\(614\) 469-6923/ FAX (614) 469-6919

December 28, 2005

Devela Clark

Acting District Ranger

Wayne National Forest

13700 US Hwy 33

Nelsonville, OH 45764

Dear Mr. Clark:

This letter is in response to your December 22, 2005, request for
site-specific review, pursuant to section 7 of the Endangered Species
Act of 1973, as amended, regarding the proposed Burr Oak No. 6 Mine in
Monroe Township, Perry County on the Athens Ranger District of the Wayne
National Forest (WNF). The proposed coal mining activities on the WNF
include excavation of the entrance pit for the underground mine,
construction of a sediment pond, construction of the main access road
and coal beltway, and construction of a secondary haul road. The overall
project will impact approximately 8.5 forested acres. This review
represents a Tier 2 consultation, as explained below.

On September 20, 2001, the U.S. Fish and Wildlife Service (Service)
issued a programmatic biological opinion (PBO) for the Wayne National
Forest Land and Resource Management Plan (Forest Plan). This PBO
established a two-tiered consultation process for Forest Plan
activities, with issuance of the programmatic opinion being Tier 1 and
all subsequent site-specific project analyses constituting Tier 2
consultations. Under this tiered process, the Service will produce
"tiered" biological opinions when it is determined that site-specific
projects are likely to adversely affect federally listed species. When
may affect, not likely to adversely affect determinations are made, we
will provide written concurrence and section 7(a)(2) consultation will
be considered completed for those site-specific projects.

In issuing the PBO (Tier 1 biological opinion), we evaluated the effects
of all Forest Service actions outlined in your Biological Assessment on
the Federally listed Indiana bat (*Myotis sodalis*), bald eagle
(*Haliaeetus leucocephalus*), American burying beetle (*Nicrophorus
americanus*), northern monkshood (*Aconitum noveboracense*), running
buffalo clover (*Trifolium* *stoloniferum*), small whorled pogonia
(*Isotria medeoloides*), Virginia spiraea (*Spiraea virginiana*),
fanshell mussel (*Cyprogenia stegaria*), and the pink mucket pearly
mussel (*Lampsilis abrupta*). We concurred with your determinations of
not likely to adversely affect for northern monkshood (*Aconitum
noveboracense*), running buffalo clover (*Trifolium* *stoloniferum*),
small whorled pogonia (*Isotria medeoloides*), Virginia spiraea
(*Spiraea virginiana*), fanshell mussel (*Cyprogenia stegaria*), and the
pink mucket pearly mussel (*Lampsilis abrupta*). We also concurred with
your determination of likely to adversely affect for Indiana bat
(*Myotis sodalis*), bald eagle (*Haliaeetus leucocephalus*), and
American burying beetle (*Nicrophorus americanus*).

Your current request for Service review of the Burr Oak No. 6 Mine is a
Tier 2 consultation under the September 20, 2001, PBO. We have reviewed
the information contained in the Biological Evaluations (BEs), submitted
by your office on December 22, 2005, describing the effects of the
proposed project on federally listed species. You have indicated that
the proposed action will have no effect on the fanshell mussel
(*Cyprogenia stegaria*), pink mucket pearly mussel (*Lampsilis
abrupta*), bald eagle (*Haliaeetus leucocephalus*), northern monkshood
(*Aconitum noveboracense*), and Virginia spiraea (*Spiraea virginiana*),
and thus, consultation is not required for these species for this
project. We concur with your determination that the action may affect,
but is not likely to adversely affect the American burying beetle
(*Nicrophorus americanus*), running buffalo clover (*Trifolium*
*stoloniferum*), and small whorled pogonia (*Isotria medeoloides*).

We concur with your determination that the action is likely to adversely
affect the Indiana bat (*Myotis sodalis*). As such, this review focuses
on determining whether: (1) this proposed site-specific project falls
within the scope the Tier 1 PBO, (2) the effects of this proposed action
are consistent with those anticipated in the Tier 1 PBO, and (3) the
appropriate terms and conditions associated with the reasonable and
prudent measures identified in the Tier 1 PBO are adhered to.

That is, this letter serves as the Tier 2 biological opinion for the
proposed Burr Oak No. 6 Mine. As such, this letter also provides the
level of incidental take that is anticipated and a cumulative tally of
incidental take that has been authorized and exempted under the PBO.

[Description of the Proposed Action]{.underline}

Pages 3-7 of your Wildlife BE and pages 1-6 of your Botanical BE include
the location and a thorough description of the proposed action. The
proposed coal mining activities on the WNF include clearing and grubbing
8.5 acres, constructing the main access road (50 ft by 250 ft) and
secondary haul road (20 feet by 1,200 feet), construction of a sediment
pond and diversion ditches (0.44 acres), excavation of the entrance pit
for the underground mine, seeding and mulching all disturbed areas with
native grasses, mining activities (for 30 years), reclamation with
native hardwood species, and monitoring the reclamation. The action as
proposed will remove 8.5 forested acres on the WNF. All tree removal
will occur between September 15 and April 15 and a 25 foot forested
buffer will be maintained along the unnamed tributary (Stream 1) to
Dotson's Creek.

[Status of the Species]{.underline}

Species descriptions, life histories, population dynamics, status and
distributions are fully described on pages 11-14 for the Indiana bat in
the PBO and are hereby incorporated by reference. The closest known
summer occurrence for the Indiana bat is 12.1 miles southwest of the
proposed project. Fall swarming surveys detected a female Indiana bat at
Monkey Hollow, approximately 11 miles from the proposed project site.
Surveys specifically for this project occurred in 2004; no Indiana bats
were captured. Since issuance of the Service's PBO, additional surveys
of the abandoned limestone mine in Lawrence County recorded 208 Indiana
bats using the mine in 2003 and 333 Indiana bats in 2005. Rangewide
status estimates of the Indiana bat based on hibernacula censuses in
2005 are up slightly from 2001 and 2003 at about 458,332 bats.

[Environmental Baseline]{.underline}

Since the issuance of the PBO in 2001, the environmental baseline in the
WNF has changed due to two notable events: 1) In February 2003, a major
ice storm damaged over 47,000 acres of the WNF in the Ironton District.
The storm damage to trees included: uprooting, splitting in two, and
entire tree tops breaking off. The ice storm created a tremendous amount
of new Indiana bat roosting habitat through creation of crevices and
splits and through increased exfoliating bark through tree death;
therefore, use of the area by Indiana bats is expected to remain stable
or increase into the future, and 2) the completion of a consultation on
the U.S. 33 Nelsonville Bypass Project in the Athens Unit of the Athens
Ranger District that is expected to permanently remove 637 acres and
fragment an additional 1,050 acres of habitat, much of which occurs on
the WNF.

On the WNF, 7,827.51 acres have been applied towards your incidental
take, of which only 1,477.03 acres are for projects that have been
implemented. Much of this anticipated incidental take is for prescribed
fire projects.

An additional 48.2 acres of surface impact are anticipated on private
land in conjunction with the proposed Burr Oak No. 6 underground mine.
These impacts will be addressed through consultation with the U.S.
Office of Surface Mining and the state regulatory authority, Ohio
Department of Natural Resources- Mineral Resource Management.

[Effects of the Action]{.underline}

Based on our analysis of the information provided in your BE for the
Burr Oak No. 6 Mine, we have determined that the effects of the proposed
action are consistent with those contemplated in the PBO.

Adverse effects to the Indiana bat from this project could occur due to
the removal of potential roost trees. Although trees will be removed
when Indiana bats are typically in hibernation, impacts to the Indiana
bat may result in indirect effects due to loss of suitable roost trees.
In addition, the proposed project will result in the loss of foraging
habitat for at least 30 years. Although impacts may not be avoided,
implementation of the terms and conditions associated with the
reasonable and prudent measures (RPMs) provided on pages 36-40 in the
programmatic biological opinion will minimize adverse effects. More
specifically, the WNF will adhere to term and condition numbers 5, and 7
for this project. Additional protection and enhancement measures such as
providing a forested stream buffer zone and reclaiming with native grass
and hardwood tree species will be implemented.

[Conclusion]{.underline}

We believe the proposed Burr Oak No. 6 Mine is consistent with the PBO.
After reviewing site specific information, including 1) the scope of the
project, 2) the environmental baseline, 3) the status of the Indiana bat
and its potential occurrence within the project area and surrounding
Wayne NF land, 4) the effects of the action, and 5) any cumulative
effects, it is the Service's biological opinion that this project is not
likely to jeopardize the continued existence of the Indiana bat.

[Incidental Take Statement]{.underline}

The Service anticipates that the proposed action will result in the
incidental take of 8.5 acres of forested habitat through activities
associated with underground coal mining. This anticipated level brings
the cumulative total of incidental take for the implementation of the
WNF's Forest Plan to 18.85 acres for mineral development. This level is
within the 25 acres of incidental take anticipated in the PBO through
September 2006 for this activity. As explained above, we determined that
this level of anticipated and exempted take of Indiana bats from the
proposed project, in conjunction with the other management actions taken
by the WNF pursuant to the PBO to date, is not likely to result in
jeopardy to the species (for further information, see pages 22-28 in the
PBO).

We understand that the Forest Service is implementing all pertinent
Indiana bat RPMs and implementing Terms and Conditions, specifically
conditions 5 and 7, stipulated on pages 36-40 of the PBO. These measures
will minimize the impact of the anticipated incidental take.

This fulfills your section 7(a)(2) requirements for this action;
however, should the proposed project be modified or the level of take
identified above be exceeded, the Forest Service should promptly
reinitiate consultation as outlined in 50 CFR 402.16. As provided in 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 continued implementation of the Wayne National Forest Land and
Resource Management Plan (as amended) and projects predicated upon it
may affect listed species in a manner or to an extent not considered in
this opinion; (3) the continued implementation of the Wayne National
Forest Land and Resource Management Plan (as amended) and projects
predicated upon it is subsequently modified in a manner that causes an
effect to Federally-listed species not considered in this opinion; or
(4) a new species is listed or critical habitat designated that may be
affected by the action. In instances where the amount or extent of
incidental take is exceeded, any operations causing such take must
cease, pending reinitiation. Requests for reinitiation, or questions
regarding reinitiation, should be directed to the U.S. Fish and Wildlife
Service's Reynoldsburg, Ohio Field Office.

We appreciate your continued efforts to ensure that this project is
consistent with all provisions outlined in the PBO. If you have any
questions regarding our response or if you need additional information,
please contact Sarena Selbo at extension 17.

> Sincerely,
>
> Mary M. Knapp, Ph.D.
>
> Supervisor

cc: Dan Schrum, Office of Surface Mining

Scott Stiteler, ODNR -- Mineral Resources Management