G (known roost area for Indiana bats), and
    designing construction to allow for travel corridors from existing
    roosting/foraging area into conservation areas as identified
    pursuant to RPM 2.5. The applicant shall provide to the Corps, WVDEP
    and the Service documentation that all available reasonable measures
    have been identified and implemented.

***RPM 5: Monitor Indiana bats to identify areas on-site that are used
by the bat and to quantify the amount and type of take.***

*This RPM was initiated during the 2005 maternity season and will
continue to remain in effect for the life of the project.*

It is anticipated that some of the foraging and roosting areas used by
Indiana bats will be destroyed, degraded, and fragmented. Bats will be
displaced from foraging and roosting areas. These impacts will result in
reduced survival, reproduction, and fitness of individual bats and
reduce the overall size of the maternity colony. Monitoring studies have
the potential to identify these effects. A plan for surveying,
monitoring, and reporting on the Indiana bat within the permit area and
adjacent habitat shall be developed and conducted in consultation with
the Service.

The purpose of the monitoring plan is to: 1) determine whether the
actual level of take occurring is in compliance with the established
level of incidental take; 2) assess the effectiveness of RPMs and
conservation measures over time; 3) determine the need for adjustments
to management of the Indiana bat habitat; and 4) evaluate the response
of bats to the disturbance that will occur in the permit area. The
monitoring plan shall be designed to meet these minimum specifications
and include mist-netting, acoustical surveys, telemetry, emergence
counts, and reporting of results.

[RPM 5: Terms and Conditions]{.underline}:

5.1 The applicant shall monitor Indiana bats annually over the life of
this project beginning in the year that the first permit was issued
(2005) and continuing at least two years past the completion of all
mining and reclamation within the permit area. Each year, monitoring
shall be conducted during each the survey season April 1 to November 15,
and shall include mist netting, telemetry, and emergence counts during
the sampling periods of Indiana bat pregnancy (May 15 -- June 15);
lactation (June 15- July 15); and post-lactation/juvenile volancy (July
15 -- August 15). Survey elements shall be designed to meet the minimum
qualifications as outlined below.

5.2 All Indiana bat monitoring efforts shall be supervised by a
qualified surveyor with experience identifying and working with Indiana
bats. At the time work is conducted, lead surveyors on-site must hold
any permits required by the Service and have a valid collecting permit
from the WVDNR.

5.3 The applicant shall coordinate all surveys with the Service prior to
conducting the work. Proposed survey locations, frequency, level of
effort, and methods for each field season shall be submitted to the
Service for review and concurrence at least 45 days prior to the
beginning of each monitoring season.

5.4 The applicant shall conduct mist-net and acoustical monitoring
surveys annually throughout the permit area and adjacent areas that
Indiana bats are likely to colonize or be displaced into. Surveys shall
be sufficient to monitor previously identified foraging and roosting
areas, and identify new roosting and foraging areas that may be used by
displaced bats. Acoustical monitoring shall be used to screen and
prioritize potential mist net locations, and/or monitor general bat
activity at a location. Mist netting once annually during each sampling
period (as defined in 5.1) need not exceed the level of effort as
defined under the mist net survey protocols\*. Mist netting during each
sampling period may be discontinued when the target number of bats is
caught (as defined in 5.6). Mist net survey locations shall be designed
to avoid the use of invasive techniques that may cause roost
abandonment. Sampling locations may be adjusted each sampling period as
original locations are impacted by construction or if previous
monitoring suggests more productive sample locations. The applicant
and/or their consultants shall make reasonable efforts to obtain
permission to conduct surveys on any adjacent or nearby lands that
Indiana bats within the permit area may also be using.

> \* The number of mist net sites required has not changed as a result
> of this supplemental B.O. To meet these requirements, 18 sites will be
> surveyed for a total of 72 net nights of effort during each of the
> three separate survey periods. Thus, combined will be 216 net nights
> of effort for the project each year. The surveys conducted under RPM
> 2.1 are in addition to the sites listed above.

5.5 All Indiana bats captured shall be fitted with a numbered,
lightweight band. The most current banding procedure or marking
recommendations shall be followed. Wing punches and hair samples shall
be gathered and retained for all Indiana bats captured. Hair and wing
samples shall be retained, processed and analyzed according to the
direction of the Service. Stable isotope analyses shall be conducted on
hair samples unless otherwise directed by the Service. Other data
collected on captured bats shall include species, age, sex, right
forearm length, weight, and reproductive condition. Capture specifics
such as vertical location in the net, flight direction, and time of
capture shall also be recorded. All bats shall be released at the net
site unharmed in compliance with procedures designated by the Indiana
bat recovery team, or other Service protocols.

5.6 The applicant shall conduct telemetry studies annually during each
sampling period (as defined in 5.1) in order to identify, characterize,
and map current foraging areas, roost trees, and home ranges, as well as
determine bat use of, and movement between these areas. All Indiana bats
captured during the mist netting surveys, with a target of 4 Indiana
bats per sampling period, shall be fitted with a radio transmitter.
Telemetry studies shall prioritize tracking of female Indiana bats,
although tracking of males and juveniles may also be conducted. The bats
shall be

tracked as long as the signal can be detected. Roost trees shall be
identified and mapped during daylight hours and used as starting points
for the next night's tracking. Triangulation methods shall be used to
establish bat locations during night tracking. Because monitoring must
be geared to evaluating the response of the bats at the colony level,
mist netting and telemetry work shall be designed to include tracking as
many different bats as possible, and tracking shall be conducting during
the three sampling periods within the maternity season: pregnancy (May
15 -- June 15); lactation (June 15- July 15); post-lactation/juvenile
volancy (July 15 -- August 15).

5.7 Upon identification of a roost tree from telemetry studies, the
applicant shall gather information to document the location of the roost
and record site-specific data relative to the roost area. For each tree
containing a roost used by an Indiana bat, the species, the height,
diameter at breast height (dbh), condition (alive or dead), aspect,
elevation, and the percentage of exfoliating bark shall be recorded.
Distances from the roost tree to other roosts used by the bat(s), to the
nearest perennial and intermittent stream, and to the edge of mining,
tree clearing or other related disturbances shall be measured. Percent
canopy closure above roost trees and habitat cover type near each roost
shall also be recorded. Roost trees shall be marked in a manner
sufficient to identify the trees in the field.

5.8 The applicant shall conduct emergence counts in order to determine
the size of the maternity colony, and document the colony's rate of
production. Emergence counts shall be conducted at all roost trees
actively used during the previous year and any new roost trees
identified during that monitoring year. Emergence (dusk) counts shall be
conducted at each identified roost tree at least once weekly throughout
the period from May 15 and continue through August 15 or until the bats'
departure in the fall (defined as at least one week beyond the date that
no bats are found emerging from any known roost tree), whichever is
later. Every other week, emergence counts shall be conducted at all
roost trees simultaneously to determine overall size of colony. Specific
trees may be dropped from emergence counts if no bats are documented
using that tree for five consecutive emergence counts conducted after
May 15, and if no bats have been documented using that tree during that
time period through other sampling methods (telemetry/acoustical
monitoring).

In addition, any primary roost trees used during the previous year shall
be monitored at least once a week between April 1 and May 15. Monitoring
may be completed by conducting emergence counts, through acoustical
monitoring, or other similar methods. Additional trees may be designated
based on the professional opinion of the qualified surveyor under
consultation with the Service.

Roost trees within the Orchard Branch area have not been evaluated since
the initial surveys conducted in 2003. In order to determine if this
area is still being used for roosting, emergence counts, acoustical
monitoring, or other similar methods shall be conducted on trees used in
this area over a five week period during the lactation (June 15- July
15) and post-lactation/juvenile volancy (July 15 -- August 15) periods
of 2006. If it is documented that no bats are using these trees, they
may be dropped from monitoring, according to the criteria described
above.

5.9 In order to document the fate of affected Indiana bats during
hibernation, the applicant shall coordinate with the Service to design
and conduct a study to determine the source hibernacula of Indiana bats
that will be impacted by the project. Efforts should include stable
isotope analysis and providing banding information to individuals
conducting hibernacula surveys. Other tracking methods may also be used
to accomplish this objective. Study plans shall be submitted to the
Service within one year of the date that this biological opinion is
issued, and at least 45 days prior to the initiation of the study.
Studies shall begin no later than the second hibernation period after
the project is initiated. Study plans may be modified or discontinued
with concurrence of the Service based on the results of previous years'
surveys.

5.10 The applicant shall monitor bat boxes constructed and installed as
outlined in the Biological Assessment (Apogee Environmental Consultants,
2004b). The bat boxes shall be monitored and maintained for the life of
the project, and findings shall be reported in accordance with 5.11
below. Monitoring shall be conducted by annually inspecting each box at
least twice per sampling period for signs of bat usage (fecal matter,
bats present, etc.). If a box shows signs of Indiana bat usage, that box
shall be monitored consistent with the protocols for roost tree
monitoring as defined in 5.8.

5.11 The applicant shall notify the Service and the WVDNR within 5 days
of the capture of each Indiana bat. Field data relative to captures and
observations of the Indiana bat shall be reported regularly to the
Service in an informal manner as notable events occur. An annual report
of all findings regarding the Indiana bat including raw data shall be
furnished to the Service with copies to the Corps, WVDEP and the WVDNR
no later than January 15 following each monitoring year. This report
shall include all data gathered during the study season, methods, data
analysis, and a description of the mining, reclamation, and monitoring
planned for the next year. In order to ensure compliance with the
established level of incidental take, the applicant shall also document
the amount of roosting and foraging habitat (in terms of the forested
acres and feet of stream impacted) that was disturbed the previous year,
and any stream or forestland reclamation efforts that were implemented
that year. Contact information for the Service and the WVDNR, as well as
reporting requirements for the discovery of dead or moribund bats is
found under 8.3.

5.12 Study plans may be modified with written concurrence of the Service
based on the results of the previous years' efforts.

***RPM 6: Monitor water quality and biotic health of streams within the
action area to quantify the amount and type of take of Indiana bats.***

*This RPM was initiated during 2005 and will continue to remain in
effect for the life of the project.*

Indiana bats are known to concentrate foraging behavior around streams
and riparian areas (Hobson, 1993; 3D/International, Environmental Group,
1995). Streams provide an important source of prey for Indiana bats
(Whitaker 2004). Aquatic benthic organisms are susceptible to changes in
water quality. The final programmatic environmental impact statement on

mountaintop mining/valley fills in Appalachia (U.S. Environmental
Protection Agency 2005) macroinvertebrate study showed that the EPT
index (an index of combined orders Ephemeroptera, Plecoptera, and
Trichoptera) was significantly lower in stream portions below some
valley fills than in reference streams. The draft EIS also showed
increased concentrations of numerous chemical parameters downstream of
some valley fills. If biological and chemical degradation results from
the proposed project, this could reduce the amount of Indiana bat prey
that are produced by remaining streams in the action area, causing bats
to spend increased energy foraging greater distances from their roosts;
or cause adverse impacts to foraging Indiana bats from exceeding toxic
thresholds through food chain bioaccumulation of aquatic insects. Water
quality and biotic monitoring will assist in determining the cause and
effect of any observed adverse effects to Indiana bat prey base, and
allow appropriate, focused, remedial measures to be developed and
implemented. The applicant has initiated monitoring as required in 6.1
below.

[RPM 6: Terms and Conditions]{.underline}:

6.1 The applicant shall monitor water quality within the mainstem of
Sandlick Creek and its tributaries over the life of the project,
beginning the first season after permit issuance (2005). Such monitoring
shall be conducted twice annually, with results reported to the Service
annually concurrently with the reporting requirement under 5.11.
Monitoring shall occur once annually during each of the following time
periods: February 15 -- April 15, and October 15 -- December 15.
Monitoring shall include the following: full metal suite, pH, dissolved
solids, total suspended solids, specific conductance, alkalinity,
potassium, acidity, and nitrate/nitrite. Water quality samples shall be
collected and analyzed using procedures outlined in the most recent
version of Standard Methods for the Examination of Water and Wastewater
(Greenburg et al. 1992). Detection limits shall be at or below the
chronic aquatic life water quality criterion for each parameter.

6.2 The applicant shall conduct bio-monitoring of the mainstem of
Sandlick Creek and its tributaries, at the same stations used for water
quality monitoring (as specified in 6.1, above), over the life of the
project, beginning the first season after permit issuance.
Bio-monitoring shall be conducted in accordance with Rapid Bioassessment
Protocols and/or the methods used in Green and Childers (2000).
Monitoring shall occur once during February 15 -- April 15, and once
during October 15 -- December 15, concurrently the water quality
monitoring. Results of this effort shall be reported simultaneously with
water quality monitoring results. A detailed protocol shall be submitted
to the Service for review and concurrence prior to initiation of the
sampling.

6.3 Any water quality degradation below state and federal water quality
standards and remedial actions taken shall be described in the annual
report.

6.4 The applicant shall submit a water quality monitoring and
bio-monitoring report to the Service, WVDEP and the Corps annually by
January 15 of each year. In addition to the results of the previous
years' monitoring, the report shall include a discussion as to the
condition of the streams as compared to the baseline condition described
in this biological opinion and the applications for the Clean Water Act
section 404/surface mine permits. Also, the report shall

include a summary that compares these results to any information
regarding Indiana bat habitat usage throughout the area (as determined
by RPM 5 above).

5.  The applicant shall conduct water quality and bio-monitoring
    sampling as described in 6.1 and 6.2 at ten sampling stations in the
    following locations as described in the Alliance Consulting (2003)
    section of the August 2003 Laxare East Surface Mine application for
    the Corps of Engineers' permit.

-   ER 20: mouth of Long Branch of Sandlick Creek

-   ER 21: Sandlick Creek downstream of Orchard Branch

-   ER-24 (Orchard Fork off Sandlick)

-   ER 26: Sandlick Creek upstream of unnamed Tributary 1200

-   ER 28A: left descending fork of Sandlick Creek

-   ER 29A: Sandlick Creek -- 0.3 miles upstream of ER 28C

-   ER 52: mouth of Sandlick Creek

-   ER 31: mouth of right descending branch of Sandlick Creek

-   ER-58 (new point in Sandlick below Long Branch. Not in the Potesta
    report. Completes coverage of Sandlick)

-   One additional station to be selected based on the results of
    surveys conducted under RPM 2.

6.6 The bio-monitoring plan may be modified with written concurrence of
the Service based on the results of the Indiana bat habitat use
monitoring.

***RPM 7: In order to ensure that no hibernacula will be impacted by the
project, the permit area and adjacent areas shall be surveyed to
determine whether any winter habitat is present.***

*This RPM has been completed.*

Indiana bats use caves or old mine portals for winter hibernacula. In
order to ensure that take does not exceed the Incidental Take Statement
due to removal of any winter hibernacula, a survey for old mine portals
or caves in the Laxare East and Black Castle permit areas is necessary.
Deep mines constructed before the 1977 Surface Mine Control and
Reclamation Act (SMCRA) were often not mapped so reliance on old mine
maps for potential deep mines is not sufficient. Because blasting could
damage old portals that occur an unknown distance from the blast site,
it is necessary to include in the survey adjacent areas within 1000 feet
of the permit boundaries. The area that was proposed to be logged in
preparation for mining in 2004 was surveyed in the early spring of 2004
and the information from that survey was considered in our biological
opinion. This area does not need to be resurveyed.

[RPM 7: Terms and Conditions]{.underline}:

> 7.1 Prior to project initiation, the applicant shall survey the permit
> area and adjacent areas within 1000 feet of the permit boundaries for
> potential Indiana bat hibernacula either on foot or by vehicle, during
> late fall to early spring when portals or caves would be the most
> visible.
>
> Any open portals or caves shall be evaluated by a qualified bat
> surveyor (as defined in 5.2) using the Phase I portal survey form. The
> completed forms shall be provided to the Service for review within 30
> days. The Service will determine at that time whether additional
> surveys, such as mist net or harp trap surveys, of the openings are
> warranted. If they meet criteria, a bat survey of the portals shall be
> conducted according to protocols to be provided by the Service in
> order to determine bat use of the portals. Any portals that are
> located shall not be disturbed or modified until it is determined that
> they are not being used by listed bats. If listed bats are discovered
> to be using the permit area or adjacent areas as winter habitat,
> consultation must be reinitiated.

***RPM 8: Implementation of these minimization measures shall be ensured
by training all project personnel as appropriate, allowing the Service
to inspect the project, and promptly reporting any Indiana bat finds.***

*This RPM will continue for the life of the project.*

The Corps, WVDEP, and the applicant have the responsibility to ensure
that all RPMs and their associated terms and conditions are fully
implemented over the life of the project, and that the permitted level
of take is not exceeded. Unless workers on-site are familiar with the
terms of the BO and the presence of the bat, they may inadvertently
engage in actions that would adversely impact the bat in violation of
the terms and conditions of the BO. The opportunity for periodic
inspections will further ensure the terms and conditions are enforced.
Established procedures for reporting any dead or injured bats will
assist in accurately monitoring the level of take.

[RPM 8: Terms and Conditions]{.underline}:

1.  In order to ensure compliance with these terms and conditions, the
    applicant shall instruct all personnel operating within the permit
    area and their supervisors as appropriate about the requirements and
    restrictions identified within, or developed as required by, the
    terms and conditions of this BO before construction begins. These
    requirements and restrictions shall be placed as special provisions
    in contract specifications and described in any work manuals as
    appropriate.

2.  Employees of the Service and the WVDNR shall be granted right of
    access to the project at any reasonable time and with reasonable
    notice for the inspection and monitoring of the terms and conditions
    of this BO.

3.  In the event that direct mortality of bats is detected or that dead,
    injured, or moribund bats are found, the following procedures shall
    be followed:

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a.  Throughout the duration of the project, the licensee, their
    designee, or the approved bat surveyor shall notify the Service and
    the WVDNR regarding the discovery, and the circumstances surrounding
    the discovery, of any dead, sick, or injured Indiana bat or other
    bat where the species determination is unclear.

b.  The Service Law Enforcement Officer (Special agent, Charleston, WV
    304-965-6059), Project Leader (West Virginia Field Office, Elkins,
    WV 304-636-6586; fax 304-636-7824), and the WVDNR (Scientific
    Collecting Permit Coordinator or the Endangered Species Coordinator,
    Wildlife Diversity Program, Elkins, WV, 304-637-0245; fax
    304-637-0250) shall be notified within 4 hours of discovery of an
    injured Indiana bat, and within 24 hours of a dead Indiana bat.

c.  In conjunction with the proper preservation of any dead specimen(s),
    the licensee, their designee, or the approved bat surveyor shall
    attempt to insure that evidence intrinsic to determining the cause
    of death of the specimen is preserved to the maximum extent
    practicable. Within five calendar days of the discovery of any dead,
    sick, or injured bat, the licensee, their designee, or the approved
    bat surveyor shall provide any known information to the Service
    describing the circumstances, location, et cetera, of any such
    discovery, and the measures specific to the incident, if any, that
    were taken to avoid injury or death.

The reasonable and prudent measures, and their implementing terms and
conditions, are designed to minimize the impact of incidental take that
might otherwise result from the proposed action. If during the course of
the action, the numerical or narrative levels of incidental take are
exceeded (see Table 16), such incidental take represents new information
requiring reinitiation of consultation and a review of the reasonable
and prudent measures provided.

**CONSERVATION RECOMMENDATIONS**

*\[The following paragraph supplements the Conservation Recommendations
section of the 2005 BO, pp. 116-117 BO.\]*

The Service currently has no additional conservation recommendations,
beyond those described in the 2005 BO. In order for the Service to be
kept informed of actions minimizing or avoiding adverse effects or
benefiting listed species or their habitats, the Service requests
notification of the implementation of any of the previously made
conservation recommendations.

**REINITIATION NOTICE**

*\[The following replaces the Reinitiation of Formal Consultation
section in the 2005 BO, pp. 117-118.\]*

As required by 50 CFR 402.16, reinitiation of formal consultation is
required where discretionary federal agency involvement or control over
the action has been retained (or is authorized by law) and if: (1) the
amount or extent of incidental take is exceeded; (2) new information
reveals effects of the agency action that may affect listed species or
critical habitat in a manner or to an extent not considered in this
opinion; (3) the action is subsequently modified in a manner that causes
an effect to the listed species or critical habitat not considered in
this opinion; or (4) a new species is listed or critical habitat is
designated that may be affected by the

action. In instances where the amount or extent of incidental take is
exceeded, any operations causing such a take must cease pending
reinitiation.

Examples of situations that may require the need to consider
reinitiation of consultation, include, but are not limited to:

1.  No evidence of Indiana bat activity within the action area (capture
    no bats; no bats are seen emerging from known roost trees;
    acoustical monitoring detects no Indiana bats) is found after the
    end of one full years' monitoring season.

2.  The results of emergence counts (as described in RPM 5.8) decline to
    less than 60 bats (including adults and young) for two successive
    years, indicating a colony size decrease of greater than 20% from
    the current maximum emergence count of 73 bats (adults and young).

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1.  Indiana bats are found to be using portals within a 5-mile radius of
    the project area.

In addition to standard reinitiation triggers identified above in the
first paragraph , if any of the examples listed above as bulleted items
occur, then the action agencies and the applicant shall contact the
Service to discuss the possibility of reinitiating consultation,
including a discussion of whether the take level has possibly been
exceeded, and/or whether new information reveals effects of the action
that were not considered in this BO. This discussion should also include
whether the monitoring results indicate that the monitoring plan should
be revised.

This concludes formal consultation on the action outlined in the Corps'
and WVDEP's request. No further section 7 consultation on these projects
will be necessary except if any reinitiation criteria are met.

The Service appreciates the opportunity to work with the Corps, WVDEP,
and Massey Energy Company in fulfilling our mutual responsibilities
under the Endangered Species Act. Please contact me at (304) 636-6586
extension 12, if you have any questions about this opinion.

Sincerely,

Thomas R. Chapman

Field Supervisor

**LITERATURE CITED**

Alliance Consulting, Inc. 2003. Supplemental information -- August 2003.
Application for U.S. Army Corps of Engineers section 404 individual
permit (Public Notice No. Morgan Branch 2000300886), Laxare East Surface
Mine. Prepared for Elk Run Coal Company, West Virginia. Cd-rom.

Apogee Environmental Consultants, LLC. 2006. Summer monitoring for the
federally endangered Indiana bat (*Myotis sodalis*) near known maternity
colony trees, Boone County, West Virginia. January 2006. Report
submitted to U.S. Fish and Wildlife Service and Black Castle Mining
Company, Uneeda, West Virginia. 44 pp. plus appendices and maps.

Apogee Environmental Consultants, LLC. 2004a. A review of Indiana bat
monitoring on Laxare (Permit No. SMA S-5012-00) and Black Castle Contour
(Permit No. SMA S-5023-00) Permits, Boone County, West Virginia.
Unpublished report prepared for Massey Energy, Inc., West Virginia. 5p.

Apogee Environmental Consultants, LLC. 2004b. A biological assessment
for the federally endangered Indiana bat (*Myotis sodalis*) at a
proposed surface mine area in Boone County, West Virginia. Unpublished
report prepared for Black Castle Mining Company, Uneeda, West Virginia;
and U.S. Fish and Wildlife Service, Elkins, West Virginia. 26p. +
appendices.

Britzke, E.R., M.J. Harvey, and S.C. Loeb. 2003. Indiana bat, *Myotis
sodalis*, maternity roosts in the southern United States. Southeastern
Naturalist 2: 235-242.

Butchkoski, C. M. and J.D. Hassinger. 2002. Ecology of a maternity
colony roosting in a building. *In* Kurta A., and J. Kennedy, eds. The
Indiana bat: biology and management of an endangered species. Bat
Conservation International, Austin, Texas.

Callahan. E.V., R.D. Drobney, and R.L. Clawson. 1997. Selection of
summer roosting sites by Indiana bats (*Myotis sodalis*) in Missouri.
Journal of Mammalogy. 78: 818-825.

Clark, B.K., J.B. Bowles, and B.S. Clark. 1987. Summer status of the
endangered Indiana bat in Iowa. American Midland Naturalist. 118: 32-39.

Farmer, A., B. Cade, and D. Stauffer. 1997. A habitat suitability index
model for the Indian bat (*Myotis sodalis*). Unpublished report prepared
for U.S. Department of Interior, Geological Survey, Mid-Continent
Ecological Science Center, Fort Collins, Colorado. 14p.

Garner, J.D., and J.E Gardner. 1992. Determination of summer
distribution and habitat utilization of the Indiana bat (*Myotis
sodalis*) in Illinois. Unpublished report prepared for Illinois
Department of Conservation, Division of Natural Heritage, and Illinois
Natural History Survey, Center for Biogeographic Information. 23p.

Greenburg, Arnold E., Lenore S. Clesceri and Andrew D. Eaton. 1992.
Standard Methods For The Examination Of Water And Wastewater. Prepared
and published jointly by: American Public Health Association, American
Water Works Association and Water Environment Federation. Washington,
D.C.

Green, J., and H. Childers. 2000. A survey of the condition of streams
in the primary region of mountaintop mining/valley fills. U.S.
Environmental Protection Agency, Wheeling, WV.

Gumbert, M.W., J.M. O\'Keefe, and J.R. MacGregor. 2002. Roost fidelity
in Kentucky. Pages 143-152 *In* Kurta A., and J. Kennedy, eds. The
Indiana bat: biology and management of an endangered species. Bat
Conservation International, Austin, Texas. 253p

Hobson, C. S. 1993. Status, distribution, and summer ecology of bats in
western Virginia: a survey for the endangered Indiana bat, *Myotis
sodalis*. Unpublished report prepared for Virginia Department of Game
and Inland Fisheries, Non-game Division, Richmond, Virginia. 18p.

Humphrey, S.R., A.R. Richter and J.B. Cope. 1977. Summer habitat and
ecology of the endangered Indiana bat, *Myotis sodalis.* Journal of
Mammalogy. 58: 334-346.

King, A. 12 January 2006. Personal communication. Biologist. U.S. Fish
and Wildlife Service. Indiana Ecological Services Field Office.
Bloomington, IN.

Kurta, A. 2004. Roosting Ecology and Behavior of Indiana Bats (*Myotis
sodalis*) in Summer. *In* The Proceedings of the Indiana bat and coal
mining: a technical interactive forum (K.C. Vories and A. Harrington,
eds.). Office of Surface Mining, U.S. Department of the Interior, Alton,
Illinois.

Kurta, A., S.W. Murray, and D.H. Miller. 2002. Roost selection and
movements across the summer landscape. *In* Kurta A., and J. Kennedy,
eds. The Indiana bat: biology and management of an endangered species.
Bat Conservation International, Austin, Texas.

LaVal, R.K., and M.L. LaVal. 1980. Ecological studies and management of
Missouri bats, with emphasis on cave-dwelling species. Terr. Ser. 8.
Missouri Department of Conservation, Jefferson City, Missouri. 53 p.

Sammons, T. R. 2006. Letter (dated January 6, 2006) to the Colonel
William Bulen, U.S. Army Corps of Engineers, Huntington District, West
Virginia, regarding a request by the U.S. Fish and Wildlife Service to
the Corps for additional information needed to complete the revised
biological opinion for the Black Castle/Laxare Surface mines. 2 pp. plus
enclosures.

3D/International, Environmental Group. 1995. Literature summary and
habitat suitability index model: components of summer habitat for the
Indiana bat, *Myotis sodalis*. Unpublished report submitted to Indiana
Department of Natural Resources, Division of Natural Resources,
Bloomington, Indiana. 190p.

U.S. Department of the Interior, Fish and Wildlife Service. 2005.
Biological Opinion on the Impacts of the Laxare East & Black Castle
Contour Coal Mining Projects on the Indiana Bat; February, 2005. West
Virginia Field Office, Elkins, West Virginia.

U.S. Environmental Protection Agency. 2005. Mountaintop mining/valley
fills in Appalachia: final programmatic environmental impact statement
(Final PEIS). EPA 9-03-R-05002. Philadelphia, Pennsylvania.

U.S. Environmental Protection Agency. 2003. Mountaintop mining/valley
fills in Appalachia: draft programmatic environmental impact statement.
Appendix A-D, EPA 9-03-R-00013. Philadelphia, Pennsylvania.

West Virginia Division of Natural Resources. 2005. Federal assistance
performance report, endangered species (animals), project E-1, segment
22 (1 October 2003 - 30 September 2004). Project 1 (Endangered,
threatened, and candidate bat species). 17 pp.

West Virginia Division of Natural Resources. 2006. Federal assistance
performance report, endangered species (animals), project E-1, segment
22 (1 October 2004 - 30 September 2005). Project 1 (Endangered,
threatened, and candidate bat species). 16 pp.

Whitaker, J.O., Jr. 2004. Prey selection in a temperate zone
insectivorous bat community. Journal of Mammalogy 85:460-469.

Whitaker, J.O., Jr., and V. Brack, Jr. 2002. Distribution and summer
ecology in Indiana. *In* Kurta A., and J. Kennedy, eds. The Indiana bat:
biology and management of an endangered species. Bat Conservation
International, Austin, Texas.

cc:

Project File

Reader File

ES:WVFO:BDouglas:skd:3/9/2006

Filename:
/media/pszemraj/PeterTrove/project-files/DATA/ms-word-files/big-DOC/923144.doc

[^1]: No entry for a cell represents no data. If surveys were conducted
    and no Indiana bats were documented, the value is "0".

[^2]:
    > Based on those factors, we have determined that a 20% decrease in
    > population in two consecutive years would signify a level of
    > population decline that is much greater than the anticipated level
    > of project impacts alone as described in this supplemental BO, and
    > further, could not be reasonably accounted for by anticipated
    > project impacts plus any yearly population fluctuations.
    > Therefore, documentation of such decreases indicates the need to
    > consider reinitiation of consultation to assess this level of
    > population reduction.