Endangered Species Act Section 7 Consultation

Final Programmatic Biological Opinion and Conference Opinion 

on the

United States Department of the Interior

Office of Surface Mining Reclamation and Enforcement’s

Surface Mining Control and Reclamation Act Title V Regulatory Program

U.S. Fish and Wildlife Service 

Ecological Services Program

Division of Environmental Review 

Falls Church, Virginia

October 16, 2020 
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Table of Contents

1 Introduction.......................................................................................................................3

2 Consultation History .........................................................................................................4

3 Background .......................................................................................................................5

4 Description of the Action...................................................................................................7

The Mining Process ..............................................................................................................8

4.1.1 Exploration ........................................................................................................................ 8

4.1.2 Erosion and Sedimentation Controls.................................................................................. 9

4.1.3 Clearing and Grubbing ....................................................................................................... 9

4.1.4 Excavation of Overburden and Coal................................................................................. 10

4.1.5 Underground Mining ....................................................................................................... 10

4.1.6 Surface Mining................................................................................................................. 11

4.1.7 Mining Through Streams.................................................................................................. 12

4.1.8 Backfilling, Grading, Excess Spoil, and Coal Mine Waste.................................................. 12

4.1.9 Steep-Slope Approximate Original Contour Variances..................................................... 13

4.1.10 Soils and Revegetation..................................................................................................... 14

4.1.11 Coal Haulage.................................................................................................................... 15

4.1.12 Coal Processing ................................................................................................................ 15

4.1.13 Coal Combustion Residue Placement............................................................................... 15

4.1.14 Bond Release ................................................................................................................... 16

Permitting ........................................................................................................................... 16

4.2.1 Permit Requirements....................................................................................................... 16

4.2.2 Permit Application Process and Service Coordination...................................................... 19

4.2.3 Permit Enforcement under State Regulatory Programs................................................... 23

4.2.4 Monitoring During Mining and Reclamation.................................................................... 25

Action Area ......................................................................................................................... 25

5 Approach to the Assessment ...........................................................................................26

Jeopardy Determination ............................................................................................................. 27

Adverse Modification Determination ......................................................................................... 28

6 Status of the Species and Critical Habitat......................................................................28

7 Environmental Baseline ..................................................................................................51

Climate Change .................................................................................................................. 51

Habitat Destruction and Modification ............................................................................... 53

Invasive Species .................................................................................................................. 55

Pollution.............................................................................................................................. 55

Harvest................................................................................................................................ 56

Mining ................................................................................................................................. 56

8 Effects of the Action ........................................................................................................60

Programmatic Approach .................................................................................................... 60
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Key Assumptions for the Effects Analysis.......................................................................... 60

Evaluation of the Programmatic Consultation Criteria .................................................... 62

8.3.1 Understanding the Scope................................................................................................. 62

8.3.2 Stressors .......................................................................................................................... 63

8.3.3 Minimizing Adverse Effects.............................................................................................. 67

8.3.4 Identifying and Screening Applicants ............................................................................... 69

8.3.5 Monitoring Effects........................................................................................................... 70

8.3.6 Monitoring and Enforcing Compliance............................................................................. 72

8.3.7 Modify the Action............................................................................................................ 74

Other Considerations.......................................................................................................... 75

8.4.1 Monitoring Requirements................................................................................................ 75

8.4.2 Vegetative Buffers ........................................................................................................... 76

8.4.3 Fill Placement in Streams................................................................................................. 76

8.4.4 Groundwater Quality....................................................................................................... 77

8.4.5 Revegetation.................................................................................................................... 77

8.4.6 Summary.......................................................................................................................... 78

Exposure and Response Analyses....................................................................................... 78

Cumulative Effects.............................................................................................................. 79

9 Conclusion .......................................................................................................................79

10 Incidental Take Statement ..............................................................................................82

Amount or Extent of Take Anticipated.............................................................................. 82

Reasonable and Prudent Measures.................................................................................... 83

Terms and Conditions ........................................................................................................ 83

11 Reinitiation Notice...........................................................................................................85

12 Literature Cited...............................................................................................................86
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1 INTRODUCTION

The Endangered Species Act of 1973 (ESA), as amended, requires Federal agencies to consult 

with the U.S. Fish and Wildlife Service (Service) to ensure their actions are not likely to 

jeopardize the continued existence of an endangered or threatened species or destroy or 

adversely modify designated critical habitat. The ESA also requires Federal agencies to confer 

with the Service on any agency action that is likely to jeopardize the continued existence of 

proposed species or result in the destruction or adverse modification of proposed critical habitat. 

Congress enacted the Surface Mining Control and Reclamation Act of 1977 (SMCRA) to 

establish a nationwide program to protect society and the environment from the adverse effects 

of surface coal mining and reclamation operations1. SMCRA was also designed to: assure that 

surface coal mining operations are not conducted where reclamation as required is not feasible, 

assure that surface coal mining operations are designed in a manner to protect the environment, 

assure that reclamation occurs as contemporaneously with mining as possible, and promote the 

reclamation of mined areas left without adequate reclamation prior to the enactment of SMCRA.

1 In this document, shorthand terms such as “mining”, “coal mining”, and other similar uses of these terms all signify 

“surface coal mining andreclamation operations.”

The Federal action that is the subject of this consultation is the Office of Surface Mining 

Reclamation and Enforcement’s (OSMRE) implementation of Title V of the SMCRA, which 

includes the promulgation of implementing regulations; the direct implementation and

enforcement of the SMCRA regulations at 30 U.S.C. §§ 1201 et seq. in Federal program States 

and on Indian lands; and oversight of State regulatory programs with primacy, which includes 

oversight of State program compliance with requirements related to the protection and 

enhancement of proposed or listed species and proposed or designated critical habitats 

(hereinafter referred to as “OSMRE's implementation of Title V of SMCRA”). This action also 

includes implementation of two documents developed by OSMRE in consultation with the 

Service. The first is the SMCRA/ESA Coordination Process as Outlined in 30 C.F.R. §§ 780.16 

and 784.21 and Based on OSMRE’s Oversight Process (Appendix A), hereinafter referred to as 

the “SMCRA Coordination Process.” The second is the Dispute Resolution Process Relevant to 

Regulatory Authorities Coordinating SMCRA Permitting with the USFWS (Appendix B), 

hereinafter referred to as the “2020 DRP” (Appendix B).

OSMRE administers and enforces SMCRA on behalf of the Secretary of the Interior (Secretary). 

SMCRA sets forth minimum performance standards for environmental protection and public 

health and safety which apply to surface coal mining and reclamation operations, surface effects 

of underground coal mining operations, and surface coal mining in special areas or in special 

circumstances (such as steep slope mining). Persons who propose to conduct surface coal mining 

and reclamation operations (which include surface effects of underground mining by definition) 

must apply for and receive permits. Applications for permits must contain sufficient information 

to ensure that surface coal mining operations are designed and conducted in accordance with 

SMCRA and its implementing regulations, and applicants must post performance bonds in an 

amount that is sufficient to guarantee the completion of the reclamation plan if the work has to 

be performed by the regulatory authority in the event of forfeiture.

SMCRA establishes a program of cooperative federalism that allows a State or Indian Tribe to 

assume primary jurisdiction (primacy) over the regulation of surface coal mining and 

reclamation operations within its borders once its regulatory program has been approved by the
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Secretary. Among other things, SMCRA requires that a permanent regulatory program be in 

accordance with SMCRA and no less stringent than SMCRA and no less effective than the 

Federal regulations issued by the Secretary, in meeting the requirements of the Act (30 U.S.C. §§ 

1255; 1253(a)(1); 30 C.F.R. § 730.5).

OSMRE’s role under SMCRA does not end once it has approved a State or Tribal regulatory 

authority’s program. SMCRA gives OSMRE ongoing authority to oversee the effectiveness of 

the State or Tribal regulatory authority’s implementation of the approved program. OSMRE’s 

responsibilities in this area also include conducting inspections as necessary to evaluate the State 

or Tribal regulatory administration of its approved program. OSMRE retains enforcement 

authority for States and Tribes with primacy and is responsible for ensuring that the State or 

Tribal regulatory authority is effectively implementing, administering, maintaining, and 

enforcing their program.

2 CONSULTATION HISTORY

The following timeline describes key milestones between the OSMRE and the Service that 

inform this reinitiated consultation.

• On September 24, 1996, the Service issued the 1996 Biological Opinion (1996 

Biological Opinion) on implementation of OSMRE’s current SMCRA regulations.

• On December 16, 2016, OSMRE and the Service finalized the 2016 Memorandum of 

Understanding Regarding Improved ESA Coordination on Surface Coal Mining and 

Reclamation Operations (MOU),), and the Service finalized its Biological Opinion on 

OSMRE’s revised SMCRA regulations (known as the Stream Protection Rule).).

• On February 16, 2017, President Trump signed joint resolution, H.R. J. Res. 38, under 

the Congressional Review Act, 5 U.S.C. §§ 801 et seq., which disapproved the 2016 

revised SMCRA regulations, thereby eliminating the Federal action analyzed in the 

Service’s 2016 Biological Opinion.

• On April 13, 2017, OSMRE requested reinitiation of consultation on implementation of 

their current SMCRA regulations.

• On July 19, 2017, the Service, OSMRE, and Department met with the Interstate Mining 

Compact Commission (IMCC) to discuss the reinitiated consultation, (e.g., the purpose

of reinitiation and opportunities to improve implementation of the SMCRA program).

• During the week of October 16, 2018, OSMRE provided the IMCC with drafts of the 

documents (e.g., draft biological assessment) that would be used to support the 

reinitiated consultation. The IMCC provided OSMRE with comments on the draft 

documents on February 1, 2019. 

• On April 6, 2020, OSMRE provided a draft biological assessment to the Service.

• On April 22, 2020, the Service informed OSMRE that the draft biological assessment 

was sufficient to initiate formal consultation and provided OSMRE overarching 

comments on the draft biological assessment.
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• On April 23, 2020, the Director of the Service, Assistant Director of Ecological Services, 

Deputy Solicitor and OSMRE and Assistant Secretary for Lands and Mineral 

Management (ASLM) met to discuss comments on the draft biological assessment and 

next steps for the consultation.

• On April 24, 2020, after meeting with OSMRE to discuss concerns, the IMCC provided 

OSMRE with additional input on the draft biological assessment.

• On May 21, 2020, OSMRE provided supplemental information to the Service for the 

reinitiated consultation.

• Between June 10 and July 13, 2020, Service and OSMRE staff met weekly and 

corresponded via email to coordinate regarding various topics, such as the species list,

extent of the action area, and OSMRE’s proposed draft technical assistance and dispute 

resolution processes.

• On June 23, 2020, the Service and OSMRE met to understand key elements of 

OSMRE’s regulatory program under Title V of SMCRA.

• On July 9, 2020, OSMRE’s draft dispute resolution process was provided to the Service. 

The draft describes a proposed process by which OSMRE may engage, in the exercise of 

its oversight authority, in resolving disagreements between State regulatory authorities 

and FWS on, among other things, measures to minimize incidental take reasonably 

certain to occur from a proposed mining permit.

• On July 15, 2020, OSMRE provided the Service with an effects analyses for additional 

species.

• On July 16, 2020, the Service provided comments to OSMRE on the SMCRA regulatory 

process for technical assistance between State regulatory authorities and the Service and 

its dispute resolution process.

• On July 27, 2020, the Service and OSMRE met regarding the status of the reinitiated 

consultation.

• On August 26, 2020, OSMRE provided to the Service final descriptions of the technical 

assistance process between State regulatory authorities and the Service for implementing 

the coordination provisions contained in OSMRE’s regulations implementing Title V of 

SMCRA, as well as the final dispute resolution process for resolving any differences that 

may arise between the Service and State regulatory authorities through that technical 

assistance process. The description of the technical assistance process was revised and 

resubmitted to the Service via email on October 6, 2020. Both documents were described 

as addenda to OSMRE’s 2020 biological assessment, and are included as appendices in 

this document (Appendices A, B).

3 BACKGROUND

On September 24, 1996, the Service issued a final biological opinion on OSMRE’s regulations 

implementing Title V of SMCRA, completing the ESA Section 7 consultation between OSMRE 

and the Service. In December 2016, OSMRE finalized revisions to its SMCRA regulations, 

which constituted a change in the action and served as grounds for reinitiation of the Section 

7consultation previously completed in 1996.
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On December 16, 2016, the Service issued a final biological opinion on OSMRE’s 

implementation of Title V of SMCRA under the revised regulations, which superseded the 1996 

Biological Opinion. However, President Trump’s February 16, 2017 signing of joint resolution,

H.R. J. Res. 38, under the Congressional Review Act, 5 U.S.C. §§ 801 et seq., disapproved the 

2016 revised SMCRA regulations, thereby eliminating the Federal action analyzed in the 

Service’s 2016 Biological Opinion. As a result, OSMRE requested reinitiated consultation with 

the Service regarding its regulations implementing Title V of SMCRA on April 17, 2017.

In its April 2017 reinitiation request, OSMRE noted that “new information obtained by OSMRE 

in the intervening years since 1996 makes it appropriate to reinitiate consultation at this time,” 

and that “new species have been listed that may be affected by the SMCRA regulatory program.” 

In its reinitiation request, OSMRE also stated that during the reinitiated consultation, OSMRE 

would resume its reliance on the 1996 Biological Opinion.

This reinitiated consultation evaluates the effects to endangered and threatened species and their

designated critical habitats from OSMRE’s implementation of Title V of SMCRA, which include 

its regulations governing mining and reclamation activities. Our analysis also addresses species 

proposed for listing and proposed critical habitat. Although conferencing on proposed species 

and critical habitat is not required under the ESA when the action is not likely to jeopardize the 

continued existence of proposed species or destroy or adversely modify proposed critical habitat, 

the regulations implementing Title V of SMCRA include requirements specifically related to the 

protection and enhancement of proposed species and proposed critical habitat. Further, in the 

event that these proposed species are subsequently listed and/or critical habitat designated 

through final rulemakings, conference opinions may later serve as biological opinions, thus 

satisfying OSMRE’s obligations under ESA Section 7(a)(2). Thus, this document includes both 

the Service’s biological opinion on endangered and threatened species and designated critical 

habitat and our conference opinion on proposed species and proposed critical habitat.

In our Programmatic approach, we examine whether and to what degree OSMRE has structured 

its regulatory program to ensure its implementation is not likely to jeopardize the continued 

existence of proposed or listed species or result in the destruction or adverse modification of 

proposed or designated critical habitat. This programmatic biological opinion (Opinion) 

addresses surface impacts from coal mining on all ESA-listed and -proposed species and 

designated and proposed critical habitats. This Opinion assigns the 194 ESA-listed and proposed 

species and their proposed or designated critical habitats known to occur within regions of 

mineable coal in the U.S. to species guilds and analyzes response to surface coal mining and 

reclamation operations. Under this programmatic approach, proposed mining activities will 

undergo further evaluation through one of two pathways, depending upon whether the authority 

issuing the mining permit is OSMRE or the State or Tribal regulatory authority: 1) future section 

7 consultations with OSMRE on individual permit applications, renewals , and significant 

revisions where OSMRE is the permitting authority that tier off this programmatic consultation 

(hereafter, “step-down ESA section 7(a)(2) consultations); or 2) a technical assistance process 

with the Service where the State or Tribal regulatory authority has delegated authority in 

rendering mining permit decisions (i.e., the State or Tribal regulatory authority has “primacy”). 

Under the second pathway, SMCRA permit applications will be reviewed by the Service on a
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permit-by-permit basis through a technical assistance process among the Service, State or Tribal 

regulatory authority, and mine permit applicant as described in Section 4.2 on permitting and 

outlined in Appendix A. Throughout this document, we refer to the “regulatory authority, ” 

which, in some cases may apply to OSMRE (where OSMRE is the permitting authority), States 

(or Tribes) where they have primacy, or both, as appropriate.

4 DESCRIPTION OF THE ACTION

The proposed action is OSMRE’s continued implementation of Title V of SMCRA, and includes 

activities where OSMRE retains permitting authority, as well as where States and Tribes have 

primacy. States and Tribes may assume primary jurisdiction (i.e., primacy) over operations 

within their borders by developing a regulatory program, which the Secretary through OSMRE, 

has reviewed and approved as meeting the standards of SMCRA (30 U.S.C. § 1253). The 

proposed action also includes OSMRE’s oversight of State or Tribal programs, such as State or 

Tribal regulatory authority compliance with requirements related to the protection and 

enhancement of proposed or listed species and proposed or designated critical habitats. Title V of 

SMCRA is implemented, in part, through State regulatory programs in which States with 

programs approved by OSMRE directly regulate surface and underground coal mining and 

reclamation activities within their own borders. Currently, there are no Tribes that have achieved 

primacy, and no Tribe has submitted a proposal for primacy. However, in the event a Tribe does 

apply for primacy, the same processes explained in OSMRE’s biological assessment related to 

State program approval would be applied. Therefore, when the Service refers to “State regulatory 

program” it is also referring to any possible future “Tribal regulatory program.” This is 

consistent with 30 U.S.C. § 1300(j)(B) that provides in part, “any reference to a “State” in this 

Act shall be considered to be a reference to “[T]ribe.”

SMCRA authorizes OSMRE to establish regulatory standards that States or Tribes must 

incorporate in their programs in order to obtain primary regulatory authority. OSMRE’s 

regulatory standards that apply to primacy States has five major components: i) performance 

standards, ii) permitting requirements, iii) bonding requirements, iv) inspection and enforcement 

provisions, and v) restrictions on where mining may be conducted.

As required by section 504 of SMCRA, OSMRE directly regulates surface coal mining and 

reclamation operations in a State if the State does not submit and receive approval of its own 

program pursuant to section 503 of SMCRA. As of the date of this document, OSMRE operates 

Federal regulatory programs in 12 States (Arizona, California, Georgia, Idaho, Massachusetts, 

Michigan, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, and Washington), 

although only Tennessee has active surface mines (Washington has two approved permits, but 

both are in reclamation only status).

OSMRE is the regulatory authority on Federal and Indian lands. 30 U.S.C. § 1273(a) requires 

that the Secretary establish and implement a Federal regulatory program applicable to all surface 

coal mining and reclamation operations taking place on Federal lands. Federal lands are defined 

as “any land, including mineral interests, owned by the United States, without regard to how the 

United States acquired ownership of the lands or which agency manages the lands” (30 C.F.R. § 

700.5). Through cooperative agreements, the Secretary has delegated most regulatory 

responsibilities under this provision to States with approved regulatory programs. The Secretary
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has entered into cooperative agreements with 14 States to regulate coal on Federal lands 

(Alabama, Colorado, Illinois, Indiana, Kentucky, Montana, New Mexico, North Dakota, Ohio, 

Oklahoma, Utah, Virginia, West Virginia, and Wyoming). According to OSMRE, there is no 

significant mining on Federal lands in States without cooperative agreements.

Likewise, 30 U.S.C. § 1300 authorizes OSMRE to directly regulate all surface coal mining and 

reclamation operations on Indian lands. Currently, these operations include mines on the Navajo, 

Hopi, and Ute Mountain Ute reservations. On the Crow Ceded Area in Montana, OSMRE and 

the Montana Department of State Lands jointly administer applicable requirements. In 2006, 

SMCRA was amended to allow Indian Tribes the option of assuming part or all of the 

responsibility for the regulation of surface coal mining and reclamation operations on reservation 

lands, but, as of the date of OSMRE’s biological assessment, no Tribe had assumed this 

responsibility.

Thus, for now, all Indian lands are regulated under the Federal regulatory program. Nevertheless, 

any future approval of a Tribal regulatory program would be governed by the same standards 

applied to a State regulatory program because, in accordance with 30 U.S.C. §§ 1253(a)(1) & (7) 

and 1300(j), the administration and enforcement of any future Tribal regulatory program would 

be no less stringent than and no less effective than that of a Federal regulatory program.

Unless otherwise specified in this Opinion, “regulatory authority” refers to the definition in 

SMCRA: “[T]he department or agency in each State which has primary responsibility at the 

State level for administering the Act in the initial program, or the State regulatory authority 

where the State is administering the Act under a State regulatory program, or the Secretary in the 

initial or permanent program where the Secretary is administering the Act, or the Secretary when 

administering a Federal program or Federal lands program or when enforcing a State program 

pursuant to section 521(b) of the Act.”

The Mining Process

This section contains a general description of the mining process. It provides a basic 

understanding of the steps involved in coal removal and reclamation under Title V of SMCRA. 

For a more detailed description of the mining process, see the Description of the Action section 

in OSMRE’s biological assessment.

Both surface and underground mining occur in the area considered by this Opinion. Surface 

mining may occur in a variety of ways but the most common methods are contour mining, open 

pit mining, and area mining. The two most common underground mining methods are room-andpillar and longwall mining. Mining methods can vary between individual mines, but all share 

common site development activities.

4.1.1 Exploration 

Mining applicants may conduct exploration drilling or excavation to determine the location and 

quality of mineable coal. The Federal regulations also require that before an exploration permit 

to remove more than 250 tons of coal may be approved, it is subject to public notice and the 

opportunity to comment (30 C.F.R. § 772.12(c));. Before approving an exploration permit, the 

regulations promulgated pursuant to SMCRA require that the regulatory authority must find that 

the exploration and reclamation activities will not jeopardize the continued existence of an 

endangered or threatened species listed under the ESA or result in the destruction or adverse
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modification of critical habitat (30 C.F.R. § 772.12(d)(2)(ii)). Therefore, the SMCRA regulations 

require a more stringent standard than that required pursuant to the ESA to ensure against the 

“likelihood” of jeopardy.

Disturbance from exploration operations usually involves building of temporary roads and drill 

pads. Exploration operations that substantially disturb the natural land surface must comply with 

the performance standards at 30 C.F.R. § 772.13 and 30 C.F.R. Part 815. These regulations 

prohibit the disturbance of unique or unusually high value for fish, wildlife, and other related 

environmental values and critical habitats of threatened or endangered species during coal 

exploration operations that remove more than 250 tons. In addition, for Federally-owned coal, 43

C.F.R. § 3410.2-2(a)(2) specifies “No exploration license shall be issued if the exploration 

would... [j]eopardize the continued existence of a threatened or endangered species of fauna or 

flora or destroy or cause adverse modification to its critical habitat.”

Exploration roads are required to be constructed, maintained, and reclaimed to the same 

standards as roads used for other purposes and must not seriously alter the normal flow of water 

in streambeds or drainage channels. All disturbed areas are required to be revegetated and drill 

holes are required to be sealed. These requirements are enforced by the regulatory authority.

4.1.2 Erosion and Sedimentation Controls 

Erosion and sedimentation control structures are typically constructed in advance of any 

excavation for coal extraction purposes. Any number of erosion and sedimentation control 

structures are employed including, sedimentation ponds constructed to prevent pollution of 

receiving streams, and diversion ditches constructed to convey runoff from disturbed areas to the 

sedimentation ponds. Diversion ditches are also built around areas affected by mining to divert 

runoff from upslope areas to natural drainages. Permanent or temporary stream relocations are 

employed to reroute streams around the mine. These activities may change the hydrology of a 

site. Construction techniques for temporary diversion channels focus on stability; but are not 

required to focus on ecological functions. However, some regulatory authorities may address 

restoration of ecological function thorough requirements under the Clean Water Act. Permanent 

diversions are required to restore or approximate the premining characteristics of the original 

stream channel including the natural vegetative corridor to promote the recovery and the 

enhancement of the aquatic habitat. Additionally, a variety of approved, alternative sediment 

control measures that utilize the best technology currently available may be used. Examples 

include, silt fence, sediment traps, contour ditches, mulch, vegetation filters, and surface pitting.

Maintenance of sedimentation ponds may require removal of nuisance species (e.g. rodents, 

noxious weeds, trees) to maintain their structural integrity, and dredging of accumulated 

sediment to maintain storage capacity. Dredged materials are usually buried within the permit 

area. Ponds are removed or left as permanent structures if approved as part of the postmining 

land use. Sedimentation ponds are typically removed by breaching the pond’s dam in a 

controlled manner to prevent impacts to downstream waters. Permanently retained ponds are not 

monitored after final bond release; they are retained as habitat features for fish and wildlife or to 

provide water for livestock. The landowner must assume the responsibility for maintenance of 

the pond before the regulatory authority may approve its retention as a permanent structure.

4.1.3 Clearing and Grubbing

The removal of trees, stumps, shrubs, and other vegetation from the area to be mined allows for 

more efficient removal of any topsoil for later use in reclamation. The regulations do not
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specifically require reincorporation of plant debris accumulated from site clearing (for example 

non-merchantable trees, tree limbs, stumps and branches). As a result, these materials are often 

burned on-site. Topsoil is segregated by a bulldozer that typically removes the recoverable soil 

from mining areas to temporary stockpiles, which is seeded with fast-growing grass species that 

persist until the topsoil is needed for reclamation. Excess spoil disposal areas are cleared and 

grubbed to prepare the foundation to ensure stability prior to placement of fill.

4.1.4 Excavation of Overburden and Coal 

The removal of strata overlying the coal seams allows for removal of the uncovered coal. This 

mining phase can last for decades for large mines. The overlying strata (layers of overburden) are 

fractured by drilling and blasting, or by ripping with bulldozers. The void left after excavation is 

referred to as a mine pit. The overburden that is removed is known as spoil. As a result of the 

excavation process, this spoil material increases in volume because of the fracturing of rock 

strata, which results in the creation of many more voids. This bulking is commonly referred to as 

swell. In steep-slope areas, spoil that exceeds the amount required to restore the approximate 

original contour must be permanently placed in excess spoil fills constructed in the narrow 

valleys typical of steep-slope topography. These fills are known as valley fills or head-of-hollow 

fills. Where potentially acid-forming or toxic-forming overburden is encountered, this material 

requires special handling to segregate and bury it to isolate it from oxygen and/or water. Stream 

channels are sometimes mined through or diverted during excavation of the overburden and coal. 

Streams are sometimes covered by excess spoil fills.

Mountaintop removal mining, a subset of area mining, is defined as a surface mining operation 

that removes an entire coal seam or seams running through the upper fraction of a mountain, 

ridge or hill, creating a level plateau or gently rolling contour with no highwalls remaining. As 

the tops of mountains are removed, the spoil is placed in adjacent valleys below the coal seam 

being mined, filling them and burying any streams located in those valleys.

Permittees may extract coal from the final highwall using augers, highwall miners, and similar 

equipment.

Surface mines can employ any combination of these methods to maximize the coal recovery 

from a given land parcel.

4.1.5 Underground Mining

The two most common underground mining methods are room-and-pillar and longwall mining. 

Room-and-pillar mining leaves some coal in place to maintain the roof stability of the mine 

during extraction. These pillars temporarily support the rock immediately overlying the intact 

coal pillar plus some portion of the overlying rock previously supported by the excavated coal.

Surface disturbance and excavation are required to establish an underground mine’s operational 

facilities and gain access to the coal seam by way of portals, ramps, and/or shafts, and to 

construct ventilation shafts or degasification wells. During coal extraction, a portion of the strata 

above and below the coal seam may be removed with the coal. These materials, commonly 

referred to as coal refuse and/or gob, are separated from the coal during processing and 

permanently stored, most often at the surface in slurry impoundments or refuse piles.

4.1.5.1 Room-and-Pillar

Room-and-pillar mining involves the removal of blocks of coal (rooms) while leaving adjacent 

blocks of coal (pillars) arranged uniformly and large enough to permanently support the mine’s
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roof. Subsidence from modern room-and-pillar mining operations is not common and surface 

expression of subsidence is isolated when it does occur. Subsidence from room-and-pillar mining 

may occur when retreat mining is conducted. Retreat mining occurs when pillars left for support 

are removed as an operation leaves a mined area. Any subsidence from retreat mining is planned 

and intentional.

4.1.5.2 Longwall 

Longwall mining operations utilize specialized methods and equipment to safely remove large 

blocks of coal commonly referred to as panels. A typical longwall panel is 600 to 1,500 feet (183 

to 457 meters) wide and 1 to 3 miles (1.6 to 4.8 kilometers) long. Typically, longwall mining 

will—and other methods of underground mining may, depending on the competence of the 

overlying rock and the extent of pillars left as support—result in the subsidence of overlying 

strata after the coal is removed. Subsidence may reach the surface, depending upon the depth of 

the mine and the competence of rock strata between the underground workings and the surface. 

Subsidence that reaches the surface will alter the surface configuration and topography.

Underground mining also can dewater streams or diminish flows by fracturing strata that support 

perched aquifers or by draining aquifers to facilitate mining. The undulating surface expression 

between subsided and unsubsided reaches can greatly impact a stream’s geomorphology.

Subsided stream reaches commonly pond water immediately upstream of an unsubsided reach. 

These areas often require in-stream restoration work to reduce flooding and loss of land 

productivity (e.g., crop loss). If left unrestored, the unsubsided reaches typically down-cut over 

time through natural stream evolution processes resulting in erosive banks and increased 

downstream sediment deposition. Permittees are generally required to restore stream flows 

altered by longwall mining. SMCRA regulations only require correction of subsidence damage 

to the extent technologically and economically feasible. These localized hydrologic changes can, 

to some extent, be predicted (Newman et al., 2016). Buffer zones can be established between the 

stream and the longwall panel to prevent subsidence (Karmis et al. 2012). Longwall panels are 

typically mined out parallel to each other and separated by lengths of narrower underground 

“chain pillars.” Chain pillars are mined utilizing room-and-pillar methods and typically do not 

subside. 

4.1.6 Surface Mining

Surface mining includes various activities such as area and contour mining, as well as 

mountaintop removal. Area mining may occur within the entire width of a flat or gently sloping 

area, mountaintop, or ridge line, while contour mining may occur in rolling topography or in 

mountainous terrain. Area and contour mining, as well as mountaintop removal are described 

more fully in the biological assessment. For example, mountaintop removal mining operations 

are surface mining activities in which the mining operation removes an entire coal seam orseams 

running through the upper fraction of a mountain, ridge or hill by removing substantially all of 

the overburden off the bench and creating a level plateau or gently rolling contour, with no 

highwalls remaining. To obtain a permit for mountaintop removal mining operations, the 

proposed postmining land use must be a commercial, industrial, residential, agricultural, or 

public facility land use. The regulatory authority must find that the proposed postmining land use 

meets all requirements for alternative postmining land uses and is an equal or better economic or 

public use of the land compared to its premining use. The permit application must include
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specific plans for the proposed postmining land use, including assurance of investment in public 

facilities and documentation of private financial capability to ensure completion. The regulations 

do not require implementation of the approved postmining land use prior to final bond release.

The regulations also allow for variances, under certain conditions, from the requirement that land 

operations be returned to its approximate original contour for steep-slope mining operations.

The regulatory authority may approve a permit for a mountaintop removal mining operation only 

upon a demonstration that there would be no damage to natural watercourses below the lowest 

coal seam to be mined. Natural watercourses above the lowest coal seam mined are not protected 

from damage.

4.1.7 Mining Through Streams

The regulatory authority may approve diversion of perennial or intermittent streams within the 

permit area only after making the finding that the diversion would not adversely affect the water 

quantity and quality and related environmental resources of the stream. The applicant must 

design the diversion to minimize adverse impacts to the hydrologic balance within the permit and 

adjacent areas, prevent material damage to the hydrologic balance outside the permit area, and to 

assure the safety of the public. In addition, the applicant must design, locate, construct, maintain, 

and use the diversion to prevent, to the extent possible using the best technology currently 

available, additional contributions of suspended solids to streamflow outside the permit area.

Both the design and construction of stream-channel diversions for perennial and intermittent 

streams must be certified by a qualified registered professional engineer as meeting applicable 

performance standards and any design criteria established by the regulatory authority. The design 

for restored stream channels for perennial and intermittent streams (or permanent diversion 

channels for those streams) must restore or approximate the premining characteristics of the 

original stream channel, including the natural riparian vegetation. The design capacity for both 

temporary and permanent stream-channel diversions must at least equal the capacity of the 

unmodified stream channel immediately upstream and downstream of the diversion. While it is 

feasible to restore the form and function of stream segments that are mined through or 

permanently diverted as a result of mining, there is no requirement to restore ecologic function. 

In addition it may be difficult to restore ecologic function of certain high gradient streams and or 

high quality streams. As a result, biological resources may be negatively impacted.

4.1.8 Backfilling, Grading, Excess Spoil, and Coal Mine Waste 

After coal removal, mine pits are backfilled with spoil to restore the ground surface. Backfilling, 

also known as “backstacking” in steep-slope areas, may be accomplished by a variety of 

methods, including casting by draglines or shovels, cast blasting, dozer pushes, and truck 

haulage and dumping.

During these activities, spoil and waste are returned to the mined-out area (or placed in excess 

spoil fills in adjacent valleys), and graded as needed to achieve final reclamation contours. After 

spoil casting or haulage and dumping, spoil areas usually have a very irregular surface that may 

require grading to achieve a surface configuration that better resembles the natural land surface 

and that will support the postmining land use. Regrading of spoil is primarily accomplished by 

dozers, with the final site topography determined by the site reclamation plan and the approved 

postmining land use.
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The regulations require that a permit application include a plan for backfilling, soil stabilization, 

and compacting and grading. Contour maps or cross-sections must show the anticipated final 

surface configuration. The performance standards at 30 C.F.R. §§ 816.102, 816.104, 816.105, 

816.106, and 816.1072 require that disturbed areas be backfilled and regraded to closely resemble

the premining surface configuration, with exceptions for thin and thick overburden situations, 

previously mined areas, and certain other circumstances. The regulations allow permanent 

impoundments, including final-cut impoundments, provided they do not otherwise create 

conflicts with achieving approximate original contour and they meet the design, construction, 

maintenance, postmining land use, and other requirements in the regulations.

2 Throughout this document, reference is made to OSMRE’s regulations at 30 C.F.R. Part 816 about Permanent Program 

Performance Standards—Surface Mining Activities. Unless specifically exempted, when referring to these regulations OSMRE’s 

counterpart regulations about underground mining activities found at 30 C.F.R. Part 817 are also to be considered.

Except for mountaintop removal mining operations, sites with steep-slope variances, sites with 

thin or thick overburden, and a few other limited situations, the permittee must restore the 

approximate original contour.

There are situations, particularly in steep terrain, where the volume of spoil is more than 

sufficient to return the reclaimed land to approximate original contour or where stability 

concerns prevent the return of all spoil to the mined-out area when reclaiming the site. Surplus 

spoil material disposed of in locations other than the mined-out area, except for material used to 

blend spoil with surrounding terrain in achieving approximate original contour in non-steep slope 

areas, is referred to as “excess spoil.” In steep-slope terrain, the permittee may place the excess 

spoil either in adjacent valleys or on previously mined sites.

OSMRE and most State regulatory authorities allow the construction of excess spoil fills, refuse 

piles, slurry impoundments, and sedimentation ponds in all types of streams and their buffer 

zones. The regulations require that excess spoil fills be constructed by controlled placement of 

the excess spoil in lifts no greater than four feet thick, except that durable rock fills may be 

constructed by end-dumping, which is intended to result in the formation of underdrains by 

gravity segregation.

Although not expressly required by OSMRE regulations, most States with mining operations in 

steep-slope terrain have adopted policies intended to minimize the generation of excess spoil and 

thus reduce the need for (and size of) excess spoil fills, which in turn would reduce the length of 

stream covered by those fills. In addition, the agencies administering the Clean Water Act have 

implemented policies that have sharply reduced both the number of excess spoil fills and the 

length of stream covered by those fills. Furthermore, the regulations in 40 C.F.R. Part 230 for 

implementation of section 404(b)(1) of the Clean Water Act require an analysis of all practicable 

alternatives to placement of fill material in waters of the United States, which would include 

most streams. Under those regulations, the applicant must select the alternative with the least 

adverse effect on the aquatic ecosystem and mitigate any remaining adverse impacts on the 

aquatic environment.

4.1.9 Steep-Slope Approximate Original Contour Variances

Steep slopes are any slope of more than 20° or a lesser slope designated by the regulatory 

authority after consideration of soil, climate, and other characteristics of a region or State. To 

obtain an approximate original contour variance for steep-slope mining operations the proposed 

postmining land use must be of an industrial, commercial, residential, or public (including
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recreational facilities) nature. It also must meet the requirements for approval of alternative 

postmining land uses, which, among other things, means that the postmining use must be an 

equal or better economic or public use. The applicant must demonstrate that the proposed 

operation will improve the watershed when compared to either premining conditions or the 

conditions that would exist if the applicant restored the area to its approximate original contour 

after mining. The regulatory authority can concur that the operation would improve the 

watershed only if the operation would reduce the amount of total suspended solids or other 

pollutants discharged from the permit area to surface water or groundwater or reduce the flood 

hazards within the watershed by a reduction of the peak-flow discharge from precipitation events 

or thaws. See 30 C.F.R. § 785.16. In both cases, the total volume of flow from the proposed 

permit area during every season of the year must not vary in a way that adversely affects the 

ecology of any surface water or any existing or planned use of surface water or groundwater.

4.1.10 Soils and Revegetation 

Under the regulations, the permittee must restore all disturbed areas to a condition that is capable 

of supporting the uses the land was capable of supporting before any mining or higher or better 

uses. The permittee must salvage and redistribute all topsoil (the A and E soil horizons). If 

topsoil is of insufficient quantity or of poor quality for sustaining vegetation, selected overburden 

layers may be substituted for or used as a supplement to topsoil if it can be shown the material is 

as good as or better than the existing topsoil. The permittee also must demonstrate that the 

selected overburden materials they propose to use as topsoil substitutes and supplements are the 

best available material within the permit area. The regulatory authority may require salvage and 

redistribution of the subsoil (the B and C soil horizons) or other underlying strata if it finds that 

those layers are necessary to comply with the revegetation performance standards in 30 C.F.R.

§§ 816.111 through 816.116. Unless the regulatory authority approves the use of a topsoil 

substitute, the permittee must remove and salvage topsoil separately from other overburden 

materials. The salvaged topsoil is either redistributed on another backfilled and graded portion of 

the permit area or stored for redistribution on the area from which it was removed.

When reclaiming the site the permittee must redistribute topsoil and topsoil substitutes and 

supplements in a manner that achieves an approximately uniform, stable thickness when 

consistent with the approved postmining land use, contours, and surface water drainage systems. 

Soil thickness may vary to the extent necessary to meet the specific revegetation goals identified 

in the permit and approved application3

. The permittee also must redistribute soil materials in a 

manner that prevents excess compaction and protects the materials from wind and water erosion 

before and after seeding and planting.

3 Throughout this Opinion, where a permit is discussed in the context of having been issued, we assume the application was 

approved. 

Revegetation success standards must be based upon the effectiveness of the vegetation to support 

the approved postmining land use, the extent of ground cover compared to the cover provided by 

the natural vegetation of the area, and the general revegetation requirements. These general 

requirements provide that the vegetative cover must be diverse, effective, and permanent; 

comprised of species native to the area (with certain exceptions); at least equal in extent of cover 

to the natural vegetation of the area; capable of stabilizing the soil surface from erosion; 

compatible with the postmining land use; have the same seasonal characteristics of growth as the
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original vegetation; be capable of self-regeneration and plant succession; be compatible with the 

plant and animal species of the area; and meet the requirements of State and Federal laws and 

regulations concerning seeds, poisonous and noxious plants, and introduced species. The 

regulations provide limited exceptions to some of these requirements for agricultural crops and 

for plantings used to establish temporary cover.

4.1.11 Coal Haulage

Haul roads within a mine site are constructed to accommodate the widths of vehicles used on that 

particular operation. They can be 50 feet or more wide. The overall grade of a haul road 

normally does not exceed ten percent.

Lengths of haul roads vary according to the distances necessary to access development, mining, 

and fill disposal areas. In steep slope areas, ditches are constructed on the uphill sides of haul 

roads to collect runoff, and culverts are placed at intervals to convey runoff under the road to the 

downhill side. In flatter terrain, ditches are constructed on both sides of the road and the road is 

crowned to allow for drainage to both sides. Temporary haul roads to working areas are usually 

surfaced with crushed overburden materials; while primary haul roads connecting to public roads 

are generally surfaced with gravel. Stream crossings are typically constructed by hardening the 

stream bottom or installing culverts.

Coal may be transported from the mine site to a processing or power plant by rail, truck, or 

conveyor. Permittees must control road dust and dust occurring on other exposed surfaces by 

measures such as vegetating, watering, using chemical or other dust suppressants, or otherwise 

stabilizing all exposed surfaces in accordance with current, prudent engineering practices.

Operators typically use water for dust abatement.

4.1.12 Coal Processing

In many instances coal must be processed before it is suitable for burning in a power plant or in 

an industrial or residential furnace. This may be done at the mine site or at a coal preparation 

plant located elsewhere. Processing involves washing, crushing, and sorting run-of-the-mine coal 

to remove rock and other impurities from the coal Slurry generally is pumped into 

impoundments constructed in adjacent valleys for dewatering. Coarse refuse may be returned to 

the mine excavation or placed in constructed refuse piles.

4.1.13 Coal Combustion Residue Placement

The operators of electric power plants generate coal combustion residues (CCRs) as a result of 

the combustion or gasification of coal.

Current uses of CCRs on mine sites include:

• As a seal to encapsulate acid-forming materials to prevent the formation of acid mine 

drainage; 

• As an alkaline amendment on active and abandoned surface mines to abate acid mine 

drainage; 

• As an agricultural soil supplement;

• As a flowable fill to seal and stabilize abandoned underground mines to prevent 

subsidence and the production of acid mine drainage; 

• As a durable base for dams, roads, or other structures;

• As an additive to chemically stabilize coal refuse piles and reduce acidic leachate

formation;
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• As a fill material to assist in achieving approximate original contour restoration on active 

and abandoned mines;

• As a fill material to eliminate highwalls on abandoned mine lands; and

• As an alternative to landfill disposal, with no beneficial purpose. 

These CCRs contain various concentrations of trace metals along with major anions and cations, 

which have been concentrated in the CCRs. CCRs may be enriched in arsenic, boron, mercury, 

selenium, lead, magnesium, sulfur, and cadmium (Natural Research Council 2006). In addition, 

eight metals (barium, arsenic, selenium, chromium, cadmium, mercury, lead, and silver) that the 

EPA regulates under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. 

(RCRA) toxicity characteristic rule are present in CCRs at varying concentrations.

SMCRA does not mention CCRs. However, the placement of CCRs on a mine site regulated 

under SMCRA must comply with the environmental protections provisions of the applicable 

SMCRA regulatory program unless the site is re-permitted as a waste disposal site under the 

RCRA. 

4.1.14 Bond Release

Regulations under SMCRA require that, prior to permit issuance, the applicant file a 

performance bond with the regulatory authority. The bond assures that sufficient funds will be 

available to complete the approved reclamation plan in the event the permittee fails to do so. The 

bond amount required for each bonded area must be determined by the regulatory authority, 

based upon the requirements of the approved permit and reclamation plan. The amount of bond 

must be sufficient to assure completion of the reclamation plan if the regulatory authority must 

perform the work.

Reclamation bonds are typically released in three phases, with certain exceptions. Phase I bond 

releases are granted after satisfactory backfilling, regrading, and drainage control have been 

completed on the disturbed area. Phase II releases are granted after revegetation has been 

established. Phase III releases are granted after the revegetation responsibility period (which is 

either 2, 5, or 10 years after the last year of augmented seeding, fertilization, or irrigation) has 

expired and all reclamation requirements of the permit and regulatory program are met. SMCRA 

jurisdiction terminates upon Phase III bond release.

Permitting

The following sections describe the permitting process.

4.2.1 Permit Requirements

Under SMCRA, anyone intending to conduct surface coal mining and reclamation operations 

(which also includes surface effects of underground mining) must apply for and receive a permit 

from the applicable SMCRA regulatory authority.

In order to obtain a permit, an applicant must provide baseline information about hydrology, 

geology, vegetation, soils, water quality, existing land uses, threatened and endangered
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species/critical habitat occurrences, and habitat suitability using a variety of field methods, some 

of which may involve sampling (e.g., 30 U.S.C. § 1257(b); 30 C.F.R. Parts 773, 779, 780, 783,

and 784).

The permit applicant must submit fish and wildlife resource information for both the permit area 

and the adjacent area4 (30 C.F.R. §§ 780.16(a) and 784.21(a)). The scope and level of detail for 

the resource information required with each permit “shall be determined by the regulatory 

authority in consultation with State and Federal agencies with responsibilities for fish and 

wildlife and shall be sufficient to design the protection and enhancement plan (PEP) required 

under” 30 C.F.R. §§ 780.16(a)(1) and 784.21(a)(1). Specifically, Federal regulations require that 

all surface and underground coal mining permit applications include site-specific resource 

information about proposed, endangered, or threatened plants and animals and critical habitats 

listed under the ESA in either the permit area or the adjacent area (Id. at §§ 780.16(a)(2)(i) and 

784.21(a)(2)(i)). The resource information necessary to address species or habitat is required 

where the permit area or adjacent area includes habitats of unusually high value for fish and 

wildlife or “[o]ther species and habitats identified through agency consultation as requiring 

special protection under State or Federal law” (Id. at §§ 780.16(a)(2)(ii)-(iii) and 

784.21(a)(2)(ii)-(iii)).

4 The Federal regulations define “adjacent area” in a manner similar to the definition of “action area.” The phrase “adjacent area 

means the area outside the permit area where a resource or resources, determined according to the context in which adjacent area 

is used, are or reasonably could be expected to be adversely impacted by proposed mining operations, including probable impacts 

from underground workings” (30 C.F.R.§ 701.5). “Action area means all areas to be affected directly or indirectly by the Federal 

action and not merely the immediate area involved in the action” (50 C.F.R. § 402.02).

Each permit application must include a PEP, which describes “how, to the extent possible using

the best technology currently available, the operator will minimize disturbances and adverse 

impacts on fish and wildlife and related environmental values, including compliance with the 

Endangered Species Act” (Id. at § 780.16(b) and 784.21(b)). The PEP must include information 

about how enhancement of these resources will be achieved where practicable.

More specifically, the PEP must include protective measures that will be used during the active 

mining phase of operation (e.g., the establishment of buffer zones, selective location and design 

of haul roads and powerlines, and monitoring of surface water quality and quantity) and 

enhancement measures that will be used during the reclamation and postmining phase of 

operation to develop aquatic and terrestrial habitat ( Id. at §§ 780.16(b)(3)(i)-(ii) and 

784.21(b)(3)(i)-(ii)). “Such measures may include restoration of streams and other wetlands, 

retention of ponds and impoundments, establishment of vegetation for wildlife food and cover, 

replacement of perches, and nest boxes. Where the plan does not include enhancement measures, 

the operator must provide a statement explaining why enhancement is not practicable” (Id. at §§ 

780.16(b)(3)(ii) and 784.21(b)(3)(i)-(ii)). The PEP must also be drafted in a manner consistent 

with the performance standards specified in the Federal regulations (Id. at § 780.16(b)(1))5

. 

5 Throughout this document reference is made to OSMRE’s regulations at 30 C.F.R. Part 780, about Surface Mining permit 

Applications— Minimum Requirements for Reclamation and Operation Plan. Unless specifically, exempted references to 

this Part are also referring to the underground mining permit applications counterpart found at 30 C.F.R. Part 784.

Furthermore, Title V of SMCRA (See 30 U.S.C. § 1265) mandates that any permit issued under 

any approved State or Federal program to conduct surface coal mining operations must require 

that such surface coal mining operations will meet all applicable environmental protection 

performance standards of the OSMRE or the State regulatory authority (whichever is applicable), 

and such other requirements as the OSMRE or the State regulatory authority shall promulgate.
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Specifically, in reference to avoiding and minimizing potential impacts to listed species, 30

U.S.C. § 1265 (b)(24) mandates “that to the extent possible using the best technology currently 

available, minimize disturbances and adverse impacts of the operation on fish, wildlife, and 

related environmental values, and achieve enhancement of such resources where practicable.” 

After approval of the permit application, the regulatory authority may not issue the permit until 

the applicant posts a performance bond to cover the cost of reclamation.

Species-specific protection measures (SSPMs) are activities deemed necessary to avoid, 

minimize, and monitor the effects of the proposed mining action on ESA-listed and -proposed 

species. SSPMs was a term referenced in the terms and conditions contained in the ITS of the 

1996 Opinion. The Service uses the term in this Opinion to describe measures that minimize the 

impacts of incidental take and must be implemented as a mandatory condition in the permit if the 

regulatory authority and/or applicants choose to avail themselves of incidental take coverage 

under this Opinion’s incidental take statement.

The regulatory authority, and/or individual permit applicants, coordinate the development of the 

PEP and SSPMs with the Service during the permit application process as needed to minimize 

effects to listed or proposed species and designated or proposed critical habitat. As described in 

the biological assessment, SSPMs for a proposed project should be developed in conjunction 

with the appropriate local Service Field Office. The Service, regulatory authority, and permit 

applicant should cooperatively develop measures that are feasible to implement and evaluate.

This coordination and development of species-specific protective measures for a proposed 

project may occur prior to a determination that the permit application is complete (i.e., meets the 

informational requirements under SMCRA regulations and other applicable authorities) (See 30 

U.S.C 780.16(b)). For State (or future Tribal) regulatory authorities, this coordination process is 

outlined in Appendix A. Under the regulations, the Service should be notified of a potential 

permit application no later than when the application is considered complete (30 C.F.R. 773.6 

(a)(3). When developed, SSPMs should include a brief explanation of how the operator will 

avoid or minimize disturbances and adverse impacts by explaining how the SSPMs are to be 

implemented and how they will benefit the ESA-listed or proposed species and/or its critical 

habitat.

As determined warranted by the Service, the Service may develop range-wide guidance 

documents6 to assist in the development of PEPs and/or species-specific protective measures that 

would be incorporated into individual permits. These guidance documents can also help 

streamline the permitting process.

6 While this range-wide guidance has sometimes been referred to informally as “range-wide SSPMs,” they are more 

properly defined as guidance documents, while SSPMs are those measures that are defined at a project specific level, as 

described above.

PEPs, as required under SMCRA implementing regulations, contain measures to minimize 

disturbances or impacts to resources, as well as measures that enhance the protection of 

resources. Thus, it may be the case that PEPs avoid any incidental take from occurring altogether 

such that incidental take coverage and associated species-specific protective measures to 

minimize incidental take are not required. Alternatively, species-specific protective measures 

may be incorporated in PEPs.
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19

4.2.2 Permit Application Process and Service Coordination 

As part of the action being evaluated in this consultation, the SMCRA implementing regulations 

provide for a technical assistance process between the Service, the State regulatory authority, and 

applicant with respect to initial permit issuance, permit renewals, and significant permit revisions 

involving all surface coal mining and reclamation operations and coal exploration conducted 

under Title V of SMCRA. During the technical assistance process, if a proposed action is 

anticipated to result in incidental take of a species, the State regulatory authority and/or the 

applicant/mining operator may indicate that incidental take coverage has already been provided 

under a prior biological opinion (e.g., as a result of ESA section 7(a)(2) consultation with another 

Federal agency) or via an ESA section 10 permit (i.e., via a previously completed Habitat 

Conservation Plan [HCP] or Candidate Conservation Agreement with Assurances [CCAA]). If 

that is the case, then additional species-specific measures would not need to be developed by the 

Service and incorporated in the permit, and the State regulatory authority and mining operator 

would not need to rely on incidental take coverage afforded by the ITS contained in this 

programmatic Opinion.

Because this is a programmatic consultation that examines many activities on a nationwide basis, 

subsequent, site-specific step-down ESA section 7(a)(2) consultations will be conducted between 

the Service and OSMRE when OSMRE is the authority rendering a specific permit decision that 

may affect proposed or listed species or proposed or designated critical habitat.

The SMCRA Coordination Process described in Appendix A and the 2020 DRP process, as 

described in Appendix B and developed by OSMRE in coordination with the Service, provide 

additional information describing OSMRE’s action evaluated in this consultation. Because 

concerns have been previously raised relating to the inconsistent implementation of the technical 

assistance process, these documents are also intended to address this concern by providing 

information to State regulatory authorities, OSMRE and Service staff, the mining industry, as 

well as other interested parties, on how this process operates between State (or Tribal) regulatory 

authorities and the Service. As discussed in further detail in this Opinion, the Service finds that 

the additional clarity provided by these documents will assist in addressing the concerns 

surrounding inconsistent implementation and other issues in order to help OSMRE ensure that its 

regulatory program, including approved State SMCRA regulatory programs, is structured to 

avoid the issuance of a permit that is likely to jeopardize ESA-listed species or result in 

destruction or adverse modification of critical habitat.

4.2.2.1 SMCRA Coordination Process Between the Service and the Applicable State 

Regulatory Authority

The document in Appendix A describes how the technical assistance process contained in 

SMCRA implementing regulations is implemented between the State regulatory authority and 

the Service7

, where States have primacy. The technical assistance process is essentially the

7 As any proposed permit where OSMRE is the regulatory authority would undergo step-down section 7 consultation, this process 

is only relevant to the circumstances in which the States have primacy.
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exchange of information between the Service and the applicable State regulatory authority on 

effects to ESA-listed and proposed species and critical habitat associated with mining permit 

determinations (i.e., initial permit issuance, for exploration that will remove 250 tons of coal or 

more or that will occur on lands designated as unsuitable for mining, permit renewals, and 

significant permit revisions) that are made by the State regulatory authority. The Service may 

provide comments and recommendations for the State regulatory authority to consider as it 

determines a PEP to be implemented as part of the permitted action, any SSPMs to the extent 

that the State regulatory authority and project proponent seek incidental take coverage, and to 

assist the State regulatory authority with its compliance with the SMCRA regulatory requirement 

to ensure that no permit will be issued that will jeopardize ESA proposed or listed species and/or 

destroy or adversely modify critical habitat designations and proposed designations.

We use the phrase “SMCRA Coordination Process” throughout this document to describe the 

exchange of information among State regulatory authorities, applicants, mining operators, and 

the Service. Although SMCRA regulations provide for coordination with the Service in review 

of individual permits, further clarification of the regulations was desired between OSMRE and 

the Service to ensure smooth coordination between State regulatory authorities, applicants, and 

the Service. The SMCRA Coordination Process clarifies the information needs of the Service 

when evaluating the effects of proposed permitted activities on listed and proposed species and 

designated and proposed critical habitats. During the SMCRA Coordination Process, the Service 

will provide recommendations and assist the State regulatory authority in their efforts to ensure 

the proposed mining operation is not likely to jeopardize listed or proposed species or destroy or 

adversely modify designated or proposed critical habitats. The Service has the opportunity to 

review the relevant permitting material in a timely manner and, in coordination with the State 

regulatory authority and applicant (as detailed in 30 C.F.R. §§ 780.16 and 784.21), assist in 

developing measures to minimize disturbances and adverse impacts to proposed or listed as 

threatened or endangered species or proposed or designated critical habitat. The Service will 

consider adverse effects to listed species or critical habitat, and estimate any anticipated 

incidental take during review of the permit application and PEP. Under the ESA, the Service is 

ultimately responsible for the accurate quantification and tracking of take exempted through 

consultation.

To ensure timely permit processing as outlined in the SMCRA Coordination Process described in 

Appendix A, this coordination will occur within 30 days of receipt of the fish and wildlife 

information required as part of an administratively complete application. OSMRE’s regulations 

at 30 C.F.R. § 780.16 require a permit application to include a Protection and Enhancement Plan 

that includes protective measures and enhancement measures as mandatory permit conditions, as 

determined by the State regulatory authority in consultation with the Service for permits that may 

affect listed species or their designated critical habitat. Permits are deemed administratively 

complete by the State regulatory authority. Upon receipt of the resource information specified in 

Appendix A from the State regulatory authority, the Service will conduct a review of the 

materials to determine if any of the required information is missing or in need of clarification in 

order for the Service to evaluate the permit application and decide whether they are sufficient to 

determine if and how the permitted operation will affect listed species or their habitats. If the 

information is not sufficient to make such a determination, the Service will provide the State 

regulatory authority with a detailed explanation of what additional information is required. Once 

requested information on listed or proposed species or designated or proposed critical habitat and 

the measures proposed for their protection is received, the Service will respond to the State
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21

regulatory authority within 30 days and propose, if necessary, any species-specific protective 

measures to minimize incidental take or avoid jeopardy and/or adverse modification.

Specific to State regulatory authorities as outlined in the SMCRA Coordination Process 

(Appendix A), if the State regulatory authority accepts the new measures, they will incorporate 

them as mandatory conditions into the permit. If the State regulatory authority does not accept 

the additional measures, the regulatory authority must respond to the Service, explaining its 

rationale for not implementing all the suggested protective measures. The Service will respond to 

the State regulatory authority with its decision whether it agrees with the State regulatory 

authority’s rationale for not accepting the additional measures and to provide its reason(s) for 

agreeing with the decision in a confirmation letter to the State regulatory authority.

4.2.2.2 2020 Dispute Resolution Process Relevant to Regulatory Authorities Coordinating 

SMCRA Permitting with the USFWS (2020 DRP).

OSMRE provided the 2020 DRP (Appendix B) to accompany the SMCRA Coordination Process 

addendum to OSMRE’s biological assessment. The 2020 DRP applies to State regulatory 

authorities where they are the primary regulatory authority. The goal of the dispute resolution 

process is to efficiently and effectively resolve disagreements that may arise at the permitting 

level. If the State regulatory authority and the Service cannot agree on the measures 

recommended by the Service or if the Service does not provide recommendations within the 30- 

day process as described in the 2020 DRP, the dispute may be elevated. The dispute resolution 

process is structured to resolve issues at the lowest level of management possible. The dispute

resolution process has four levels of elevation: 1) OSMRE and Service Field offices; 2) Regional 

OSMRE and Regional Service offices; 3) OSMRE and the Service Headquarters; and 4) the 

Secretary. The following paragraphs provide a general overview of the 2020 DRP. Additional 

information on this process, including the roles of participants and timing, can be found in the 

addendum to the biological assessment and attached to this Opinion for reference as Appendix B.

At Level 1 in the elevation process, the Field Office Director or comparable entity (FOD) will 

review the situation, consult experts as needed including the Service and the applicant, and offer 

a reasonable resolution on the issue. Once a proposed resolution is issued, the State regulatory 

authority can either require implementation of the proposed resolution if one is issued and 

request agreement of the Service, to which the Service will either respond within 14 days, reject 

the proposed result and request elevation to Level 2, or reject the proposed resolution and 

approve the permit. If the issue is not resolved at Level 1, the State regulatory authority may 

request review by the OSMRE Regional Office or the Service Regional Office, thereby 

activating Level 2 review.

When Level 2 review is initiated, the appropriate OSMRE or Service Regional Director (RD) or/ 

their designees will contact the reciprocal office and mutually establish an evaluation team. The 

evaluation will be comprised of experts deemed essential to derive a satisfactory resolution to the 

issue. The RDs of OSMRE and the Service will mutually serve as the officials to assist in 

resolving the issue. Resolution should occur within 14 days of receipt of the review request.

Once a proposed resolution is issued, the State regulatory authority can either require 

implementation of the proposed resolution and request agreement of the Service, to which the
SMCRA Biological Opinion - 10/16/2020

22

Service will respond within 14 days, reject the proposed resolution and request elevation to 

Level 3, or reject the proposed resolution and approve the permit.

When an issue is elevated to Level 3, the contacted Director or their designees will contact the 

Director of the reciprocal office and begin a coordinating and review process. The Directors may 

choose personnel they believe will help promptly resolve the issue to assist them, including 

experts or members of the State regulatory authority. The Directors will reach a consensus and 

offer a resolution to the parties within 14 days of review request. Once a proposed resolution is 

issued, the State regulatory authority can either require implementation of the proposed 

resolution and request agreement of the Service (in which case the Service will respond within 

14 days), reject the proposed resolution and request elevation to Level 4, or reject the proposed 

resolution and approve the permit.

At Level 4, the State regulatory authority may request review by the Secretary of the Department 

of the Interior (Secretary), or his or her designee. After careful consideration, the Secretary will 

offer a proposed resolution within 21 days. Once a proposed resolution is issued, the regulatory 

authority can either require implementation of the proposed resolution or reject the proposed 

resolution and approve the permit. Further elevations will not be available.

4.2.2.3 Additional Considerations Related to ESA-Listed Species and Critical Habitat 

OSMRE’s SMCRA regulations at 30 C.F.R. § 773.15(j) require that before any surface coal 

mining and reclamation permit application or application for a significant revision of a permit 

can be approved, the regulatory authority must find, in writing, based on information in the 

application, that the “operation would not affect the continued existence of endangered or 

threatened species or result in destruction or adverse modification of their critical habitats, as 

determined under the [ESA].” As described previously, we anticipate the coordination process 

(Appendix A), where the State has primacy, or the step-down ESA section 7(a)(2) consultation, 

where OSMRE has permitting authority, would consider information described in the regulations 

at 30 CFR § 780.16.

The regulations at 30 C.F.R. § 816.97(b) state “[n]o surface mining activity shall be conducted 

which is likely to jeopardize the continued existence of endangered or threatened species ... or 

which is likely to result in the destruction or adverse modification of designated critical habitats 

of such species in violation of the [ESA].” In implementing those regulations, in the event the 

species- and site-specific analyses performed during the SMCRA Coordination Process (i.e., 

where a State has primacy) determine a permitted operation is likely to result in jeopardy of a 

listed or proposed species or destruction or adverse modification of designated or proposed 

critical habitat and the State regulatory authority and Service cannot come to agreement on an 

alternative that would avoid the likelihood of jeopardy or destruction or adverse modification, 

OSMRE through the process described in the 2020 DRP (Appendix B) will engage to facilitate a 

resolution of those differences. Where OSMRE is the regulatory authority, ESA section 7 

procedures would apply.

The regulations at 30 C.F.R. § 816.97(b) also state, “[t]he operator shall promptly report to the 

regulatory authority any State- or federally-listed endangered or threatened species within the 

permit area of which the operator becomes aware. Upon notification, the regulatory authority
SMCRA Biological Opinion - 10/16/2020

23

shall consult with appropriate State and Federal fish and wildlife agencies and, after consultation, 

shall identify whether, and under what conditions, the operator may proceed. (30 C.F.R. § 

816.97(b)). We interpret this to include, for example, rare or infrequent circumstances, where, 

after the permit has been issued, the operator may become aware of endangered or threatened 

species that enter the action permit area that had not previously considered or addressed during 

previous coordination or step-down ESA section 7(a)(2) consultation with the Service, as 

applicable. We generally anticipate this coordination would be largely consistent with the 

coordination process described in the biological assessment and its appendices (and provided for 

reference this to document in Appendix A) where the State has primacy, or according to ESA 

section 7 procedures, where OSMRE is the regulatory authority. Similarly, as new species 

become listed or proposed under the ESA or as critical habitat is proposed or designated, and 

operators or regulatory authorities become aware that those newly listed or proposed species or 

proposed or designated critical habitat would be affected by individual mining projects, those 

operators and/or the regulatory authority must coordinate with the local Service Field Office to 

determine if the permit and other related documents (e.g., PEP, where applicable) need to be reexamined, particularly where these resources were not addressed in the previous technical 

assistance or step-down ESA Section 7(a)(2) consultation (as appropriate)

4.2.3 Permit Enforcement under State Regulatory Programs 

As discussed in OSMRE’s biological assessment, each of the States that obtained primacy has 

followed the procedures outlined in 30 C.F.R. Part 732, and the Secretary has determined, among 

other things, that each state’s program “provides for the State to carry out the provisions and 

meet the purposes of the Act and this Chapter within the State and that the State’s laws and 

regulations are in accordance with the provisions of the Act and consistent with the requirements 

of this Chapter.” 30 C.F.R. § 732.15(a). 

SMCRA provides OSMRE with oversight responsibility, which further shields fish, wildlife, and 

related environmental values and resources in the event that a State regulatory authority issues a 

permit that is likely to jeopardize the continued existence of species or adversely modify critical 

habitat. OSMRE is responsible for overseeing the effectiveness of the state’s implementation, 

administration, or enforcement of its approved program, which ensures that State regulatory 

authorities are enforcing the State counterparts to the Federal regulations.

OSMRE’s oversight authority is both permit-specific and programmatic. For alleged permitspecific violations, under 30 U.S.C. § 1271(a)(1), whenever OSMRE, on the basis of any 

information available, including receipt of information from any person, has reason to believe 

that any person is in violation of any requirement of the Act or any permit condition required by 

the Act, OSMRE must notify the State regulatory authority. The State regulatory authority then 

has ten days to take appropriate action to cause the violation to be corrected or show good cause 

for not taking action (30 U.S.C. § 1271(a)(1); see also 30 C.F.R. §§ 842.11(b)(1), 843.12(a)(2)). 

If the State regulatory authority fails to take appropriate action or show the requisite good cause 

for failing to act, OSMRE will order and conduct a Federal inspection of the surface coal mining 

operation at which the alleged violation is occurring, unless the information available to OSMRE 

is the result of a prior Federal inspection (30 U.S.C. § 1271(a)(1); 30 C.F.R. § 842.11(b)(1)).
SMCRA Biological Opinion - 10/16/2020

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If OSMRE, on the basis of a Federal inspection, determines that any permittee is in violation of 

any requirement of SMCRA or any permit condition required by SMCRA and that violation does 

not create imminent harm or danger, then OSMRE will issue a notice of violation (NOV) to the 

permittee setting forth a reasonable time for abatement of the violation and providing 

opportunity for a public hearing (30 U.S.C. § 1271(a)(3)). If OSMRE finds that the violation has 

not been abated within the time provided, OSMRE will order a cessation of surface coal mining 

and reclamation operations.

OSMRE will waive the ten-day notice process and immediately order a Federal inspection in 

instances where OSMRE has adequate proof that an imminent danger of significant 

environmental harm exists, and the State has failed to take appropriate action (Id. at

§ 1271(a)(1)). If OSMRE determines, on the basis of any Federal inspection, that any condition 

or practices exist or that the permittee is in violation of any requirement of SMCRA or any 

permit condition required by SMCRA, and that condition, practice, or violation creates an 

imminent danger to the health or safety of the public, or is causing, or can reasonably be 

expected to cause significant, imminent environmental harm to land, air, or water resources, 

OSMRE must immediately order a cessation of that surface coal mining and reclamation 

operation ( Id. at § 1271(a)(2)). The Federal regulations define a “significant, imminent 

environmental harm to land, air, or water resources” to include harm to “plant and animal life,” 

and consider environmental harm to be significant “if that harm is appreciable and not 

immediately reparable” (30 C.F.R. § 701.5).

In addition to permit-specific Federal enforcement, OSMRE has programmatic oversight 

responsibilities. OSMRE is required to evaluate the administration of each State regulatory 

program at least annually (30 C.F.R. § 733.12(a)(1)). An evaluation can also be initiated at the 

request of any interested person who provides a statement of facts alleging that a State is not 

effectively implementing, administering, maintaining or enforcing any part of its approved 

program (Id. at § 733.12(a)(2)). If OSMRE finds that a State is not effectively administering any 

or all of its approved program, the Director will either substitute Federal enforcement for all or 

part of the State program or recommend that the Secretary withdraw approval of the State 

program (Id. at § 733.12(e)).

Pursuant to these provisions of the Act and Federal regulations, OSMRE has the authority to 

ensure that each State regulatory authority is satisfying its obligations under its approved State 

regulatory program, including those provisions related to the protection of proposed or listed 

species and/or designated critical habitat. OSMRE’s regulations at 30 C.F.R. Part 773 related to 

requirements for permits and permit processing can serve to ensure that permitted actions are not 

likely to jeopardize the continued existence of ESA-listed species and/or destroy or adversely 

modify critical habitat. First, if OSMRE received information, from any person, including the 

Service, concerning the impacts of a permitted mining operation on species or critical habitat and 

depending on the facts of the situation, OSMRE may issue a ten-day notice to the appropriate 

State regulatory authority or conduct a Federal inspection when appropriate. Thus, where 

appropriate, OSMRE will invoke its oversight authority as enumerated in 30 U.S.C. § 1271(a), in 

the event it receives information from any person (again including the Service) that a permitted 

mine will result in significant, imminent environmental harm to ESA-listed species and/or 

critical habitat. Second, as detailed in 30 U.S.C. § 1271(b), if OSMRE discovers or receives 

information concerning the ability and effectiveness of a State regulatory authority to implement, 

administer, or enforce the fish and wildlife, and related environmental values portion of its
SMCRA Biological Opinion - 10/16/2020

25

approved State program, OSMRE could require modification of that portion of the approved 

State program, which could lead to more effective implementation, administration, or 

enforcement of the approved State program. For example, such information may include 

information on a State regulatory authority’s coordination or review with the Service to design 

protection and enhancement plans as necessary and provide site-specific resource information 

during the permitting process. In extreme cases, OSMRE could substitute Federal enforcement or 

withdraw that portion of the State program.

30 C.F.R. Part 842 requires issuance of a ten-day notice (with certain exceptions) to State and 

Tribal regulatory authorities when: (a) the authorized representative has reason to believe a 

violation of SMCRA, the approved regulatory program, or a permit condition exists; or (b) on 

the basis of a Federal inspection, the authorized representative determines that a violation of 

SMCRA, the approved regulatory program, or a permit condition exists and OSMRE has not 

issued a previous ten-day notice (TDN) for the same violation (30 C.F.R. Part 842 and Part 843). 

4.2.4 Monitoring During Mining and Reclamation 

The Service may recommend monitoring to ESA-listed species, including but not limited to, 

monitoring of take within the permit and adjacent areas related to individual ESA-listed or 

proposed species that have the potential to be impacted by the proposed mining operation, as part 

of the permit review. Species-specific monitoring should be performed by personnel with 

relevant taxonomic expertise and capable of identifying the target species and following Servicerecommended protocols.

Monitoring recommended by the Service would be to identify adverse trends and determine 

whether any changes are needed to the mining and reclamation plan (e.g., to monitor 

effectiveness of SSPMS, and to prevent material damage to the hydrologic balance outside the 

permit area). Monitoring recommended by the Service to avoid or minimize impacts to proposed 

or listed species and their proposed or designated critical habitat is required as a term and 

condition if the State or Tribal regulatory authority is seeking incidental take coverage under this 

Incidental Take Statement.

Action Area

The action area is defined as “all areas to be affected directly or indirectly by the Federal action 

and not merely the immediate area involved in the action” (50 C.F.R. § 402.02). Consistent with 

the ESA Section 7 implementing regulations, in delineating the action area for the proposed 

action, we evaluated the physical, chemical, and biotic effects of the action on the environment 

that would not occur but for the action and are reasonably certain to occur. The action area for 

this consultation, as delineated by these effects to the environment, consists of the areas within 

the United States that are major coal producing areas (Figure 1). This area represents the extent 

of lands that could be mined under OSMRE’s regulatory program, with the understanding that 

the effects of coal mining can extend well beyond the footprint of individual mines addressed
SMCRA Biological Opinion - 10/16/2020

26

under OSMRE’s regulatory program.

Figure 1. Action area for the OSMRE consultation showing major coal producing areas of the United States. 

Source: OSMRE’s Biological Assessment. Modified from: United States Geological Survey (USGS), 2011, 

Coal Fields, United States Department of the Interior 

(https://www.sciencebase.gov/catalog/item/4f4e477ae4b07f02db47f841). 

5 APPROACH TO THE ASSESSMENT

Section 7(a)(2) of the ESA requires every Federal agency, in consultation with and with the 

assistance of the Services (U.S. Fish and Wildlife Service and National Marine Fisheries 

Service), to ensure that any action it authorizes, funds, or carries out is not likely to jeopardize 

the continued existence of any ESA-listed species or result in the destruction or adverse 

modification of designated critical habitat. “’Jeopardize the continued existence of’” means to 

engage in an action that reasonably would be expected, directly or indirectly, to reduce 

appreciably the likelihood of both the survival and recovery of a listed species in the wild by 

reducing the reproduction, numbers, or distribution of that species.” (50 C.F.R. § 402.02) 

“’Destruction or adverse modification’” means a direct or indirect alteration that appreciably 

diminishes the value of critical habitat as a whole for the conservation of a listed species.” (50

C.F.R. § 402.02).
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Because we are consulting on OSMRE's implementation of Title V of SMCRA, which regulates 

many activities conducted over several geographic areas and long periods of time, there is 

substantial uncertainty about the number, location, timing, frequency, and intensity of individual 

activities. Therefore, we developed a programmatic consultation approach to determine whether 

and to what degree OSMRE has structured their regulatory program to ensure its implementation 

is not likely to jeopardize the continued existence of proposed or listed species or result in the 

destruction or adverse modification of proposed or designated critical habitat by assessing 

whether the following criteria are fulfilled: (1) understand the scope of its action; (2) reliably 

estimate the physical, chemical, or biotic stressors that are likely to be produced as a direct or 

indirect result of their action; (3) minimize adverse effects of such activities on ESA-listed 

species and designated critical habitat; (4) identify, inform, encourage, and screen applicants for 

potential eligibility under or participation in the permitted activity; (5) continuously monitor and 

evaluate likely adverse effects on listed species and critical habitat; (6) monitor and enforce 

permit compliance; and (7) modify its action if new information (including inadequate protection 

for species or low levels of compliance) becomes available. This approach is further described in 

Section 8.1. This approach also recognizes that site- and species-specific considerations would 

be addressed with the Service in subsequent technical assistance efforts with the State or Tribal 

regulatory authority through the SMCRA Coordination Process, or, where OSMRE is the 

regulatory authority, during a subsequent step-down ESA Section 7(a)(2) consultation.

Jeopardy Determination

The jeopardy analysis in this Opinion relies on four components: (1) the Status of the Species, 

which describes the range-wide condition of the species, the factors responsible for that 

condition, and its survival and recovery needs; (2) the Environmental Baseline, which analyzes 

the condition of the listed species in the action area, without the consequences to the listed 

species caused by the proposed action; (3) the Effects of the Action, which includes all 

consequences to listed species that are caused by the proposed action, including the 

consequences of other activities that are caused by the proposed action; and (4) the Cumulative 

Effects, which evaluates the effects of future, non-Federal activities in the action area on the 

species.

For purposes of making the jeopardy determination, the Service: (1) reviews all the relevant 

information, (2) evaluates the current status of the species and environmental baseline, (3) 

evaluates the effects of the Action and cumulative effects, (4) add the effects of the action and 

cumulative effects to the environmental baseline, and, in light of the status of the species, 

determines if the Action is likely to jeopardize listed species.

We evaluated the effects of the action on guilds of ESA-proposed and -listed species and 

designated and proposed critical habitat. Assigning species to guilds based on life-history 

similarities allows for a thorough review of expected responses of similar species to stressors 

without redundantly discussing key impacts for each individual species. Analysis of effects using 

a guild approach is more appropriate at the programmatic level. Species-specific and site-specific 

analyses will occur during subsequent step-down ESA section 7(a)(2) consultations (when 

OSMRE is issuing the permit) and the technical assistance process conducted between the 

Service and the State regulatory authority for permit decisions issued by the State regulatory 

authority.
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Adverse Modification Determination

The destruction or adverse modification analysis in this Opinion relies on four components: (1) 

the Status of Critical Habitat, which describes the range-wide condition of the critical habitat in 

terms of the key components (i.e., essential habitat features, physical and biological features, or 

primary constituent elements) that provide for the conservation of the listed species, the factors 

responsible for that condition, and the intended value of the critical habitat overall for the 

conservation/recovery of the listed species; (2) the Environmental Baseline, which analyzes the 

condition of the designated critical habitat in the action area, without the consequences to the 

designated critical habitat caused by the proposed action; (3) the Effects of the Action, which 

includes all consequences to the critical habitat that are caused by the proposed action, including 

the consequences of other activities that are caused by the proposed action; and (4) Cumulative 

Effects, which evaluate the effects of future non-Federal activities that are reasonably certain to 

occur in the action area on the key components of critical habitat that provide for the 

conservation of the listed species and how those impacts are likely to influence the conservation 

value of the affected critical habitat.

For purposes of making the destruction or adverse modification determination, the Service: (1) 

reviews all relevant information, (2) evaluates the current status of the critical habitat and 

environmental baseline, (3) evaluates the effects of the proposed action and cumulative effects,

(4) add the effects of the action and cumulative effects to the environmental baseline, and, in 

light of the status of the critical habitat, determines if the proposed action is likely to result in the 

destruction or adverse modification of critical habitat.

Past designations of critical habitat have used the terms “primary constituent elements” (PCEs), 

“physical or biological features” (PBFs) or "essential features" to characterize the key 

components of critical habitat that provide for the conservation of the listed species. Recent 

critical habitat regulations (50 C.F.R. § 402.02) discontinue use of the terms PCEs or essential 

features, and rely exclusively on use of the term PBFs for that purpose because that term is 

contained in the statute. However, the shift in terminology does not change the approach used in 

conducting a ‘‘destruction or adverse modification’’ analysis, which is the same regardless of 

whether the original designation identified PCEs, PBFs or essential features. For those reasons, 

in this Opinion, we use the term PBFs to characterize the key components of critical habitat that 

provide for the conservation of the listed species.

6 STATUS OF THE SPECIES AND CRITICAL HABITAT

In the biological assessment, OSMRE identified 194 ESA-listed and proposed species (66 of 

which have proposed or designated critical habitat) that overlap with the Action Area and that 

that may affected by the proposed action. Species addressed in this Opinion are listed in Table 1 

below. In their biological assessment, OSMRE assigned each of the species to guilds. The 

remainder of this Opinion addresses species and critical habitats within these functional guilds, 

based primarily on taxa groups (i.e., animals) or habitat associations (i.e., plants). Taxa and 

habitat group categories for guilds vary according to the similarities in expected exposure or 

response to the effects of the activities covered by the action. Taxa groupings may include 

broader groups of species (e.g., passerines, raptors, shorebirds, salamanders, crayfish, bats, 

mussels, etc.), or may have a more narrow focus, as appropriate (e.g., cuckoos, sage grouse, 

carrion beetles, or jumping mice). For plants, three categories were used, based on habitat type:
SMCRA Biological Opinion - 10/16/2020

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hydric (wet), xeric (dry), and mesic (intermediate or transitional between wet and dry habitats). 

The status of the species and critical habitat are addressed in Appendix C of this Opinion8 and 

are discussed according to these groups; additional information on the status of the species and 

critical habitat can also be found in OSMRE’s biological assessment.

8 Supplemental information is also available for each species in species-specific documents, such as proposed and final listing 

determinations, critical habitat designations, recovery plans, species status assessments, and five-year reviews 

(https://www.fws.gov/endangered/species/us- species.html).

The species and critical habitats potentially affected by this action will be identified and 

evaluated on a project-specific basis by the Service Field Offices during ESA technical 

assistance with State or Tribal regulatory authorities, or through subsequent section 7 

consultations where OSMRE is the regulatory authority. We have worked with OSMRE to 

determine the list of species addressed in this Opinion, and consider these species in the context 

of guilds to aid in our analysis. The use of guilds for analyses also allows for a broader 

consideration of anticipated effects among species, including, where applicable, any subsequent 

listings of species that would experience similar exposures or responses to those considered in 

this Opinion.
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Table 1. Endangered, Threatened, and Proposed Species That May Be Affected by the Action. Key: Coal Basin: AP – 

Appalachian; AK – Alaska; CP- Colorado Plateau; G – Gulf; I – Illinois; NRM – Northern Rocky Mountains; WI – Western Interior. 

Federal Status: LE – Listed Endangered; LT – Listed Threatened; XN – Experimental Non-essential; CH – Critical Habitat designated; 

P – Proposed. Critical Habitat: NA – not applicable; UTD- unable to determine based on pending critical habitat designation.

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Amphibians Chiricahua 

leopard frog

Rana 

chiricahuensis LT, CH CP Frogs and Toads 0.7 0.0 

Amphibians Houston toad Bufo 

houstonensis LE, CH G Frogs and Toads 52.0 86.0 

Amphibians Jemez 

Mountains 

salamander 

Plethodon 

neomexicanus LE, CH CP Salamanders 11.1 0.0 

Amphibians Cheat Mountain 

salamander

Plethodon 

nettingi 

LT AP Salamanders 20.8 NA

Amphibians Black warrior 

waterdog 

Necturus 

alabamensis LE, CH AP Salamanders 55.0 39.0 

Birds Yellow-billed 

cuckoo

Coccyzus 

americanus LT, PCH CP, NRM Cuckoos 3.5 1.4 

Birds Gunnison sagegrouseCentrocercus 

minimus LT, CH CP Sage-grouse 6.6 1.9 

Birds Southwestern 

willow 

flycatcher

Empidonax 

traillii extimus LE, CH CP, NRM, Passerines 4.1 0.3 
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Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Birds California 

condor

Gymnogyps 

californianus XN CP Raptors 2.2 NA

Birds Mexican spotted 

owl

Strix occidentalis 

lucida LT, CH CP, NRM Raptors 5.2 4.2

Birds Piping plover Charadrius 

melodus LE, CH AP, CP, I, NRM,

Shorebirds 12.0 32.3

Birds Interior least 

tern

Sternula 

antillarum LE CP, G. I, NRM, WI Shorebirds 16.2 NA

Birds Rufa Red knot Calidris canutus 

rufa LT NRM, G Shorebirds 13.0 NA

Birds Whooping 

Crane

Grus americana LE, CH NRM,G Wading birds 13.0 NA

Birds Red-cockaded 

woodpecker

Picoides borealis LE AP, G Woodpeckers 12.1 NA

Crustaceans Big Sandy 

crayfish

Cambarus 

callainus LT, PCH AP Crayfish 98.0 90.0

Crustaceans Guyandotte 

River crayfish

Cambarus 

veteranus LE, PCH AP Crayfish 100.0 100.0
SMCRA Biological Opinion - 10/16/2020

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Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Crustaceans Slenderclaw 

crayfish

Cambarus 

cracens

PLT, 

PCH AP Crayfish 87.0 UTD

Fishes Diamond darter Crystallaria 

cincotta LE, CH AP, I Darters 92.6 22.9

Fishes Bluemask darter Etheostoma 

akatulo LE AP Darters 44.2 NA

Fishes Vermilion darter Etheostoma 

chermocki LE AP, WI Darters 45.6 NA

Fishes Relict darter Etheostoma 

chienense LE G Darters 72.6 NA

Fishes Watercress 

darter

Etheostoma 

nuchale LE AP Darters 56.1 NA

Fishes Duskytail darter Etheostoma 

percnurum

LE AP Darters 34.4 NA

Fishes Candy darter Etheostoma 

osburni LE, PCH AP Darters 37 8.0

Fishes Rush darter Etheostoma 

phytophilum LE, CH AP Darters 35.3 9.5
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Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Fishes Bayou darter Etheostoma 

rubrum LT G Darters 7.1 NA

Fishes Kentucky arrow 

darter

Etheostoma 

spilotum LT, CH AP Darters 84.2 10.4

Fishes Cumberland 

darter

Etheostoma 

susanae

LE, CH AP Darters 84.4 NC

Fishes Trispot darter Etheostoma 

trisella LT, PCH AP Darters 11.0 NC

Fishes Goldline darter Percina 

aurolineata LT AP Darters 28.1 NA

Fishes Pearl darter Percina aurora LT G Darters 13.0 NA

Fishes Snail darter Percina tanasi LT AP Darters 11.9 NA

Fishes Yellowfin 

madtom

Noturus 

flavipinnis LT, CH AP Madtoms 8.1 0.0

Fishes Neosho madtom Noturus placidus LT WI Madtoms 21.9 NA
SMCRA Biological Opinion - 10/16/2020

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Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Fishes Laurel dace Chrosomus 

saylori LE, CH AP Minnows 60.6 100.0

Fishes Spotfin chub Erimonax 

monachus

LT, XN, 

CH AP Minnows 21.5 54.5

Fishes Slender chub Erimystax cahni LT, CH AP Minnows 23.0 2.4

Fishes Humpback chub Gila cypha LE, CH CP, NRM Minnows 6.5 9.0

Fishes Bonytail Gila elegans LE, CH CP, NRM Minnows 5.3 2.1

Fishes Rio Grande 

silvery minnow

Hybognathus 

amarus

LE, CH, 

XN CP Minnows 2.1 0.0

Fishes Little Colorado 

spinedace

Lepidomeda 

vittata LE, CH CP Minnows 1.2 0.0

Fishes Palezone shiner Notropis 

albizonatus LE AP Minnows 44.7 NA

Fishes Cahaba shiner Notropis 

cahabae LE AP Minnows 43.0 NA

Fishes Blackside dace Chrosomus 

cumberlandensis LT AP Minnows 62.5 NA
SMCRA Biological Opinion - 10/16/2020

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Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Fishes Colorado 

pikeminnow

Ptychocheilus 

lucius

LE, CH, 

XN CP, NRM Minnows 9.6 6.1

Fishes Loach minnow Tiaroga cobitis LE CP Minnows 1.3 NA

Fishes Gulf sturgeon Acipenser 

oxyrinchus 

desotoi

LT, CH G Sturgeon 4.0 0.0

Fishes Pallid sturgeon Scaphirhynchus 

albus LE G, I, NRM, WI Sturgeon 27.1 NA

Fishes Alabama 

sturgeon

Scaphirhynchus 

suttkusi LE, CH AP Sturgeon 24.9 14.4

Fishes Zuni bluehead 

sucker

Catostomus 

discobolus 

yarrowi

LE, CH CP Suckers 24.3 0.0

Fishes Razorback 

sucker

Xyrauchen 

texanus LE, CH CP, NRM Suckers 5.0 0.6

Fishes Apache trout Oncorhynchus 

apache LT CP Trout 0.3 NA

Fishes Greenback 

cutthroat trout

Oncorhynchus 

clarki stomias LT CP, NRM Trout 6.2 NA
SMCRA Biological Opinion - 10/16/2020

36

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Fishes Gila trout Oncorhynchus 

gilae LT CP Trout 0.5 NA

Insects Rusty patched 

bumble bee

Bombus affinus LE I, AP Bumble bees 11.0 NA

Insects Dakota skipper Hesperius 

dacotae LT, CH NRM Butterflies 26.0 4.0

Insects Mitchell's satyr 

butterfly

Neonympha 

mitchellii LE AP Butterflies 9.6 NA

Insects American 

burying beetle

Nicrophorus 

americanus

LT AP, WI Carrion 

Beetles 18.4 NA

Mammals Virginia bigeared batCorynorhinus 

(Plecotus) 

townsendii 

virginianus

LE, CH AP Bats 27.6 0.0

Mammals Gray bat Myotis 

grisescens

LE AP, G, I, WI Bats 21.3 NA

Mammals Northern longeared batMyotis 

septentrionalis LT AP, G, I, WI Bats 18.8 NA

Mammals Indiana bat Myotis sodalis LE, CH AP, G, I Bats 31.6 0.0
SMCRA Biological Opinion - 10/16/2020

37

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Mammals Ocelot Leopardus 

pardalus LE G Cats 21.0 NA

Mammals Gulf Coast 

jaguarundi

Herpailurus 

yagouaroundi LE G Cats 25.0 NA

Mammals Canada lynx Lynx canadensis LT NRM Cats 2.0 1.0

Mammals New Mexico 

meadow 

jumping mouse

Zapus hudsonius 

luteus LE, CH CP, NRM Jumping 

Mice 7.2 9.3

Mammals Preble's meadow 

jumping mouse

Zapus hudsonius 

preblei LT, CH NRM Jumping Mice 3.9 4.4

Mammals Utah prairie dog Cynomys 

parvidens LT CP Other Mammals 13.0 NA

Mammals Black-footed 

ferret

Mustela nigripes LE, XN CP, NRM Other 

Mammals 10.7 NA

Mammals North American 

wolverine

Gulo gulo luscus PLT NRM Other 

Mammals 2.0 NA

Mammals Grizzly bear Ursos arctos 

horriblis LT NRM Other Mammals 1.0 NA

Mollusks Anthony's 

riversnail

Athearnia 

anthonyi LE, XN AP Aquatic Snails 22.8 NA
SMCRA Biological Opinion - 10/16/2020

38

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Mollusks Round rocksnail Leptoxis ampla LT AP Aquatic 

Snails 37.6 NA

Mollusks Plicate rocksnail Leptoxis plicata LE AP Aquatic 

Snails 45.6 NA

Mollusks Flat pebblesnail Lepyrium 

showalteri

LE AP Aquatic 

Snails 23.2 NA

Mollusks Cylindrical 

lioplax

Lioplax 

cyclostomaformis LE AP Aquatic Snails 37.6 NA

Mollusks Cumberland 

elktoe

Alasmidonta 

atropurpurea LE, CH AP Mussels 64.5 82.4

Mollusks Oauchita rock 

pocketbook

Arkansia 

wheeleri LE G Mussels 20.5 NA

Mollusks Spectaclecase Cumberlandia 

monodonta LE AP, G, I, WI Mussels 12.3 NA

Mollusks Fanshell Cyprogenia 

stegaria

LE AP, G, I Mussels 40.7 NA

Mollusks Dromedary 

pearlymussel

Dromus dromas LE AP Mussels 9.9 NA
SMCRA Biological Opinion - 10/16/2020

39

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Mollusks Cumberlandian 

combshell 

Epioblasma 

brevidens LE, CH AP Mussels 20.8 26.9 

Mollusks Oyster mussel Epioblasma 

capsaeformis LE, CH AP Mussels 12.8 26.9 

Mollusks Tan riffleshell Epioblasma

Florentina walkeri 

(E. walkeri)

LE AP Mussels 28.4 NA

Mollusks Purple cat's paw 

pearly mussel

Epioblasma 

obliquata 

obliquata 

LE AP, I Mussels 40.6 NA

Mollusks Northern 

riffleshell

Epioblasma 

torulosa 

rangiana 

LE AP, I Mussels 11.9 NA

Mollusks Snuffbox Epioblasma 

triquetra

LE AP, I Mussels 17.5 NA

Mollusks Shiny pigtoe Fusconaia cor LE AP Mussels 15.1 NA

Mollusks Finerayed pigtoe Fusconaia 

cuneolus LE AP Mussels 12.0 NA

Mollusks Longsolid Fusconaia 

subrotunda PT AP Mussels 32.0 UTD
SMCRA Biological Opinion - 10/16/2020

40

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Mollusks Finelined 

pocketbook 

Lampsilis altilis LT, CH AP Mussels 14.5 10.7 

Mollusks Orangenacre 

mucket 

Lampsilis 

perovalis LT, CH AP, G Mussels 21.9 19.6 

Mollusks Cracking 

pearlymussel 

Hemistena lata LE AP Mussels 17.0 NA

Mollusks Pink mucket Lampsilis 

abrupta LE AP, G, I Mussels 18.6 NA

Mollusks Arkansas 

fatmucket 

Lampsilis 

powellii LT G Mussels 21.0 NA

Mollusks Neosho mucket Lampsilis 

rafinesqueana LE, CH WI Mussels 23.5 27.0 

Mollusks Alabama 

lampmussel

Lampsilis 

virescens

LE AP Mussels 17.9 NA

Mollusks Birdwing 

pearlymussel 

Lemiox rimosus LE AP Mussels 16.9 NA

Mollusks Louisiana 

pearlshell 

Margaritifera 

hembeli LT G Mussels 4.0 NA

Mollusks Alabama 

moccasinshell

Medionidus 

acutissimus LT, CH AP, G Mussels 20.6 16.6 
SMCRA Biological Opinion - 10/16/2020

41

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Mollusks Ring pink Obovaria retusa LE, XN G, I Mussels 14.1 NA

Mollusks Round 

hickorynut 

Obovaria 

subrotunda PT AP,G,I Mussels 40.0 UTD

Mollusks Littlewing 

pearlymussel 

Pegias fabula LE AP Mussels 26.9 NA

Mollusks Orangefoot 

pimpleback 

Plethobasus 

cooperianus 

LE G, I Mussels 6.5 NA

Mollusks Sheepnose Plethobasus 

cyphyus LE AP, G, I Mussels 22.1 NA

Mollusks Clubshell Pleurobema 

clava LE AP, G, I Mussels 17.6 NA

Mollusks Southern 

clubshell 

Pleurobema 

decisum LE, CH AP, G Mussels 20.3 10.1 

Mollusks Dark pigtoe Pleurobema 

furvum LE, CH AP Mussels 42.2 25.8 

Mollusks Southern pigtoe Pleurobema 

georgianum LE, CH AP Mussels 12.5 1.0 

Mollusks Cumberland 

pigtoe 

Pleurobema 

gibberum LE AP Mussels 20.1 NA
SMCRA Biological Opinion - 10/16/2020

42

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Mollusks Ovate clubshell Pleurobema 

perovatum LE, CH AP Mussels 18.3 14.0 

Mollusks Rough pigtoe Pleurobema 

plenum LE AP, G, I, Mussels 17.4 NA

Mollusks Slabside 

pearlymussel 

Pleuronaia 

dolabelloides LE, CH AP Mussels 12.1 3.9 

Mollusks Texas hornshell Popenais popeii LE G Mussels 8.0 NA

Mollusks Fat pocketbook Potamilus capax LE G, I Mussels 21.4 NA

Mollusks Inflated 

heelsplitter

Potamilus 

inflatus LT AP, G Mussels 21.8 NA

Mollusks Triangular 

kidneyshell 

Ptychobranchus 

greenii LE, CH AP Mussels 24.0 17.8 

Mollusks Fluted 

kidneyshell 

Ptychobranchus 

subtentum LE, CH AP Mussels 30.3 11.5 

Mollusks Rabbitsfoot Quadrula 

cylindrica 

cylindrica

LT, CH AP, G, I, WI Mussels 22.9 5.8 

Mollusks Rough 

rabbitsfoot

Quadrula 

cylindrica 

strigillata

LE, CH AP Mussels 26.0 8.6 
SMCRA Biological Opinion - 10/16/2020

43

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Mollusks Winged 

mapleleaf

Quadrula 

fragosa LE G Mussels 19.8 NA

Mollusks Cumberland 

monkeyface 

Quadrula 

intermedia LE AP Mussels 6.3 NA

Mollusks Appalachian 

monkeyface 

Quadrula sparsa LE AP Mussels 27.6 NA

Mollusks Pale lilliput Toxolasma 

cylindrellus LE AP Mussels 26.3 NA

Mollusks Rayed bean Villosa fabalis LE AP Mussels 4.2 NA

Mollusks Purple bean Villosa 

perpurpurea 

LE, CH AP Mussels 38.5 13.2 

Mollusks Cumberland 

bean

Villosa trabalis LE AP Mussels 40.3 NA

Mollusks Flat-spired 

three-toothed 

snail

Triodopsis 

platysayoides LT AP Terrestrial 

Snails 70.3 NA

Plants Northern 

monkshood 

Aconitum 

noveboracense LT AP Hydric Plants 8.5 NA

Plants Decurrent false 

aster

Boltonia 

decurrens LT I Hydric Plants 44.3 NA
SMCRA Biological Opinion - 10/16/2020

44

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Plants Navajo sedge Carex specuicola LT, CH CP Hydric Plants 1.1 0.0

Plants Morefield's 

leather-flower

Clematis 

morefieldii

LE AP Hydric Plants 32.8 NA

Plants Cumberland 

rosemary

Conradina 

verticillata

LT AP Hydric Plants 84.1 NA

Plants Pecos sunflower Helianthus 

paradoxus LT, CH CP Hydric Plants 1.5 0.0 

Plants Neches River 

rose-mallow

Hibiscus 

dasycalyx LT, CH G Hydric Plants 94.0 100.0 

Plants Texas golden 

gladecress

Leavenworthis 

texana LE, CH G Hydric Plants 91.0 100.0 

Plants Louisiana 

quillwort

Isoetes 

louisianensis LE G Hydric Plants 11.4 NA

Plants Pondberry Lindera 

melissifolia LE G Hydric Plants 3.6 NA

Plants White fringeless 

orchid

Platanthera 

integrilabia LT AP, G Hydric plants 21.4 NA

Plants Eastern prairie 

fringed orchid

Platanthera 

leucophaea LT AP, I Hydric Plants 37.9 NA
SMCRA Biological Opinion - 10/16/2020

45

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Plants Harperella Ptilimnium 

nodosum LE AP Hydric Plants 6.8 NA

Plants Kral's water 

plantain

Sagittaria 

secundifolia LT AP Hydric Plants 15.9 NA

Plants Green pitcher 

plant

Sarracenia 

oreophila 

LE AP Hydric Plants 25.6 NA

Plants Northeastern 

bulrush 

Scirpus 

ancistrochaetus LE AP Hydric Plants 5.2 NA

Plants Virginia spiraea Spiraea 

virginiana 

LT AP Hydric Plants 43.5 NA

Plants Ute ladies' 

tresses

Spiranthes 

diluvialis LT NRM Hydric Plants 6.3 NA

Plants Alabama streaksorus fernThelypteris 

pilosa var. 

alabamensis 

LT AP Hydric Plants 4.8 NA

Plants Tennessee 

yellow-eyed 

grass

Xyris 

tennesseensis LE AP Hydric Plants 11.8 NA

Plants Large-fruited 

sand-verbana 

Abronia 

macrocarpa 

LE G Mesic plants 86.0 NA

Plants Price's potatobeanApios priceana LT AP, G, I Mesic plants 9.9 NA
SMCRA Biological Opinion - 10/16/2020

46

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Plants Georgia 

rockcress

Arabis georgiana LT AP, G Mesic plants 12.7 NA

Plants Mead's 

milkweed

Asclepias meadii LT I, WI Mesic plants 48.9 NA

Plants American hart'stongue fern

Asplenium 

scolopendrium LT AP Mesic plants 10.2 NA

Plants Alabama leather 

flower

Clematis socialis LE AP Mesic plants 13.3 NA

Plants Leafy prairie 

clover 

Dalea foliosa LE I Mesic plants 6.4 NA

Plants Earthfruit Geocarpon 

minimum

LT G, WI Mesic plants 53.7 NA

Plants Pagosa 

skyrocket

Ipomopsis 

polyantha LE CP Mesic plants 17.2 NA

Plants Small whorled 

pogonia 

Isotria 

medeoloides LT AP, I Mesic plants 3.7 NA

Plants Prairie bush 

clover 

Lespedeza 

leptostachya LT I Mesic plants 23.1 NA

Plants Mohr's Barbara 

button 

Marshallia 

mohrii LT AP Mesic plants 26.4 NA
SMCRA Biological Opinion - 10/16/2020

47

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Plants Cumberland 

sandwort

Arenaria 

cumberlandensis LE AP Mesic plants 85.1 NA

Plants Short's 

bladderpod 

Physaria globosa LE, CH AP Mesic plants 7.5 0.5 

Plants Western prairie 

fringed orchid

Platanthera 

praeclara LT CP Mesic plants 16.1 NA

Plants Gentian pinkroot Spigelia 

gentianoides LE AP Mesic plants 26.0 NA

Plants Navasota 

ladies’-tresses

Spiranthes 

parksii LE G Mesic plants 56.0 NA

Plants Running buffalo 

clover 

Trifolium 

stoloniferum 

LE,

proposed 

for 

delisting 

8/2019 

AP Mesic plants 18.2 NA

Plants Welsh's 

milkweed

Asclepias welshii LT, CH CP Xeric Plants 4.2 0.0 

Plants Mancos milkvetchAstragalus 

humillimus LE CP Xeric Plants 38.3 NA

Plants Black lace 

cactus

Echinocereus 

rechenbachii var. 

albertii

LE G Xeric Plants 33.0 NA
SMCRA Biological Opinion - 10/16/2020

48

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Plants Zuni fleabane Erigeron 

rhizomatus LT CP Xeric Plants 14.7 NA

Plants Dudley Bluffs 

bladderpod 

Lesquerella 

congesta 

LT CP Xeric Plants 33.6 NA

Plants Kodachrome 

bladderpod 

Lesquerella 

tumulosa LE CP Xeric Plants 13.0 NA

Plants San Rafael 

cactus

Pediocactus 

despainii LE CP Xeric Plants 10.5 NA

Plants Knowlton's 

cactus

Pediocactus 

knowltonii LE CP Xeric Plants 44.8 NA

Plants Peebles Navajo 

cactus

Pediocactus 

peeblesianus var. 

peeblesianus 

LE CP Xeric Plants 3.5 NA

Plants Winkler 

pincushion 

cactus

Pediocactus 

winkleri LE CP Xeric Plants 12.0 NA

Plants Parachute 

beardtongue 

Penstemon 

debilis LT, CH CP Xeric Plants 0.56 0.0 

Plants Clay phacelia Phacelia 

argillacea LE CP Xeric plants 1.5 NA

Plants North Park 

phacelia

Phacelia 

formosula LE NRM Xeric Plants 3.5 NA
SMCRA Biological Opinion - 10/16/2020

49

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Plants DeBeque 

phacelia

Phacelia 

submutica LT, CH CP Xeric Plants 15.8 1.1 

Plants Dudley Bluffs 

twinpod

Physaria 

obcordata LT CP Xeric Plants 33.6 NA

Plants Colorado 

hookless cactus

Sclerocactus 

glaucus LT CP Xeric Plants 15.1 NA

Plants Mesa Verde 

cactus

Sclerocactus 

mesae-verdae LT CP Xeric Plants 38.3 NA

Plants Wright fishhook 

cactus

Sclerocactus 

wrightiae LE CP Xeric Plants 12.0 NA

Reptiles Black pinesnake Pituophis 

melanoleucus 

lodingi 

LT, CH G Snakes 9.1 10.4 

Reptiles Louisiana 

pinesnake 

Pituophis 

ruthveni LT G Snakes 57.0 NA

Reptiles Northern 

Mexican 

gartersnake

Thamnophis 

eques megalops LT CP Snakes 0.6 NA

Reptiles Narrow-headed 

gartersnake

Thamnophis 

rufipunctatus LT, PCH CP Snakes 0.8 UTD

Reptiles Eastern 

massasauga

Sistrurus 

catenatus 

LT AP, I, WI Snakes 24.3 NA
SMCRA Biological Opinion - 10/16/2020

50

Category Common name Scientific name Federal 

Status

Coal Basin Guild

Total Range Area 

Overlapping 

Mineable Coal (%)

Total Critical Habitat 

Overlapping 

Mineable Coal (%)

Reptiles Bog turtle Clemmys 

muhlenbergii LT AP Turtles 0.7 NA

Reptiles Yellow blotched 

map turtle

Graptemys 

flavimaculata LT G Turtles 11.7 NA

Reptiles Ringed map 

turtle

Graptemys 

oculifera LT G Turtles 30.3 NA

Reptiles Flattened musk 

turtle

Sternotherus 

depressus 

LT AP Turtles 43.0 NA
SMCRA Biological Opinion - 10/16/2020

51

7 ENVIRONMENTAL BASELINE

The Environmental Baseline refers to the condition of the listed species or its designated 

critical habitat in the action area, without the consequences to the listed species or 

designated critical habitat caused by the proposed action. The environmental baseline 

includes the past and present impacts of all Federal, State, or private actions and other 

human activities in the action area, the anticipated impacts of all proposed Federal projects 

in the action area that have already undergone formal or early section 7 consultation, and 

the impact of State or private actions which are contemporaneous with the consultation in 

process. The consequences to listed species or designated critical habitat from ongoing 

agency activities or existing agency facilities that are not within the agency's discretion to 

modify are part of the environmental baseline (50 C.F.R. § 402.02). 

Due to the large size and widespread distribution of the Action Area, a detailed review of 

all past and present impacts to all of the species and critical habitats represented within 

the guilds is not feasible, nor is it required. Therefore, this programmatic Opinion relies 

on a general discussion of stressors to ESA-proposed and -listed species and proposed 

and designated critical habitat that, while generalized, are reasonably certain to occur 

within the Action Area.

OSMRE’s biological assessment includes an environmental baseline discussion that 

adequately addresses the needs for this Opinion for the scale of this analysis related to the 

effects of surface coal mining and the surface effects of underground coal mining. As 

noted in OSMRE’s biological assessment, “[g]iven the programmatic nature of this 

consultation on a nationwide regulatory program, this consultation relies on a 

generalized discussion of past and present activities that have influenced the status of 

species within the action area which are grouped as guilds for the purpose of this 

[biological assessment]. As previously mentioned, more detailed, site-specific 

information contributing to the environmental baseline will be assessed for subsequent, 

individual permit decisions made by states via the technical assistance process (i.e., the 

exchange of information with the Service as required under SMCRA implementing 

regulations and described in the description of the action [SMCRA Coordination 

Process]), or for subsequent, individual permit decisions made by OSMRE that are 

subject to ESA § 7(a)(2) requirements. 16 U.S.C. §§ 1536 and 30 U.S.C. 1257.” 

The larger discussion excerpted from the biological assessment is provided in Appendix 

D, and describes the major environmental baseline activities associated with effects of 

surface coal mining and the surface effects of underground coal mining on species and 

critical habitat. We briefly describe other aspects of the Environmental Baseline in the 

following paragraphs, including climate change, habitat destruction and modification, 

invasive species, pollution, harvest, and mining.

Climate Change 

All of the species and critical habitats represented within the guilds discussed in this 

programmatic Opinion are, or may be, impacted by global climatic change. The 

Intergovernmental Panel on Climate Change (IPCC) estimated that average global land and sea 

surface temperature has increased by 0.85 °C (± 0.2) since the late-1800s, with most of the
SMCRA Biological Opinion - 10/16/2020

52

change occurring since the mid-1900s (IPCC 2013). This temperature increase is greater than 

what would be expected given the range of natural climatic variability recorded over the past 

1,000 years (Crowley and Berner 2001). The IPCC estimates that the last 30 years were likely 

the warmest 30-year period of the last 1,400 years, and that global mean surface temperature 

change will likely increase in the range of 0.3 to 0.7 °C over the next 20 years.

Warming water temperatures attributed to climate change can have significant effects on 

survival, reproduction, and growth rates of aquatic organisms (Staudinger et al 2012). For 

example, warmer water temperatures have been identified as a factor in the decline and 

disappearance of mussel and barnacle beds in the Northwest (Harley 2011). Shifts in migration 

timing of pink salmon (Oncorhynchus gorbuscha), which may lead to high pre-spawning 

mortality, have also been tied to warmer water temperatures (Taylor 2008). Increasing 

atmospheric temperatures have already contributed to changes in the quality of freshwater, 

coastal, and marine ecosystems and have contributed to the decline of populations of endangered 

and threatened species (Karl et al. 2009; Littell et al. 2009).

Climate change is also expected to impact the timing and intensity of stream seasonal flows 

(Staudinger et al 2012). Warmer temperatures are expected to reduce snow accumulation and 

increase stream flows during the winter, cause spring snowmelt to occur earlier in the year, and 

reduced summer stream flows in rivers that depend on snow melt. As a result, seasonal stream 

flow timing will likely shift significantly in sensitive watersheds (Littell et al. 2009). Warmer 

temperatures may also have the effect of increasing water use in agriculture, both for existing 

fields and the establishment of new ones in once unprofitable areas (ISAB 2007). This means 

that streams, rivers, and lakes will experience additional withdrawal of water for irrigation and 

increasing contaminant loads from returning effluent. Changes in stream flow due to use changes 

and seasonal run-off patterns may alter predator-prey interactions and change species 

assemblages in aquatic habitats. For example, studies conducted in the southwest and Great 

Plains have documented the complete loss of some macroinvertebrate species as the duration of 

low stream flows increased (Sponseller et al 2010, Burk and Kennedy 2013). The frequency and 

intensity and of droughts is likely to increase across the southwest (Karl et al. 2009), leading to 

changes in aquatic species composition and community function. Shifts in aquatic community 

structure and function in groundwater-dependent ecosystems may be profound. Changes in 

drought frequency and intensity, combined with increasing human demands on groundwater can 

cause a shift from perennial to intermittent flow regimes (Burk and Kennedy 2012). Predicted 

global climate change of increased frequency and intensity of droughts combined with increasing 

human demands placed on groundwater systems, are predicted to have a detrimental impact on 

the remaining groundwater-dependent ecosystems in the Great Plains and Southwest (Fritz and 

Dodds 2004; IPCC 2007a; Bogan and Lytle 2011; Burk and Kallberg 2012). 

Warmer water also stimulates biological processes which can lead to environmental hypoxia. 

Oxygen depletion in aquatic ecosystems can result in anaerobic metabolism increasing, thus 

leading to an increase in metals and other pollutants being released into the water column 

(Staudinger et al 2012). In addition to these changes, climate change may affect agriculture and 

other land development as rainfall and temperature patterns shift. Aquatic nuisance species 

invasions are also likely to change over time, as ecosystems become less resilient to disturbances 

(USEPA 2008). Invasive species that are better adapted to warmer water temperatures would 

outcompete native species that are physiologically geared towards lower water temperatures;
SMCRA Biological Opinion - 10/16/2020

53

such a situation currently occurs along central and northern California (Lockwood and Somero 

2011). 

In summary, the effects of climate change include increases in atmospheric temperatures, 

decreases in sea ice, and changes in sea surface temperatures, patterns of precipitation, severity 

and intensity of droughts, and sea level. Effects of climate change also include altered 

reproductive seasons/locations, shifts in migration patterns, reduced distribution and abundance 

of prey, and changes in the abundance of competitors and/or predators. Climate change is most 

likely to have its most pronounced effects on species whose populations are already in tenuous 

positions (Williams et al. 2008b).

Habitat Destruction and Modification

Habitat destruction and modification, including but not limited to that associated with mining, is 

perhaps the number one factor negatively affecting imperiled species. According to the U.S. 

Energy Information Administration (EIA), 669 coal mines were in production in the United 

States in 2019 and produced 706.3 million short tons of coal. In 2018, 679 mines were in 

production and produced 756 million short tons of coal (U.S. EIA 2020). While coal mining is 

ongoing, it is decreasing. Annually, mine operations contribute to the amount of habitat 

destroyed or modified within the Action Area; however, required reclamation provides 

alternative habitat to habitat impacted or modified by surface mining activities.

Streams, rivers, and other freshwater sources are found throughout the Action Area. Freshwater 

habitats are among the most threatened ecosystems in the world (Leidy and Moyle 1998).

Reviews of aquatic species’ conservation status over the past three decades have documented the 

cumulative effect of anthropogenic and natural stressors on freshwater aquatic ecosystems, 

resulting in a significant decline in the biodiversity and condition of indigenous fish, mussel and 

crayfish communities (Taylor et al. 2007; Jelks et al. 2008). Anthropogenic stressors are present 

to some degree in all water bodies of the United States, and are the result of many different 

impacts. These stressors often lead to long-term environmental degradation associated with 

lowered biodiversity, reduced primary and secondary production, and a lowered capacity or 

resiliency of the ecosystem to recover to its original State in response to natural perturbations 

(Rapport and Whitford 1999).

Many of our nation’s rivers and streams have been altered by non-mining related activities 

including dams, stream channelization, and dredging to stabilize water levels in rivers or lakes. 

When examining the impacts of large dams alone, it is estimated that 75,000 large dams have 

modified at least 600,000 miles of rivers across the country (IWSRCC 2011). For example, more 

than 400 dams exist in the Columbia River Basin alone (Columbia Basin Trust 2018). Habitat 

loss coupled with other stressors has led to impacts on fish communities as well. By the early 

1980s, approximately 81 percent of the native fish communities in the United States had been 

adversely affected by human activities (Judy et al. 1984).

Wetland habitats have been drained to make land available for agriculture; they have been filled 

to make land available for residential housing, commerce, and industry; they have been diked to 

control mosquitoes; and they have been flooded for water supply. Efforts to create and restore 

wetlands and other aquatic habitats by agencies of Federal, State, and local governments, nongovernmental organizations, and private individuals have dramatically reduced the rate at which 

these ecosystems have been destroyed or degraded, but many aquatic habitats continue to be lost 

each year. Between 2006 and 2009, approximately 13,800 acres of wetlands were lost per year
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(Dahl 2011). While this is significantly less than losses experienced in the previous decades, an 

estimated 72 percent of U.S wetlands have already been lost when compared to historical 

estimates (Dahl 2011).

As with aquatic habitats, terrestrial ecosystems are also experiencing declines and degradation 

from a myriad of human-related activities. Data from the USDA suggests more than 398,000 

acres of grasslands, forests, and other lands were converted to cropland between 2011 and 2012 

(USDA 2013) (Figure 2). Conversion of natural lands also occurs from urbanization. Beginning 

the 1600s and continuing into the early 20th century, forests of the United States were harvested 

at an alarming rate (Masek et al. 2011). Over the last 100 years, the area of forest cover in the 

United States has been relatively stable (Masek et al. 2011), though reforested areas may not 

provide the same quality of habitat as unharvested, old-growth forests for ESA-proposed and - 

listed species. Through an analysis of threat data compiled from Federal Register documents, 

Czech et al. (2000) identified urbanization and agriculture as the second and third most common 

causes of species endangerment in the United States, behind non-native species interactions.

Habitat conversion is occasionally associated with postmining land use changes away from 

premining conditions.

Figure 2. The conversion of land to cropland in 2012 (USDA 2013).

ESA-proposed and -listed species requiring ephemeral habitats, such as those maintained by fire or 

flooding, have experienced range reduction because the stochastic events that maintain their habitat 

are often incompatible with human cohabitation. Suppression of wildfires and natural flood events 
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that would occasionally disturb climax ecological communities and create early successional stage 

and transitory habitat have reduced habitat available for many species.

Invasive Species

Invasive species are non-native species capable of causing economic or ecological impacts in 

areas where they become established. Ecological impacts from biological invasion include, but 

are not limited to: predation; disease transmission; competition for food, light, space; and 

hybridization. The rate of species invasion has increased over the past 40 or more years due to 

human population growth, alterations of the environment, and technological advances that allow 

for the rapid movement of people and products (Pimentel et al. 2005). Invasive species are 

considered a contributing factor in the decline of 49 percent of the imperiled species in the 

United States (Wilcove et al. 1998).

There are an estimated 50,000 or more non-native terrestrial and aquatic plant species established 

in the United States, many of which are outcompeting native plants for habitat (Pimentel et al.

2005). In some cases non-native plants are capable of completely dominating new habitats and 

form dense monocultures, completely excluding other native plants. Approximately 97 nonnative birds exist in the United States, many of which compete with or displace native birds and 

provide a vector for avian diseases (Pimentel et al. 2005). Approximately 53 species of reptiles 

and amphibians have been introduced to the United States, which often prey upon native species 

(Pimentel et al. 2005). More than 4,600 non-native invertebrate species inhabit the United States, 

some of which are well known for vast ecological impacts, including the decline or extirpation of 

native species (Pimentel et al. 2005).

Pollution 

In addition to direct loss and alteration of aquatic habitat, many aquatic ecosystems have been 

impacted by various contaminants and pollutants. In 2008, the Heinz Center for Science, 

Economics and the Environment (Heinz Center) published a comprehensive report on the 

condition of our nation’s ecosystems. In their report, the Heinz Center noted the following:

• From 1992 to 2001, benchmarks for the protection of aquatic life were exceeded in 50 

percent of streams tested nationwide—83 percent of streams in urbanized areas—and 94 

percent of streambed sediments.

• Contaminants were detected in approximately 80 percent of sampled freshwater fish and 

most of these detected contaminants exceeded wildlife benchmarks (1992 to 2001 data) 

(Gilliom et al 2006). 

• Nearly all saltwater fish tested had at least five contaminants at detectable levels, and 

concentrations exceeded benchmarks for the protection of human health in one-third of 

fish tissue samples—most commonly DDT, PCBs, PAHs, and mercury (USEPA 2007). 

Toxic contaminants, as noted above, have been documented in the Lower Columbia River and its 

tributaries (LCREP 2007). More than 41,000 waters are listed as impaired by pollutants that 

include mercury, pathogens, sediment, other metals, nutrient, and oxygen depletion, and other 

causes (USEPA 2013a). Pennsylvania reported the greatest number of impaired waters (6,957), 

followed by Washington (2,420), Michigan (2,352), and Florida (2,292). These figures likely
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underestimate the true number of impaired waterbodies in the U.S. The EPA estimates that 50 

percent of the nation’s streams (approximately 300,000 miles) and 45 percent of the nation’s 

lakes (approximately seven million acres) are in fair to poor condition for nitrogen or phosphorus 

levels relative to reference condition waters (USEPA 2013b). However, data submitted by the 

States indicates that only about half of the national Aquatic Resource Surveys’ estimate (155,000 

miles of rivers and streams and about four million acres of lakes) have been identified on EPA’s 

303(d) impaired waters list for nutrient related causes (USEPA 2013b).

Water quality problems, particularly the problem of non-point sources of pollution, have resulted 

from changes humans have imposed on the landscapes of the United States over the past 100 to 

200 years. The mosaic of land uses associated with urban and suburban centers has been cited as 

the primary cause of declining environmental conditions in the United States (Flather et al. 1998) 

and other areas of the world (Houghton 1994). Most land areas covered by natural vegetation are 

highly porous and have very little sheet flow; precipitation falling on these landscapes infiltrates 

the soil, is transpired by the vegetative cover or evaporates. The increased transformation of the 

landscapes of the United States into a mosaic of urban and suburban land uses has increased the 

area of impervious surfaces such as roads, rooftops, parking lots, driveways, sidewalks, etc., in 

those landscapes. Precipitation that would normally infiltrate soils in forests, grasslands and 

wetlands falls on and flows over impervious surfaces. That runoff is then channeled into storm 

sewers and released directly into surface waters (rivers and streams), which changes the 

magnitude and variability of water velocity and volume in those receiving waters.

Increases in polluted runoff have been linked to a loss of aquatic species diversity and 

abundance, including many important commercial and recreational fish species. In addition, 

many shellfish bed and swimming beach closures can be attributed to polluted runoff.

Water-quality concerns related to urban development include providing adequate sewage 

treatment and disposal, transport of contaminants to streams by storm runoff, and preservation of 

stream corridors. Water availability has been and will continue to be a major, long-term issue in 

many areas. It is now widely recognized that groundwater withdrawals can deplete stream flows 

(Morgan and Jones 1999), and one of the increasing demands for surface water is the need to 

maintain instream flows for fish and other aquatic biota.

Harvest 

Some ESA-listed species, such as salmonids and freshwater mussels, are economically important 

species harvested as food sources or ornamentally. Harvesting and exploitation, often associated 

with the pearl industry, is identified as a contributing factor in 18 percent of the imperiled 

freshwater mussels of the United States (Strayer et al. 2004). Generally speaking, after species 

are listed as threatened or endangered under the ESA, they receive protection from 

overharvesting since this action would require a permit issued by the Service. Therefore, 

although harvest is a historical threat to many species and illegal harvests still likely occur to 

some degree, harvesting now affects species primarily through closely regulated actions.

Mining

Mining has resulted in physical and chemical effects on surface waters and other habitats. For 

example, during the duration of some mining activities, vegetation is removed and surfaces 

remain exposed, topography is altered and surfaces are compacted, infiltration of rainwater and 

uptake of water into vegetation is reduced and consequently overland runoff of water is 

increased. The local geology has a profound influence on the quantity and quality of surface
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water and groundwater. Mining activities break rock into smaller fragments, exposing previously 

unexposed minerals and increasing the amount of surface area available for weathering. As 

weathering commences, chemical constituents contained within the rock are released to the 

environment. In the mining environment, these constituents would be released into waters on the 

site, which would then make their way to water treatment structures, such as sedimentation 

ponds, before being discharged from the permit area. Despite treatment, discharge from 

sedimentation ponds can demonstrate elevated levels of total dissolved solids. Constituents also 

make their way into groundwater and then are discharged as groundwater baseflow into 

receiving streams.

Mining activities can affect downstream water chemistry, which may in turn affect species, their 

habitat, and other resources on which they depend. Studies have shown that mining-impacted 

waterways often contain elevated levels of arsenic, selenium, iron, aluminum, manganese, and 

sulfate. These waters typically have lower alkalinity concentrations and lower pH, while specific 

conductivity and total suspended solids are typically higher, as compared to streams unimpacted 

by mining (Wangsness et al. 1981; Zuehls et al. 1984; Herlihy et al. 1990; Howard et al. 2001; 

Stauffer and Ferreri 2002; Bryant et al. 2002; Hartman et al. 2005; Pond et al. 2008; Petty et al. 

2010; U.S. EPA 2011; Presser 2013; Skogerboe et al. 1979).

Acid mine drainage has historically been a primary concern associated with coal mining due to 

the effects of low pH on the viability of the system for aquatic life and human health (Dills and 

Rogers 1974; Powell 1988; Sams and Beer 2000). The concern is relevant to mining nationwide, 

although contamination from acid mine drainage is more difficult to observe in western coal 

fields (e.g., Colorado Plateau, Northern Rocky Mountains and Great Plains), where the geology, 

soils and hydrology provide high buffering capacity (alkalinity), which neutralizes mine spoil 

and waste (Powell 1988; Lowry et al. 1983).

Excess spoil fills constructed during large-scale mining operations in steep-slope areas may 

impact aquatic ecosystems by, among other things, increasing ion concentrations in receiving 

waters. These impacts may occur both during the mining activity and after reclamation. Palmer 

and Bernhardt (2009) found that streams impacted by valley fills often have 30- to 40-fold 

increases in sulfate concentrations and that sulfate concentrations in receiving waters continued 

to increase after mining activities ended. In addition, streams and rivers below valley fills receive 

elevated concentrations of calcium, magnesium, bicarbonate ions, and often trace metals, leading 

to elevated conductivity levels in these waterways. Conductivity levels in receiving streams 

below valley fills contribute to biological impairment of aquatic ecosystems (Palmer and 

Bernhardt 2009). Biological impairment has been shown to occur in the form of, for example, 

shifts in the species diversity and reduced abundance and richness of Ephemeroptera taxa (Pond 

et al. 2008).

Direct impacts to streams from mining and reclamation activities also occur in association with 

the practice of mining through ephemeral, intermittent, and perennial streams. The impacts of 

large-scale mining operations upon the water quality of ephemeral, intermittent, and perennial 

streams in Central Appalachia are highlighted in Bernhardt and Palmer (2011). Research 

compiled in Bernhardt and Palmer (2011) demonstrated that multiple surface mines and valley 

fill activity within large watersheds resulted in increases in concentrations of sulfate, 

bicarbonate, calcium, and magnesium ions further downstream.
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Physical effects on surface waters include all those effects that would change the size (width and 

or depth) and location of the surface water. These effects occur from mining activities that 

include mining through surface waters, placement of fill in surface waters to cross them with 

mining roads, and placement of spoil or refuse in surface waters.

Excess spoil placement into streams is allowable under longstanding interpretations of the 

regulations and substantial effects of excess spoil generation on streams continue to occur, 

particularly in Appalachia. For example, a 2007, Times West Virginian article reported that 

surface mining permits issued between October 2001 and June 2005 affected approximately 535 

miles of streams, including 367 miles of streams in the Appalachian coal fields. More 

specifically, the West Virginia Department of Environmental Protection completed a report titled 

“Trends in Mining Fills and Associated Stream Loss in West Virginia 1984–2012” (Shank and 

Gebrelibanos 2013) in which the authors calculated stream loss due to spoil and refuse fill 

construction. The analysis indicated the following: completed or under construction fills included 

1,932 spoil fills and 392 refuse fills; fill acreage totaled 62,471 acres or approximately 97 square 

miles; direct stream loss (under the fills) totaled 764.3 miles (297.5 miles of intermittent and

466.8 miles of perennial streams); and indirect stream impacts above fills, including change in 

ecologic function, totaled 279.5 miles. The 2005 Mountaintop Mining EIS (U.S. EPA 2005) 

included two studies that estimate the effect of mountaintop mining and valley fills in West 

Virginia, Kentucky, Tennessee, and Virginia. The first study estimated that between 1985 and 

2001, 724 stream miles (1.2 percent of streams) were covered by valley fills (equating to 45 

miles per year). The second study estimated impacts of mountaintop mining and valley fills 

between 1992 and 2002 to be 1,200 stream miles (equating to approximately 110 per year), out 

of 58,998 streams in the study area.

Activities that involve land disturbance, such as mining and reclamation, increase the risk of 

erosion and, therefore have the potential to affect the quantity of sediment that reaches 

waterways. Sediments are a pollutant of waters because sediment particles can carry attached 

pollutants with them. They can also affect biological processes directly by burying or smothering 

aquatic organisms or their habitats, and reducing the amount of light available for photosynthesis 

or activities requiring visibility. Excessive sediment reduces stream depth, leads to increases in 

water temperatures and reductions in dissolved oxygen content (Slagle et al. 1986).

An unintended consequence of the storage function provided by sediment ponds is that the 

impoundment of the waters affects the timing and volume of water received downstream from 

the pond; peaks and lows in the hydrograph are smoothed out due to the impoundment and 

controlled release of the water. This, in turn, affects the physical and biological characteristics 

downstream. Captured runoff released from impounding structures such as sediment ponds can 

be a source of downstream channel instability. The energy potential of the water that was once 

used to transport sediment is now available to erode the receiving channel (Leopold and 

Maddock 1953). Limiting the frequency of flow and sediment delivered to streams below mined 

areas may initiate changes in channel form due to deposition of eroded sediment and mass 

wasting processes, altering the channel’s capacity to convey flow and causing subsequent 

channel incision or widening.

When streams are filled for any reason, the water that once made its way to that stream will find 

a new pathway. Flooding or, conversely, water deprivation, scouring, and gullies are all possible 

consequences of alterations of natural flow regimes. Additionally, changes in drainage divides,
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contributing area, and drainage density may affect how much runoff is contributed to the 

receiving stream system.

Quantity and rate of water flow are important hydrologic characteristics that help determine the 

water that will be available to support aquatic life and other stream benefits. Mining activities 

have had been documented to impact hydrologic characteristics. For example, higher infiltration 

rates on mined areas increased stream baseflow. Further, increased storage capacity in replaced 

mine spoils reduced peak flow in streams receiving drainage from mine sites (Corbett and 

Agnew 1968). Conversely, negative effects on streamflows have also been documented, 

particularly in the Appalachian Basin region. For example, there are documented cases of 

subsidence-induced stream dewatering caused by longwall mining operations in Pennsylvania 

and West Virginia (Wade 2008; Rauch et al. 1984; Hobba 1993; Stout 2004). In some cases, the 

streamflow rebounded within months while other cases have shown the dewatering to persist for 

years.

Mining can also affect groundwater. A United States Geological Survey (USGS) study (Eberle 

and Razem 1985) investigating the effects of surface mining in small watersheds of the 

Allegheny Plateau in Ohio identified a change in upper aquifers associated with surface coal 

mining from calcium bicarbonate to calcium sulfate predominated water. Following reclamation, 

dissolved sulfate, iron, and manganese in the upper aquifers generally exceeded U.S. and Ohio 

EPA drinking water standards. These water sources generally did not demonstrate these 

exceedances prior to reclamation. Another USGS study (Paybins et al., 2000), investigating 

groundwater water quality downgradient of reclaimed surface coal mines, showed lowered pH 

and increased sulfate concentrations at sampling locations affected by mining. Paybins et al. 

(2000) showed higher sulfate concentrations in groundwater in shallow wells within 1,000 feet of 

reclaimed surface mines. This study also documented higher iron, manganese, and aluminum 

concentrations within about 2,000 feet of reclaimed surface mines (Paybins et al. 2000). An 

additional USGS study focusing on groundwater resources in the Allegheny and Monongahela 

River Basins found groundwater in shallow private domestic wells near reclaimed surface coal 

mines had higher concentrations of sulfate, iron, and manganese compared to unmined areas, 

even after all mining and reclamation had been completed (Anderson et al. 2000).

Mining activities can affect both the quantity and direction of groundwater flow. Water 

infiltration contributes to groundwater, and coal mining and reclamation activities can change 

overland flow and the amount of water that infiltrates the surface to ultimately recharge the 

groundwater system.

Overburden removal and coal excavation during surface coal mining results in a new 

groundwater static water level within the disturbance boundary. This consequently affects the 

hydraulic gradients surrounding the mined area, which can cause changes to direction of the 

groundwater flow. Although intact portions of the aquifer(s) may still exist beyond the extent of 

the coal removal area, water availability from within these aquifers will generally be reduced as 

the water flows towards the active pit in response to a lowering of hydraulic head values. As a 

result, water levels in existing wells installed in these aquifers may be lowered, potentially 

reducing the amount of water available for use (e.g., as drinking water) and the amount of water 

discharged downstream as baseflow.

Mines and preparation facilities may also use groundwater resources for their operations. Some 

mines must continuously pump water either from open pits or from groundwater to facilitate
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mining operations. The interception of groundwater and continuous mine pumping lowers the 

surrounding groundwater table. The lowered groundwater table may affect springs, streams, or 

users of groundwater resources. In doing so, water levels in affected aquifers may be 

significantly lowered over long periods of time (OSMRE 2007). These levels may recover over 

time once surface mining and reclamation activities are complete and the mine pits fill, 

saturating the backfilled spoil material. Once pumping and treatment of groundwater from 

underground mine ceases, groundwater properties such as pH may become more acidic and in 

turn metals and other contaminant bioavailability may increase posing a contaminant risk to 

aquatic organisms as a legacy effect (Belmer et al. 2019).

As noted above, additional information on mining-related activities can be found in Appendix D.

8 EFFECTS OF THE ACTION

Effects of the action are all consequences to listed species or critical habitat that are caused by 

the proposed action, including the consequences of other activities that are caused by the 

proposed action. A consequence is caused by the proposed action if it would not occur but for the 

proposed action and it is reasonably certain to occur. Effects of the action may occur later in time 

and may include consequences occurring outside the immediate area involved in the action. (See 

50 C.F.R. § 402.17). 

Programmatic Approach

As noted above, the scope of the OSMRE’s implementation of Title V of SMCRA is essentially 

nationwide, covering an array of operations that may affect a wide variety of ESA-proposed and

-listed species and proposed and designated critical habitat. Under SMCRA, OSMRE does not 

permit or authorize the majority of surface mining activities. SMCRA places enforcement and 

oversight authority with OSMRE; however, if OSMRE approves a State’s regulatory program, 

much of the responsibility for authorizing and regulating those activities lies with the State 

regulatory authority, whose program has met the minimum standards established in SMCRA and 

OSMRE’s regulations implementing SMCRA. Moreover, the specific State mining programs 

differ in regulatory approaches and detailed information on the specific size, scope, and 

operation of future mining activities is not available at the time of this programmatic 

consultation. In fact, because this is a consultation on regulations that are not self-implementing 

(i.e., the regulations are implemented only through future permits), it is not feasible, nor is it 

required, to conduct a meaningful site-specific and species-specific effects analysis in this 

Opinion. Therefore, the Service determined that a programmatic consultation is appropriate in 

determining whether OSMRE’s regulatory program implementing SMCRA is structured to 

ensure that no permit will be issued that is likely to jeopardize threatened and endangered species 

and destroy or adversely modify critical habitat. For future permits issued under the SMCRA 

regulatory program, site-specific and species-specific information will be available and assessed 

through the technical assistance process with the State regulatory authority or through stepdown, ESA Section 7 consultations with OSMRE as the regulatory authority.

Key Assumptions for the Effects Analysis

In developing this analysis, we made a number of key assumptions due to the lack of information 

and uncertainties surrounding the location, timing, frequency, and intensity of individual mining
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activities. They include:

• State regulatory authorities and OSMRE will adhere to SMCRA Title V regulations that 

specify many general environmental performance requirements, including requirements 

to minimize potential effects on ESA-listed species, e.g. 30 U.S.C. § 1265(b)(24).

• Where OSMRE is the regulatory authority, OSMRE will consult with the Service on the 

issuance of those permits pursuant to ESA section 7(a)(2) and in accordance with the 

interagency consultation regulations at 50 C.F.R. Part 402;

• State regulatory authorities will coordinate with the Service in accordance with the 

SMCRA Coordination Process described in an addendum to OSMRE’s 2020 Biological 

Assessment (and included as Appendix A of this Opinion). Accordingly,

o The Service will receive notification for all administratively complete 

applications for a permit, significant permit revision, or permit renewal submitted 

to the regulatory authority, 30 C.F.R. § 773.6; 

o The Service will receive fish and wildlife resource information and PEPs for 

applications determined by the regulatory authority to be administratively 

complete and that may affect ESA resources as outlined in the SMCRA 

Coordination Process (30 C.F.R. §§ 780.16 and 784.21);

o The protective measures, monitoring, and reporting developed through the 

SMCRA Coordination Process will minimize the adverse effects of surface coal 

mining and reclamation operations or coal exploration to levels that will avoid the 

likelihood of jeopardy to listed and proposed species and/or destruction and 

adverse modification of designated or proposed critical habitat;

o In situations where a State regulatory authority's proposed permitted action is not 

likely to jeopardize listed species or destroy or adversely modify critical habitat, 

the Service will limit its request for species-specific protective measures to those 

that involve only minor changes and do not alter the basic design, location, scope, 

duration, or timing of the action.

• In the event that coordination between a State regulatory authority and the Service 

pursuant to the SMCRA Coordination Process results in a dispute over recommended 

measures to avoid the likelihood of jeopardy to listed species or destruction/adverse 

modification of critical habitat, the parties will use the dispute resolution process 

described in an addendum to OSMRE’s 2020 Biological Assessment (Appendix B).

o In situations where a State regulatory authority’s proposed permitted action is not 

likely to jeopardize listed species or destroy or adversely modify critical habitat, 

the Service will engage in dispute resolution over minimization measures only 

when the anticipated take is of significant conservation consequence to the 

species.

• Regulatory authorities will conduct regular inspections of operations as required by 

SMCRA, averaging not less than one partial inspection per month, and one complete 

inspection per calendar quarter. A complete inspection is an on-site review of a person’s 

compliance with all permit conditions and requirements imposed under the State 

program, including those related to fish and wildlife. 30 C.F.R. § 840.11(b).

• If, as the result of an inspection, the regulatory authority determines that the operation is 

in violation of the federal or state program or any condition of an exploration approval or 

permit, the regulatory authority will either issue a notice of violation (NOV) to the
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operator or, if the violation creates an imminent danger to the public health or safety or is 

or can reasonably be expected to cause significant, imminent environmental harm, an 

order mandating the cessation of operations. 30 U.S.C. §§ 1268, 1271; 30 C.F.R. §§ 

840.13, 843.11, and 843.12.

• OSMRE and State regulatory authorities will utilize applicable authority, where it exists, 

to monitor the SMCRA regulatory programs these authorities may oversee, including 

Clean Water Act Section 402 and 404 and maintenance of the hydrological balance (these 

broader responsibilities under SMCRA help minimize effects to proposed and listed 

species and designated and proposed critical habitats).

• OSMRE and regulatory authorities will utilize their review of land use plans, 

environmental impact statements required by NEPA, and other roles in evaluating coal 

mining covered under cooperative agreements, or Federal coal leases on Federal lands, to 

ensure accurate application of SMCRA mandates to avoid and minimize impacts to listed 

species and/or critical habitat to levels that will avoid the likelihood of jeopardy to listed 

and proposed species and/or destruction and adverse modification of designated or 

proposed critical habitat for operations on Federal lands.

Evaluation of the Programmatic Consultation Criteria

As noted in our Approach to the Assessment section above, we use a programmatic approach to 

determine whether and to what degree OSMRE has structured their regulatory program to ensure 

its implementation is not likely to jeopardize the continued existence of proposed or listed 

species or result in the destruction or adverse modification of proposed or designated critical 

habitat. In this evaluation, we assess whether OSMRE fulfills the following criteria: (1) 

understand the scope of its action; (2) reliably estimate the physical, chemical, or biotic stressors 

that are likely to be produced as a direct or indirect result of their action; (3) minimize adverse 

effects of such activities on ESA-listed species and designated critical habitat; (4) identify, 

inform, encourage, and screen applicants for potential eligibility under or participation in the 

permitting activity; (5) continuously monitor and evaluate likely adverse effects on listed species 

and critical habitat; (6) monitor and enforce permit compliance; and (7) modify its action if new 

information (including inadequate protection for species or low levels of compliance) becomes 

available.

While we recognize that site-specific activities would be addressed on a permit-specific basis 

during the SMCRA Coordination Process with States, or through step-down consultations with 

OSMRE, in order to complete our analysis of the proposed action at the program-level, this 7- 

question approach allows us to consider how the overall implementation of OSMRE’s proposed 

action (which would include these site-specific processes) avoids jeopardy and adverse 

modification. We discuss each criterion and its applicability to the proposed action in the 

following paragraphs.

8.3.1 Understanding the Scope

OSMRE must understand the scope of its proposed action where either OSMRE or States (or 

Tribes, as applicable) is the regulatory authority, to ensure impacts to ESA-proposed and -listed 

species and designated and proposed critical habitat are appropriately evaluated. For this 

proposed action, we consider “scope” both in terms of geographic extent, as well as permitting 

and oversight.
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Congress enacted SMCRA to establish a nationwide program to protect society and the 

environment from the adverse effects of surface coal mining operations. SMCRA was also 

designed to assure that coal mining operations are not conducted where reclamation as required 

by SMCRA is not feasible or unsuitable, assure that surface coal mining operations are designed 

in a manner to protect the environment, assure that reclamation occurs as contemporaneously as 

possible, and to promote the reclamation of mined areas left without adequate reclamation prior 

to the enactment of SMCRA. Thus, by knowing the extent of the action area for each project 

(including “adjacent areas” as discussed previously), and by having a process in place by which 

such areas are identified as part of the permitting process, OSMRE, as well as the State 

regulatory authorities, would be able to determine the scope of the proposed action.

In evaluating whether OSMRE’s regulatory program under SMCRA is structured to allow 

OSMRE to understand the full scope of authorized mining effects, the Service considered how 

congruent the SMCRA regulatory definition of “adjacent area” was with the ESA regulatory 

definition of “action area”. Both terms limits are bounded by the effects of the action, not the 

immediate footprint of the mine. Therefore, we confirm that SMCRA regulations would appear 

to require applicants and regulatory authorities to understand the full scope of effects from 

mining on ESA trust resources, which in turn would enable OSMRE to better understand the 

geographic scope of its proposed action.

Additionally, the scope of the action includes all aspects of OSMRE’s implementation of Title V 

of SMCRA. OSMRE’s oversight authority is both permit-specific and programmatic. OSMRE is 

the regulatory authority for permitting activities where a State does not have primacy. However, 

the majority of permits issued under SMCRA will be issued by States, and OSMRE has an 

ongoing oversight role in the administration and enforcement of mining programs in the States 

that have assumed primary regulatory authority. Under SMCRA, as discussed above in section 

4.2.3, OSMRE has the authority to ensure compliance with State and Tribal mining permits.

OSMRE’s authority also includes subject matter expertise in SMCRA for actions on Federal 

lands and Indian lands.

Based on the biological assessment as well as this Opinion’s Description of the Action section 

and the Key Assumptions above, the Service anticipates that OSMRE, State regulatory 

authorities, and mining operators will adequately understand the scope of their respective actions 

under SMCRA. Thus, we anticipate that OSMRE would understand the scope of their action in 

terms of permitting and oversight.

8.3.2 Stressors

To determine if OSMRE’s implementation of Title V of SMCRA has been structured to reliably 

estimate the physical, chemical, or biological stressors that are likely to be produced as a direct 

or indirect result of their action, we reviewed the portions of the regulations that require OSMRE 

or the approved State regulatory authority to identify stressors likely to be produced by permitted 

mining activities. The identification of stressors associated with individual mining sites and the 

analysis of the effects on ESA-proposed and -listed species and designated and proposed critical 

habitats will be part of the SMCRA Coordination Process with the appropriate Service Field 

Office, as well as part of any step-down, ESA Section 7 consultation with OSMRE.
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We also evaluated the stressors (Table 1) associated with typical mining activities as identified in 

OSMRE’s biological assessment. These stressors lead to the response profiles of each species 

guild, as discussed in Section 8.1, above.
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Table 1. Stressor and activity deconstruction matrix.

Activity

Stressor

Exploration Erosion controlClearing/grubbingCoal excavationBackfillingRevegetation Spoil disposalCoal HaulingCoal processingCCR placementMonitoringPermitting

Ground disturbance X X X X X X X X X X

Vegetation removal X X X X

Noise X X X X X X X X X X

Dust X X X X X X X X X

Direct strikes X X X X X X X X X X

Surface flow 

alteration

X X X X X X X X

Groundwater 

alteration

X X X X X X X

Pollution/siltation X X X X X X X X

Invasive species X X X X X X X

Land use change X

Topography 

alteration

X X X X

Human presence X X X X X X X X X X X X

Surveys/monitoring X X

OSMRE, State regulatory authorities, and mining operators must understand the stressors and 

effects associated with their actions to ensure impacts to ESA-listed and -proposed species (and 

designated and proposed critical habitat) are adequately evaluated. For OSMRE-issued permits 

that may affect ESA-listed species or designated critical habitat, section 7(a)(2) consultation is 

required and will be performed separately (i.e., via step-down ESA section 7(a)(2) 

consultations). For OSMRE-issued permits that may jeopardize ESA-proposed species or 

adversely modify proposed critical habitat, ESA section 7(a)(4) conference is required and will 

be performed separately.

SMCRA regulations define the information requirements and the public notice process necessary 

for an application to be determined administratively complete by a regulatory authority. The 

information requirements include baseline information on the affected areas geology, hydrology, 

fish and wildlife resources and habitats. In order to obtain a permit, an applicant must provide 

baseline information about hydrology, geology, vegetation, soils, water quality, existing land 

uses, threatened and endangered species/critical habitat occurrences, and habitat suitability using 

a variety of field methods, some of which may involve sampling (30 U.S.C. § 1257(b); 30 C.F.R. 

Parts 773, 779, 780, 783, and 784).

The permit applicant must submit fish and wildlife resource information for both the permit area
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and the adjacent area (30 C.F.R. §§ 780.16(a) and 784.21(a)). The scope and level of detail for 

the resource information required with each permit “shall be determined by the regulatory 

authority in consultation with State and Federal agencies with responsibilities for fish and 

wildlife and shall be sufficient to design the protection and enhancement plan [(PEP)]” (30

C.F.R. §§ 780.16(a)(1) and 784.21(a)(1)).Specifically, Federal regulations require that all surface 

and underground coal mining permit applications include site-specific resource information 

about proposed, endangered, or threatened plants and animals and critical habitats listed under 

the ESA in either the permit area or the adjacent area (30 C.F.R. §§ 780.16(a)(2)(i) and 

784.21(a)(2)(i)). The resource information necessary to address species or habitat is required 

where the permit area or adjacent area includes habitats of unusually high value for fish and 

wildlife or “[o]ther species and habitats identified through agency consultation as requiring 

special protection under State or Federal law.” Id. at §§ 780.16(a)(2)(ii)-(iii) and 784.21(a)(2)(ii)- 

(iii).

Each permit application must include a PEP, which describes “how, to the extent possible using 

the best technology currently available, the operator will minimize disturbances and adverse 

impacts on fish and wildlife and related environmental values, including compliance with the 

Endangered Species Act,” and the PEP must include information about how enhancement of 

these resources will be achieved where practicable (30 C.F.R. §§ 780.16(b) and 784.21(b)).

The PEP must include protective measures that will be used during the active mining phase of 

operation (e.g., the establishment of buffer zones, selective location and design of haul roads and 

powerlines, and monitoring of surface water quality and quantity) and enhancement measures 

that will be used during the reclamation and postmining phase of operation to develop aquatic 

and terrestrial habitat (30 C.F.R.§§ 780.16(b)(3)(i)-(ii) and 784.21(b)(3)(i)-(ii)). The PEP must 

also be drafted in a manner consistent with the performance standards specified in the Federal 

regulations. 30 C.F.R. § 780.16(b)(1).

Once an applicant for a permit, a significant permit revision, or a permit renewal has submitted 

an administratively complete application, as assessed by the OSMRE or the State regulatory 

authority (depending on which entity is the regulatory authority for a given permit), the 

regulations require the applicant to provide public notice in newspapers of general circulation 

and specific notice to “[a]ll Federal or State governmental agencies with authority to lease 

permits and licenses applicable to the proposed surface coal mining and reclamation operation 

and which are part of the permit coordinating process developed in accordance with [30 U.S.C.

§§ 1253(a)(6) and 1254(h)] or 30 C.F.R. § 773.5;] or those agencies with an interest in the 

proposed operation, including...State and Federal fish and wildlife agencies... ” (30 C.F.R. § 

773.6(a)(3)(ii)). Thus, pursuant to the regulations, the Service must be notified once an 

administratively complete application for a permit, significant permit revision, or permit renewal 

has been submitted to the regulatory authority.

After notice has been provided, the Federal regulations require that the regulatory authority 

provide a reasonable period of time for the public and other agencies, such as the Service, to 

submit comments or objections to an application for a permit, significant permit revision, or 

permit renewal. Id. at § 773.6(b). In addition, persons having an interest that may be adversely 

affected by the decision on the application, as well as any officer or head of a governmental 

agency, such as the Service, can request an informal conference with the regulatory authority on
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the application (30 C.F.R. § 773.6(c)).

Finally, before any surface coal mining and reclamation permit application or application for a 

revision of a permit can be approved, the regulatory authority must find, in writing, based on 

information in the application, that the “operation would not affect the continued existence of 

endangered or threatened species or result in destruction or adverse modification of their critical 

habitats, as determined under the [ESA]” (30 C.F.R. §§ 773.15(j); 774.13(c)).

Also, as specified in the SMCRA Coordination Process (Appendix A), the Service anticipates 

that State regulatory authorities or the applicant will provide an official species list obtained 

through the Service’s Information for Planning and Consultation system (IPAC). The Service 

considers this an important first step in helping to determine which listed or proposed species, or 

proposed or designated critical habitats, may potentially be affected by the proposed permit 

activity.

SMCRA and its implementing regulations require regulatory authorities (as further clarified for 

State regulatory authorities in the SMCRA Coordination Process and 2020 DRP documents) to 

provide permit applications to the Service upon request, during which time the Service may 

provide technical assistance and develop species-specific protective measures and 

monitoring/reporting deemed necessary to minimize impacts on ESA-listed and proposed 

resources. The Service expects, through the regulatory authority’s, public’s, and the Service’s 

review of the information mandated in an administratively complete application, and through 

OSMRE’s oversight, individual mining facilities are ensured a thorough and adequate review of 

stressors associated with the project. For State-issued permits, mining operators and State 

regulatory authorities, with assistance from the Service, will be able to identify, minimize, and 

monitor potential stressors. A general overview of stressors commonly associated with coal 

mining are analyzed in this Opinion in the context of effects to species guilds (Appendices C and 

E). Consequently, we anticipate that OSMRE, State regulatory authorities, and mining operators 

will understand both the general types of stressors and site-specific stressors that are likely to 

occur from implementation of OSMRE’s program.

Thus, based on the information in the biological assessment, and the Description of the Action 

section of this Opinion and the Key Assumptions described above, the Service anticipates 

OSMRE, as the action agency implementing the proposed action, would be able to understand 

the stressors associated with their action.

8.3.3 Minimizing Adverse Effects

Several aspects of the proposed action are anticipated to minimize adverse effects to species and 

critical habitat. For example, PEPs, as required under SMCRA implementing regulations, are 

expected to contain measures to minimize disturbances or impacts to species and their critical 

habitats, as well as measures that enhance the protection of resources. Thus, PEPs would be 

expected to assist the regulatory authority in avoiding incidental take from occurring altogether 

such that incidental take coverage and associated species-specific protective measures to 

minimize incidental take would not be required. Similarly, SSPMs, where coordinated or 

developed in conjunction with the Service, are expected to avoid, minimize, and monitor the 

effects of the proposed mining action on ESA-listed and -proposed species and their critical
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habitats.9 Where OSMRE is the permitting authority, we anticipate that step-down ESA section 

7(a)(2) consultation would result in incorporation of suitable measures that would avoid or 

minimize effects.

9 While State regulatory authorities are not required to adopt the Service’s recommendations, the recommendations must be 

incorporated as mandatory conditions in the permit if incidental take coverage is desired.

Implementation of the performance standards required by SMCRA, on their own, will not 

necessarily eliminate adverse effects on ESA-proposed and listed species and designated and 

proposed critical habitat. However, through step-down ESA section 7(a)(2) consultation on 

OSMRE-issued permits and the SMCRA Coordination Process with State or Tribal regulatory 

authorities facilitated by the exchange of information as established in SMCRA, its 

implementing regulations, and further clarified in the SMCRA Coordination Process and 2020 

DRP documents, the Service will be able to provide to OSMRE or the regulatory authority 

additional site-specific and species-specific protective measures, monitoring, and reporting 

recommendations to further enhance the protection of listed or proposed species or designated or 

proposed critical habitat. By including the Service’s recommendations for protective measures, 

monitoring and reporting as a mandatory condition in the final permit, the regulatory authorities 

will further reduce the impacts of surface mining operations on ESA-proposed and -listed species 

and designated and proposed critical habitat.

The regulatory authorities are obligated to consider and address, within their administrative 

record, any information brought to their attention by the Service before making their permitting 

decision if listed or proposed species or designated or proposed critical habitat will likely be 

affected. OSMRE’s commitment to exercise its oversight authority to resolve any issues that 

arise between regulatory authorities and the Service further suggests adverse effects to ESAproposed and -listed species (and designated or proposed critical habitat) will be adequately 

minimized as a result of the permit application review process set forth in OSMRE’s biological 

assessment. OSMRE’s oversight authority includes, but is not limited to, assessing penalties, 

ordered revisions to permits, and substitution or withdrawal of the approved State program in 

whole or in part in accordance with OSMRE’s regulations at 30 C.F.R .Part 733.

For the reasons discussed above, the Service anticipates, for purposes of this Opinion, that issues 

related to ESA-proposed and -listed species, and designated and proposed critical habitats, will 

be adequately addressed during the opportunities for the Service to engage with the State 

regulatory authority, or OSMRE where it is the permitting authority, in the permitting process as 

established in SMCRA and described in OSMRE’s biological assessment and the SMCRA 

Coordination Process and 2020 DRP (in reviewing the permit application and the proposed 

permit). We anticipate that OSMRE, State regulatory authorities, and mining operators will be 

able to identify ways to avoid or minimize adverse effects from the activities covered under 

OSMRE’s Program.

Thus, based on the information in the biological assessment, and the Description of the Action 

section of this Opinion and the Key Assumptions described above, the Service anticipates 

OSMRE, as the action agency implementing the proposed action, has included ways in which 

adverse effects to listed and proposed resources can be sufficiently avoided or minimized.
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8.3.4 Identifying and Screening Applicants

OSMRE and State regulatory authorities have been permitting mining projects for decades under 

the existing SMCRA regulations and have developed and implemented tools to increase 

information sharing and public participation. OSMRE maintains two databases that support the 

effective screening of applicants and public participation process: 1) the Applicant Violator 

System (AVS); and 2) OSMRE’s website that contains an electronic database of oversight 

documents with a search capability.

AVS is an automated information system owned and operated by OSMRE. Information on 

applicants, permittees, operators, application and permit records, as well as unabated or 

uncorrected environmental violations of SMCRA are maintained in this nationwide database for 

OSMRE’s Federal and State programs. The primary purpose of AVS is to assist OSMRE and 

States in making a permit eligibility determination required under section 510(c) of SMCRA for 

applicants of surface coal mining permits. Section 510(c) of SMCRA prohibits issuance of a new 

permit to any applicant who owns or controls mining operations having unabated or uncorrected 

violations anywhere in the United States until those violations are abated or corrected or are in 

the process of being abated or corrected to the satisfaction of the agency with jurisdiction over 

the violation.

When OSMRE’s oversight activities identify an issue that could result in a failure by the State or 

Tribe to effectively implement, administer, enforce, or maintain any portion of its approved 

regulatory program, the OSMRE field or regional office will work with the State or Tribe to 

develop an action plan to resolve the problem before it escalates into a situation that could result 

in substitution of Federal enforcement or withdrawal of program approval under 30 CFR 733.12 

(https://www.osmre.gov/programs/oversight.shtm). OSMRE encourages public participation in 

the oversight process through publishing online selected oversight documentation on ODocs, 

providing access to OSMRE directives related to policies and procedures.

Furthermore, OSMRE Directive REG-8 establishes policies and procedures for oversight 

evaluations of State and Tribal regulatory programs. According to OSMRE’s website describing 

their oversight program (https://www.osmre.gov/programs/oversight.shtm), each year, OSMRE 

develops a performance agreement and evaluation plan to guide oversight activities within the 

State or Tribe for that year. That process includes solicitation and consideration of public input. 

OSMRE collaborates with the State or Tribe to the extent possible in developing the evaluation 

plan. OSMRE field and regional offices maintain an evaluation file and prepare an annual 

evaluation report for each State and Tribe. The Service anticipates mining operators will be 

successfully identified and screened as part of the permitting process through OSMRE’s 

oversight, implementation of State’s approved regulatory programs, and public participation.

Thus, based on the information in the biological assessment, and the Description of the Action 

section of this Opinion and the Key Assumptions described above, the Service anticipates 

OSMRE, as the action agency implementing the proposed action, has included a mechanism to 

adequately identify, inform, encourage, and screen applicants for potential eligibility under or 

participation in the permitting activities covered by OSMRE’s Program.
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8.3.5 Monitoring Effects

To ensure OSMRE’s regulatory program and the technical assistance coordination process 

described in this Opinion and the SMCRA Coordination Process and 2020 DRP adequately 

address ESA-related issues, monitoring of the biotic and abiotic effects from the mining facility 

are important.

The permit application must include a monitoring plan adequate to evaluate the impacts of the 

surface mining operation on groundwater and surface water in the proposed permit and adjacent 

areas and to ensure that the operation does not result in material damage to the hydrologic 

balance outside the permit area (e.g., consistent with the approved State program, where the State 

is the regulatory authority). Upon completing the technical review of the application, the 

regulatory authority may require revision of the plan to increase the frequency of monitoring, to 

require monitoring of additional parameters, or to require monitoring at additional locations, if 

the additional requirements would contribute to protection of the hydrologic balance.

As described in OSMRE’s biological assessment, SMCRA’s implementing regulations include 

examples of monitoring effects of surface mining in order to detect, minimize, and mitigate 

adverse impacts on surface water and groundwater from the operation during mining and 

reclamation. For example, all surface coal mining operations are required to monitor the surface 

water and groundwater within and adjacent to the permitted operation (30 C.F.R. § 780.21). In 

most States, mine permittees are required to submit analyses quarterly (30 C.F.R. § 780.21(j)(3)). 

Regulatory authorities will evaluate the water quality data periodically throughout the permit life 

cycle. Because water monitoring is permit-specific, these minimization techniques should be 

designed in a density and location sufficient to detect adverse effects during the operational life 

of the mine. Operators are required to minimize disturbances to the hydrologic balance within 

the permit area, prevent or control the discharge of pollutants into groundwater, and ensure 

compliance with applicable State and Federal water quality laws (30 C.F.R. §§ 816.41 and 

816.42). The permittee is required to review all water quality monitoring data and report to the 

regulatory authority if non-compliance occurs (30 C.F.R. § 816.41(c) and (e)).

The required groundwater monitoring (including identification of parameters) plan must address 

those water-quantity and water-quality characteristics that relate to the suitability of the 

groundwater for current and approved postmining uses. The regulatory authority may require 

drilling and development of additional wells if needed to adequately monitor the groundwater 

system. The permittee must take whatever steps are necessary to ensure that public health and the 

environment are protected through compliance with applicable performance standards, permit 

terms and conditions. The regulatory authority may require corrective actions through a notice of 

violation, a cessation order, or a required permit revision (e.g. 30 C.F.R. Part 840). 

Groundwater monitoring is required, and the plan for monitoring must relate to the suitability of 

the groundwater for current and approved postmining land uses. At a minimum, groundwater 

monitoring must measure total dissolved solids or specific conductance corrected to 25 °C, pH, 

total iron, total manganese, and water levels, and in most cases the permittee must submit data 

quarterly for each monitoring location to the regulatory authority. The regulatory authority may 

request testing for other analytes if deemed appropriate (30 C.F.R. § 780.21(b)(3)). 
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Surface water monitoring must be conducted in sufficient quality and quantity to sufficiently 

demonstrate seasonal variation and water usage. At a minimum, water quality parameters must 

include total suspended solids, total dissolved solids, pH, total iron and total manganese under 

the implementing regulations for SMCRA (30 C.F.R. § 780.21(b)(2)). Baseline acidity and 

alkalinity measurements are required for permit applications where the potential for acid mine 

drainage exists. Water quality information must also include, at a minimum, baseline information 

on seasonal flow rates.

As described earlier, each application must include fish and wildlife resource information for the 

permit area and adjacent area. For projects that may impact listed or proposed species or their 

proposed or designated critical habitat, the scope and level of detail for such information shall be 

determined by the regulatory authority in consultation10 with the Service (30 C.F.R. 780.16). The 

Service may recommend specific protective measures to minimize disturbances and adverse 

impacts to trust resources, including biological monitoring, and other protective measures for 

example, as part of the PEP. Any recommended monitoring or protective measures 

recommended by the Service in consultation with the regulatory authority must be conducted in 

the manner specified in the plan approved in the permit. Surface water and/or biological 

assessment data collection, analysis, and reporting requirements must comply with permit 

requirements. Biological monitoring data must be submitted to the regulatory authority on an 

annual basis, or more frequently if prescribed by the regulatory authority.

10 The term ”consultation” as used here is from SMCRA, and does not imply ESA section 7 

consultation. In this context, the use of that term is intended to generally mean ”coordination”, 

which may be through the SMCRA Coordination Process, where the State is the regulatory 

authority, or in step-down section 7 consultations, where OSMRE is the permitting authority.

Implementation of the monitoring practices associated with SMCRA, on their own, will not 

necessarily adequately monitor effects on ESA-proposed and -listed species or designated and 

proposed critical habitat in all cases. For example, listed species may have biological thresholds 

for water quality parameters such as conductivity that are lower than the state water quality 

standard for that constituent. Through step-down ESA section 7(a)(2) consultations on OSMREissued permits and the SMCRA Coordination Process with State or Tribal regulatory authorities, 

the Service will be able to provide to OSMRE or the regulatory authority additional site-specific 

and species-specific monitoring and reporting recommendations. If the State regulatory authority 

seeks incidental take coverage under this programmatic Opinion’s ITS, then the State regulatory 

authority would be required to incorporate monitoring provisions in the permit pursuant to ESA 

Section 7 (b)(4). By including the Service recommendations for monitoring and reporting as 

mandatory conditions in the final permit, the regulatory authorities will further ensure the effects 

of surface coal mining operations on ESA-proposed and -listed species and designated or 

proposed critical habitat are monitored. The regulatory authorities are obligated to consider and 

address any information brought to their attention by the Service before making their permitting 

decision if ESA-listed or -proposed species or designated or proposed critical habitat are 

potentially affected (30 C.F.R. § 773.6(b)(1) and 780.16 (a) and (b)). In view of the processes 

outlined and clarified in the SMCRA Coordination Process and 2020 DRP documents, 

OSMRE’s commitment to exercise its oversight authority to resolve any issues that arise 

between regulatory authorities and the Service, the monitoring of effects to ESA-listed and
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proposed species and their designated or proposed critical habitats will be adequately conducted 

as a result of the permit application review process set forth in this Opinion.

Thus, based on the information in the biological assessment, and the Description of the Action 

section of this Opinion and the Key Assumptions described above, the Service anticipates 

OSMRE, as the action agency implementing the proposed action, has included a mechanism to 

adequately monitor and evaluate adverse effects on listed species and critical habitat from the 

proposed activities covered by OSMRE’s Program.

8.3.6 Monitoring and Enforcing Compliance 

The monitoring and enforcement of the mining permit program and individual permits is an 

important aspect in evaluating the effectiveness of SMCRA and mining permit requirements. 

While OSMRE would monitor and provide oversight and enforcement for permitting where it is 

the regulatory authority, we also consider their monitoring and oversight where States (or Tribes) 

are the regulatory authority.

In general, SMCRA establishes a program of cooperative federalism that allows a State to 

assume primary jurisdiction (primacy) over the regulation of surface coal mining and 

reclamation operations within its borders once its regulatory program has been approved by the 

Secretary of the Interior. SMCRA requires that a State program demonstrate that the State’srules 

and regulations are consistent with regulations issued by the Secretary. Under 30 C.F.R.

730.5(a), this provision means that State laws and regulations must be no less stringent than, 

must meet the minimum requirements of, and must include all applicable provisions of SMCRA. 

Paragraph (b) of 30 C.F.R. 730.5 further specifies that this provision means that State laws and 

regulations must be no less effective than the Federal regulations in meeting the requirements of 

SMCRA.

If a State does not ensure that its program meets minimum standards, such as ensuring 

compliance with the ESA, 30 U.S.C. 1271 provides ways for OSMRE to correct the problem. 

OSMRE’s regulations at 30 C.F.R. Parts 732 and 733 define, procedures, and responsibilities for 

conducting oversight of State and Tribal regulatory programs.

The fundamental purpose of OSMRE’s oversight is to ensure that States and Tribes are 

effectively administering, implementing, maintaining, and enforcing their approved regulatory 

programs. To achieve that purpose, OSMRE evaluates the administration of each State and 

Tribal program at least annually. OSMRE also conducts inspections of surface coal mining and 

reclamation operations as necessary to monitor and evaluate the administration of approved State 

or Tribal programs. OSMRE prepares an Annual Evaluation Report for each State. In exercising 

its oversight responsibilities, OSMRE works with the States and Tribes to fulfill its oversight 

activities, while considering public input and maintaining its independence and objectivity to 

carry out its duties under SMCRA and 30 C.F.R. Part 842. 

OSMRE’s oversight authority is both permit-specific and programmatic. For alleged permitspecific violations, under 30 U.S.C. § 1271(a)(1), whenever OSMRE, on the basis of any 

information available, including receipt of information from any person, has reason to believe 

that any person is in violation of any requirement of SMCRA or any permit condition required 

by SMCRA, OSMRE must notify the State regulatory authority. The State regulatory authority
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then has ten days to take appropriate action to cause the violation to be corrected or show good 

cause for not taking action. 30 U.S.C. § 1271(a)(1); see also 30 C.F.R. §§ 842.11(b)(1), 

843.12(a)(2). 

“Appropriate action” includes enforcement or other action to correct the violation. 

Circumstances constituting “good cause” include a showing by the State regulatory authority that 

the possible violation does not exist under the approved State program. OSMRE will accept a 

State regulatory authority’s response to a TDN as constituting “appropriate action” or “good 

cause” unless the State regulatory authority’s response is arbitrary, capricious, or an abuse of 

discretion. OSMRE has promulgated regulations to enhance 30 C.F.R. Part 733 to add 

procedures for the development of corrective action plans. OSMRE currently provides for the 

use of corrective action plans in its internal Directive REG-23, but is now codifying this process. 

The purpose of corrective action is to ensure early identification of potential State regulatory 

program issues before the issues escalate. The codification of corrective action plans will give 

OSMRE another mechanism that will allow it to coordinate with a State regulatory authority to 

correct any systemic issue that OSMRE identifies in relationship to an approved State regulatory 

program in order to minimize the number of on-the-ground violations without resorting to the 

rare remedy of substitution or withdrawal of Federal enforcement.

OSMRE has recently published a clarification to its regulations at 30 C.F.R. Part 842. The 

regulatory revisions clarify how OSMRE responds to citizen complaints alleging that an 

operation is in violation of Federal or State standards or requirements, including those related to 

fish, wildlife, and related environmental values and resources. The proposed changes are 

designed to expedite and better coordinate enforcement resources among OSMRE and State 

regulatory authorities and eliminate unnecessary or duplicative enforcement efforts.

Under section 521(a)(2) of SMCRA, OSMRE must issue a cessation order when, on the basis of 

a Federal inspection, OSMRE determines that a condition, practice, or violation creates an 

imminent harm or danger. Under 521(a)(3) of SMCRA, OSMRE will take an enforcement 

action, including issuance of a notice of violation, if OSMRE determines that a violation exists 

after an inspection.

If OSMRE has reason to believe that a State is not effectively implementing, administering, 

maintaining, or enforcing any part of its approved program, the Director may begin a process of 

determining whether to substitute Federal enforcement for the State program or withdrawing 

approval of State programs. OSMRE’s enhancements to 30 C.F.R. Part 733 provides the 

procedures for when OSMRE identifies a problem with a State’s approved regulatory program. 

This enhancement to OSMRE’s existing regulations within this Part reinforces the concept that 

the focus of corrective actions should be on resolution of the problems. In brief, the recently 

issued enhancements to 30 C.F.R. Part 733 provide that when the OSMRE FOD identifies a State 

regulatory program issue , the FOD must attempt to work with the State to create a written 

Action Plan. If the State does not comply with the Action Plan, the FOD notifies the applicable 

OSMRE Regional Director. The Regional Director will coordinate with the FOD and the State to 

modify the Action Plan, if necessary, or he can recommend that the OSMRE Director initiate a 

process under 30 C.F.R. § 733.13 to substitute direct Federal enforcement for all or part of the 

State regulatory program or the withdrawal of approval of all or part of the State program. The 

procedures for substituting Federal enforcement for a State program or for withdrawing all or 

part of a State program include the creation of a record of the issue, a public hearing, and public 

comment period, to assist the Director in determining whether a State is not effectively
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implementing, administering, maintaining or enforcing any part of its approved State program 

before Federal enforcement is substituted or approval of the State program is withdrawn.

For the reasons discussed above, the Service anticipates OSMRE and State regulatory authorities 

will utilize the full extent of their respective authorities to monitor and enforce the mining 

regulatory programs these agencies oversee.

Thus, the Service finds that OSMRE, as the action agency implementing the proposed action, has 

included a mechanism to adequately monitor and enforce permit compliance for activities 

covered by OSMRE’s Program.

8.3.7 Modify the Action

As discussed above, where OSMRE is the regulatory authority, it has the ability and authority to 

modify mining permit programs and individual mining permits if they are inadequately 

protecting listed or proposed species and designated or proposed critical habitat or if new 

relevant information becomes available. OSMRE has the ability and authority to address 

individual mining permits if new information becomes available, or if the permit is not 

adequately protecting ESA resources.

OSMRE also has oversight authority of State coal mining programs. If, as a result of changes in 

SMCRA or Federal regulations, State programs are no longer in accordance with SMCRA or 

with the Federal regulations, SMCRA and OSMRE’s regulations require that the State program 

be amended. (See, e.g., 30 C.F.R § 732.17(e). If the Director determines that a State program 

amendment is necessary, the State regulatory authority must submit a proposed written 

amendment within 60 days of the notification (30 C.F.R. § 732.17(f)(1)). Within 30 days after 

submission of a State program amendment, OSMRE will publish a notice in the Federal 

Register that should include the text of the proposed amendment, dates of the public comment 

period, and the dates and location of public hearings (30 C.F.R. § 732.17(h)). OSMRE must 

approve or disapprove the amendment request within 30 days after the close of the public 

comment period.

Under the technical assistance coordination process outlined in SMCRA, OSMRE’s 

implementing regulations, and the SMCRA Coordination Process and 2020 DRP documents, 

coordination with the Service is required for permit applications with potential for ESA-listed or

-proposed species (or designated or proposed critical habitat) impacts. Similarly, where OSMRE 

is the permitting authority, step-down ESA section 7(a)(2) consultation with the Service would 

occur.

For the reasons discussed above, the Service anticipates the technical assistance coordination 

process as outlined in SMCRA, its implementing regulations, and further clarified in the 2020 

SMCRA Coordination Process and 2020 DRP documents, will ensure that no mining actions 

likely to jeopardize listed species or destroy or adversely modify proposed or designated critical 

habitat will occur. We also anticipate SMCRA permit applications will be modified and updated 

through the SMCRA Coordination Processes, or where listed species are subsequently observed 

after the permit has been granted, through additional coordination with the Service (as described 

above in Section 4.2.2.3, Additional Considerations Related to ESA-Listed Species). For
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permitting actions where OSMRE is the regulatory authority, the Service anticipates early 

interagency coordination, and step-down ESA section 7(a)(2) consultation, will ensure that no 

mining actions likely to jeopardize listed species or destroy or adversely modify critical habitat 

would occur.

Thus, the Service anticipates OSMRE, as the action agency implementing the proposed action, 

has included mechanisms to modify its action (i.e. implementation of the Program) if new 

information (including inadequate protection for species or low levels of compliance) becomes 

available.

Other Considerations

In addition to the seven questions described above that are related to OSMRE’s implementation 

of their Program, we also discuss related aspects of the proposed action in the sections below, 

including monitoring requirements, vegetative buffers, fill placement in streams, groundwater 

quality, and revegetation, as these are also relevant to our analyses.

8.4.1 Monitoring Requirements

Under the regulations, mining continues to affect downstream water chemistry in certain 

geographic areas based on geologic and topographic characteristics. Studies have shown that 

mining-impacted waterways may contain elevated levels of arsenic, selenium, iron, aluminum, 

manganese, and sulfate. These waters typically have lower alkalinity concentrations and lower 

pH, while specific conductivity and total suspended solids are typically higher, as compared to 

streams unimpacted by mining.

Although the regulations require baseline characterization of water quality, they do not establish 

standard protocols for determining the placement and number of water sampling points.

OSMRE’s regulations include a requirement that a permit application shall include a 

groundwater and surface water monitoring plan based upon the probable hydrologic 

consequences determination required under OSMRE’s regulations and the analysis of all 

baseline hydrologic, geologic, and other information in the permit. For surface water, this 

includes monitoring of parameters that relate to the suitability of the surface water for current 

and approved postmined land uses and to the objectives for the protection of the hydrologic 

balance and the effluent limitations for pH, total iron, total manganese, and total dissolved solids, 

total suspended solids or specific conductance corrected to 25 degrees Celsius, but they do not 

require monitoring of other constituents, such as selenium, that have also been scientifically 

linked to some coal mining activities. See 30 C.F.R. §§ 780.21(i) and (j) and 816.42. The 

regulations also do not expressly require baseline assessment of biological conditions in streams. 

Also, consistent with the OSMRE regulations, required groundwater and surface water 

monitoring plans should include flow (for surface water or water levels for groundwater) and 

baseline information on seasonal flow rates. It should be noted that for all point-source 

discharges, including monitoring for pH, total iron, manganese, and total suspended solids, must 

be accordance with the regulations of the CWA permitting authority.
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If there are water quality parameters or monitoring needs related to ESA-listed or -proposed 

species or designated or proposed critical habitat, the Service would provide species-specific 

protective measures to address. These species-specific protective measures will also be sitespecific and would be developed by the Service during the SMCRA Coordination Process. If 

specific parameters are known by the Service to be protective of the ESA resources, the Service 

can provide those parameters to the regulatory authority and mining applicant to facilitate 

monitoring. If the Service requires pre-mining data and the regulatory authority and mining 

permittee have not coordinated with the Service early in the permitting process, permitting 

delays could occur. Therefore, the Service routinely recommends that regulatory authorities and 

permit applicant contact the Service early in the permitting process. The Service anticipates the 

technical assistance coordination process as outlined in SMCRA, OSMRE’s implementing 

regulations, and as further clarified in the SMCRA Coordination Process and 2020 DRP 

documents will be implemented consistently and that, if necessary for specific ESA-listed 

resources, water quality and biological monitoring of water bodies will be addressed through 

species-specific protective measures. Likewise, the Service also assumes that such impacts 

would be addressed in a step-down ESA Section 7 consultation with OSMRE for projects in 

which OSMRE is the regulatory authority.

8.4.2 Vegetative Buffers

Vegetated buffer zones can slow overland water flow and allow sediment particles to settle out 

before reaching surface waters. SMCRA’s implementing regulations require a 100-foot buffer 

along perennial and intermittent streams, although the regulations allow the regulatory authority 

to grant an exception to this requirement, which routinely occurs. The exception review and 

decision process varies between regulatory authorities. If riparian corridors are in need of 

vegetation protection to avoid or minimize effects to ESA-listed or –proposed species or 

designated or proposed critical habitat, the Service will review proposed protective measures or 

will provide species-specific protective measures to avoid and minimize those impacts. These 

species-specific protective measures will be site-specific and would be developed by or in 

coordination with the Service during the SMCRA Coordination Process, or the step-down ESA 

section 7(a)(2) consultation (depending on the regulatory authority). The Service anticipates the 

technical assistance coordination process as outlined in SMCRA, OSMRE’s implementing 

regulations, and further clarified in the SMCRA Coordination Process and 2020 DRP documents, 

will be implemented consistently and that, if necessary for specific ESA-listed resources, 

vegetative buffer zones will be addressed through species-specific protective measures.

Likewise, the Service also assumes that such impacts would be addressed in a step-down ESA 

Section 7 consultation with OSMRE for projects in which OSMRE is the regulatory authority.

8.4.3 Fill Placement in Streams

Controlled excess spoil placement into streams is allowable under OSMRE’s regulations. (30

C.F.R. § 816.72). Effects of excess spoil generation on streams continue to occur, particularly in 

Appalachia. SMCRA regulations require that a permanent stream-channel diversion or a restored 

stream channel be designed and constructed so as to approximate the premining characteristics of 

the original stream channel, including riparian vegetation, but it does not require restoration of 

the stream’s biological condition or ecological function. Historically, some State regulatory 

authorities have allowed construction of excess spoil fills and coal mine waste disposal facilities 

in streams within the permit area, as long as the findings and probable hydrologic consequences
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determination can be made with respect to the remaining portion of the stream below the toe of 

the fill or facility (30 C.F.R. §§ 773.15, 780.21 and 784.14). If the determination of the probable 

hydrologic consequences indicates that adverse impacts on or off the proposed permit area may 

occur to the hydrologic balance, or that acid-forming or toxic-forming material is present that 

may result in the contamination of ground-water or surface-water supplies, then supplemental 

information will be required to plan remedial and reclamation activities (See 30 C.F.R. § 780.21 

and 784.14).

If there are streams where filling would adversely affect ESA-listed or -proposed species or 

designated or proposed critical habitats, the Service would provide species-specific protective 

measures to avoid and minimize those impacts. These species-specific protective measures will 

be site-specific and will be developed by the Service during technical assistance coordination. 

The Service anticipates that the environmental protection standards required by SMCRA in30

U.S.C. § 1265 and 1266), the technical assistance coordination process as outlined in SMCRA, 

OSMRE’s implementing regulations, and further clarified in the SMCRA Coordination Process 

and 2020 DRP documents, will be implemented consistently and that, if necessary for specific 

ESA-listed resources, streams whose impacts would negatively impact ESA resources will be 

addressed through species-specific protective measures. Likewise, the Service also assumes that 

such impacts would be addressed in a step-down ESA Section 7 consultation with OSMRE for 

projects in which OSMRE is the regulatory authority.

8.4.4 Groundwater Quality

In some locations, groundwater quality downgradient of reclaimed surface coal mines shows 

lower pH and increased sulfate, iron, manganese, and aluminum concentrations at sampling 

locations affected by mining. Overburden removal and coal excavation during surface coal 

mining results in a new groundwater static water level within the disturbance boundary. This 

consequently affects the hydraulic gradients surrounding the mined area, and may result in 

changes to direction of the groundwater flow. If there is groundwater in need of protection to 

avoid or minimize effects to ESA-listed or -proposed species or designated or proposed critical 

habitat, the Service would provide species-specific protective measures to avoid and minimize 

those impacts. These species-specific protective measures would be site-specific and developed 

by, or in coordination with, the Service during the SMCRA Coordination Process or step-down 

ESA section 7(a)(2) consultation (depending on the relevant regulatory authority). The Service 

anticipates the technical assistance coordination process as outlined in SMCRA, its 

implementing regulations, and further clarified in the SMCRA Coordination Process and 2020 

DRP documents, will be implemented consistently and that, if necessary for specific ESA-listed 

species , groundwater protection will be addressed through species-specific protective measures. 

Likewise, the Service also assumes that such impacts would be addressed in a step-down ESA 

Section 7 consultation with OSMRE for projects in which OSMRE is the regulatory authority.

8.4.5 Revegetation 

SMCRA regulations emphasize revegetation with native species, and the regulations that pertain 

to creating growth conditions for the return of forest land to its premining condition are located 

at 30 C.F.R. 816.111, 816.22 and 30 C.F.R. 701.5. Provisions within the SMCRA regulations 

require a revegetation plan, including being compatible with the postmining land use, being
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compatible with the plant and animal species of the area, and meeting the requirements of 

applicable state and federal seed, poisonous and noxious plant, and introduced species laws or 

regulations. Within section 515 of SMCRA, Congress prescribed several protective provisions 

designed to minimize impacts from mining conducted under Title V of the Act. See generally, 30

U.S.C. § 1265. Moreover, in cases where the operator does not salvage and redistribute all soil 

horizons, the seed bank contained within the topsoil is not returned to the site to facilitate 

reestablishment of vegetation and the loss of soil organic matter compaction of the soil during 

filling and grading reduces the quality of the soil for vegetative regrowth. The return to full site 

productivity may be delayed as a result. Mining can also facilitate conversion of land by making 

it economically feasible to clear and recontour a site, since these activities would transpire as a 

matter of course during the mining activity. However, if there are revegetation plans that would 

negatively affect ESA-listed or -proposed species or designated or proposed critical habitats, the 

Service would provide species-specific protective measures to avoid and minimize those 

impacts. These species-specific protective measures would be site-specific and would be 

developed by the Service during technical assistance coordination or during a step-down ESA 

Section 7 consultation with OSMRE, depending upon the relevant regulatory authority 

responsible for overseeing the specific project. The Service anticipates the technical assistance 

coordination process as outlined in SMCRA, OSMRE’s implementing regulations, and further 

clarified in the SMCRA Coordination Process and 2020 DRP documents, will be implemented 

consistently and that, if necessary for specific ESA-listed resources, vegetation whose 

destruction would negatively impact ESA resources will be addressed through species-specific 

protective measures. Likewise, the Service also assumes that such impacts would be addressed in 

a step-down ESA Section 7 consultation with OSMRE for projects in which OSMRE is the 

regulatory authority.

8.4.6 Summary

In summary, we anticipate the technical assistance coordination process as outlined in SMCRA, 

its implementing regulations, and further clarified in the SMCRA Coordination Process and 2020 

DRP documents, will provide a consistent approach to technical assistance coordination among 

regulatory authorities, permittees, and the Service. The Service anticipates issues related to ESAproposed and -listed species, and designated or proposed critical habitats, will be adequately 

addressed during the opportunities for the Service to engage in the permitting process as 

specifically defined by OSMRE’s regulations and the SMCRA Coordination Process attached to 

this Opinion (where States are the regulatory authority), or in step-down ESA section 7(a)(2) 

consultation.

Exposure and Response Analyses

The scope of OSMRE's implementation of Title V of SMCRA is widespread, covering an array 

of mining sites that may affect a wide variety of ESA- listed and proposed species and their 

critical habitats. Species listed or proposed for listing under the ESA have known ranges and 

critical habitats that overlap the Action Area to varying degrees, from no overlap to species or 

critical habitats that exist entirely within areas containing mineable coal (Table 1). While specific 

State mining programs may differ in regulatory approaches, SMCRA requires all approved 

programs must be in accordance with and satisfy minimum Federal standards. To a limited 

extent, it is also uncertain where and when applicants may ultimately apply for permits. Under
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these circumstances, it is not feasible to conduct a meaningful site-specific and species-specific 

exposure analysis at the level of this Opinion. The regulations are not self-implementing (i.e. it is 

implemented only through future permits). Rather, site- and species-specific exposure and 

response analyses will be conducted as part of the technical assistance coordination process 

among the State regulatory authority, mining permit applicant, and local Service office where the 

States have primacy over mining permits. For the purposes of this document, surface coal mining 

operations were assumed to be equally likely to occur anywhere in the Action Area.

While such analyses would be addressed at a site- or species-specific level in subsequent 

SMCRA Coordination Processes or step-down ESA section 7(a)(2) consultations, as noted 

above, we provide a high-level overview of considerations relevant to these analysis for each 

guild in Appendix E.

Cumulative Effects

Cumulative effects include the effects of future State, Tribal, local or private actions that are 

reasonably certain to occur in the action area considered in this Opinion. Future Federal actions 

are not considered in this section because they require separate consultation pursuant to section 7 

of the ESA. Declines in the abundance or range of many federally threatened, endangered, and 

species proposed for listing under the ESA are attributable to various human activities on 

Federal, State, and private lands, such as human population expansion and associated 

infrastructure development; construction and operation of dams along major waterways; water 

retention, diversion, or dewatering of springs, wetlands, or streams; recreation, including offroad vehicle activity; expansion of agricultural or grazing activities, including alteration or 

clearing of native habitats for domestic animals or crops; degradation of water quality; and 

introductions of non-native plant, wildlife, or fish or other aquatic species, which can alter native 

habitats or out-compete or prey upon native species. Within the large expanse covered by the 

Action Area, these activities are expected to continue within the range of various Federally 

protected wildlife, fish, and plant species, and will contribute to cumulative effects to the species.

Species with small population sizes, endemic locations, or slow reproductive rates will generally 

be more susceptible to cumulative effects. Cumulative effects will be further analyzed at the 

local landscape scale, as appropriate, during the technical assistance coordination process with a 

State or Tribal regulatory authority or stepdown ESA Section 7(a)(2) consultation with OSMRE, 

when site- and species-specific information is reviewed by local Service biologists familiar with 

the project area and the biology of local species.

9 CONCLUSION

In this Opinion, we have evaluated whether OSMRE has structured its SMCRA regulatory 

program to ensure that its implementation is not likely to jeopardize the continued existence of 

proposed or listed species or result in the destruction or adverse modification of proposed or 

designated critical habitat.

As an overarching protective standard, the OSMRE’s regulations implementing SMCRA 

establish that no permit application, or application for a significant revisions of a permit, shall be 

approved unless, for example, the State regulatory authority finds that “(t)he operation would not 

affect the continued existence of endangered or threatened species or result in destruction or
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adverse modification of their critical habitats, as determined under the Endangered Species Act 

of 1973” (30 C.F.R. § 773.15(j).

Based on our analysis of OSMRE’s regulations implementing SMCRA described above, and in 

light of the OSMRE’s 2020 biological assessment and its addenda evaluated in this Opinion, the 

Service finds that:

1) OSMRE, State regulatory authorities, and mining operators are required to adequately 

identify and understand the scope of their actions so as to identify when proposed or 

listed species or proposed or designated critical habitats may be affected;

2) the coordination procedures required in the SMCRA regulations and clarified in the 

SMCRA Coordination Process provided as an addendum to OSMRE’s 2020 biological 

assessment will ensure that stressors associated with projects subject to SMCRA 

regulation will be identified;

3) the step-down ESA section 7(a)(2) consultation process that will be used for projects 

for which OSMRE will be the regulatory authority, and the SMCRA Coordination 

Process and the associated dispute resolution process also provided as an addendum to 

OSMRE’s 2020 biological assessment that will be used when a State is the regulatory 

authority, are sufficient to ensure that adverse impacts of individual projects to proposed 

or listed species will be minimized and that project impacts that are likely to jeopardize 

the continued existence of proposed or listed species or destroy or adversely modify 

designated critical habitat will be avoided;

4) the SMCRA regulations are sufficient to ensure that mining operators will be 

successfully identified and screened as part of the permitting process;

5) the monitoring requirements of the SMCRA regulations, as may be supplemented on a 

project-specific basis through step-down ESA Section 7(a)(2) consultation when OSMRE 

is the regulatory authority or through implementation of the SMCRA Coordination 

Process when a State is the regulatory authority, are adequate to monitor the effects of 

permitted projects on proposed or listed species or proposed or designated critical habitat;

6) the regulations and OSMRE’s biological assessment establish that OSMRE and State 

regulatory authorities have adequate authority as established in SMCRA to monitor and 

enforce the mining regulatory programs they oversee; and

7) the regulations and OSMRE’s biological assessment establish that OSMRE has the 

ability and authority to make changes, at the individual permit and programmatic level, to 

the proposed action (i.e., implementation of OSMRE’s Program) if new information 

becomes available demonstrating ESA resources are not adequately protected. 

Accordingly, it is the Service’s biological opinion that OSMRE’s implementation of Title V of 

SMCRA through its existing regulations is not likely to jeopardize the continued existence of 

proposed or listed species and or destroy or adversely modify designated or proposed critical 

habitat. Although activities regulated under SMCRA have the potential to adversely affect listed 

species or designated critical habitat, the protective measures and project-specific coordination 

procedures outlined in SMCRA and its implementing regulations, and further clarified in the 

2020 biological assessment and associated addenda, are adequate to ensure that no permit issued 

under the SMCRA Title V regulatory program is likely to jeopardize proposed or listed species 

or result in the destruction or adverse modification of proposed or designated critical habitat.
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10 INCIDENTAL TAKE STATEMENT

Section 9 of the ESA and regulations issued pursuant to section 4(d) of the ESA prohibit the 

“take” of endangered and threatened species, respectively. “Take” is defined as to harass, harm, 

pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such 

conduct. “Harm” is further defined by the Service as an act which actually kills or injures 

wildlife, which may include significant habitat modification or degradation that results in death 

or injury to listed species by significantly impairing essential behavioral patterns, including 

breeding, feeding, or sheltering. “Incidental take” is defined as take that is incidental to, and not 

the purpose of, the carrying out of an otherwise lawful activity. Under the terms of sections 

7(b)(4) and 7(o)(2), taking that is incidental and not intended as part of the agency action is not 

considered to be prohibited taking under the ESA, provided that such taking is in compliance 

with the Terms and Conditions to carry out the Reasonable and Prudent Measures of this 

Incidental Take Statement.

For species proposed for listing under the ESA, the prohibitions against taking endangered 

species under section 9 of the ESA or under a Section 4(d) rule for threatened species do not 

apply until the species is listed. If the conference opinion is adopted as a biological opinion 

following a listing or critical habitat designation under section 4 of the ESA, the Reasonable and 

Prudent Measures, with their implementing Terms and Conditions, will be nondiscretionary.

Terms and Conditions must be undertaken by OSMRE and/or the State regulatory authority, as 

appropriate, for the exemption in section 7(o)(2) to apply.

For proposed mining activities in which the State regulatory authority has primacy and for which 

incidental take of ESA-listed species is reasonably certain to occur, the amount and extent of 

incidental take anticipated from these proposed actions will be quantified by the Service and 

evaluated on a project-specific basis through the SMCRA Coordination Process conducted 

between the Service and the State regulatory authorities and mandated in OSMRE’s regulations 

implementing Title V of SMCRA.

For Federal program mining activities in which OSMRE is the authority issuing permits, any 

incidental take anticipated to occur from these activities will be analyzed and quantified through 

project-specific, step-down ESA section 7(a)(2) consultations between the Service and OSMRE.

Section 7(b)(4) and 7(o)(2) of the ESA generally do not apply to listed plant species. However, 

limited protection of listed plants from take is provided to the extent that the ESA prohibits the 

removal and reduction to possession of Federally listed endangered plants or the malicious 

damage of such plants on areas under Federal jurisdiction, or the destruction of endangered 

plants on non-Federal areas in violation of State law or regulation or in the course of any 

violation of a State criminal trespass law.

Amount or Extent of Take Anticipated

While OSMRE’s biological assessment provided a list of species and critical habitats that may be 

affected by surface mining activities and an analysis of responses of ESA-listed and proposed 

species to stressors, the paucity of information regarding future mining projects that is available 

at the time of this programmatic consultation does not allow the Service to identify the specific 

locations in which future mining projects will occur, the specific activities associated with a 

particular mining permit, and the number of individuals that might be affected by such activities 

in order for the Service to conduct species and site-specific analyses. However, this information 

will be provided to the Service on a permit-specific basis as a result of future step-down ESA
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section 7(a)(2) consultations with OSMRE when OSMRE is the regulatory authority or through 

the SMCRA Coordination Process when a State is the regulatory authority, as discussed in this 

Opinion and OSMRE’s 2020 biological assessment. Both of these processes (i.e., subsequent 

Section 7 consultations and the technical assistance process) affords the Service the opportunity 

to evaluate project effects on a site- and species-specific basis.

For States or Indian lands for which OSMRE is the regulatory authority, any incidental take 

anticipated to be the consequence of regulated activities will be analyzed and quantified by the 

Service through project-specific, step-down ESA section 7(a)(2) consultations between OSMRE 

and the Service.

For States that are the approved regulatory authority, if it is determined through the SMCRA 

Coordination Process that take of listed species is reasonably certain to occur, the amount or 

extent of incidental take will be quantified by the appropriate Service Field Office in 

coordination with the State regulatory authority. The State regulatory authority and the Service 

will review reports and track the levels of take estimated through the SMCRA Coordination 

Process and exempted by this Incidental Take Statement.

OSMRE, State regulatory authorities, and mine operators will be afforded an exemption from the 

prohibition against take resulting from surface mining activities subject to regulation under 

SMCRA when those surface mining activities are carried out in accordance with the 

implementing regulations as described in OSMRE’s 2020 biological assessment, provided that 

they comply with the Reasonable and Prudent Measures and associated Terms and Conditions of 

this Incidental Take Statement.

If a State regulatory authority chooses not to follow, or is unable to comply with the Reasonable 

and Prudent Measures and associated Terms and Conditions of this Incidental Take Statement, 

they may seek protections from the take prohibitions of the ESA by obtaining take authorization 

pursuant to section 10(a)(1)(A) and 10(a)(1)(B) of the ESA or exemption through a separate ESA 

Section 7(a)(2) consultation if another Federal nexus exists.

This Incidental Take Statement does not apply if no prohibited take pursuant to Sections 9 or 

4(d) of the ESA is reasonably certain to occur as a result of a given project under the proposed 

action.

Reasonable and Prudent Measures

The following reasonable and prudent measures are necessary and appropriate to minimize 

impacts of incidental take to ESA-listed species.

1) Where OSMRE is the regulatory authority, OSMRE will initiate section 7(a)(2) 

consultation with the Service when individual projects may affect listed species 

(described previously as “step-down ESA section 7(a)(2) consultations).

2) OSMRE will use its authorities to minimize impacts to listed species through oversight 

of State and Tribal programs. Oversight is the process of evaluating and assisting States 

and Tribes in the administration of the SMCRA regulations and the implementation, 

enforcement, and maintenance of approved State or Tribal regulatory programs. 

Terms and Conditions

In order to be exempt from the take prohibitions for endangered species under section 9 of the 

ESA or the take prohibitions that apply to threatened species under section 4(d) of the ESA,
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OSMRE and/or State regulatory authorities must comply with, or ensure compliance with, the 

following Terms and Conditions, which implement the Reasonable and Prudent Measures 

described above. These terms and conditions are non-discretionary.

1) State regulatory authorities must engage the Service in review and comment on proposed 

SMCRA permit actions in accordance with the SMCRA Coordination Process described in 

the addendum to OSMRE’s 2020 biological assessment and included as Appendix A to this 

Opinion.

a) Within 60 days of issuance of this Opinion, OSMRE will provide each State Regulatory 

Authority with the SMCRA Coordination Process (Appendix A), and will provide a copy 

of the transmittal to the Service.

b) In situations where an regulatory authority’s proposed permitted action is not likely to 

jeopardize listed species or destroy or adversely modify critical habitat, the Service will 

limit its request for species-specific protective measures to those that: (1) are within the 

authority of the regulatory authority and (2) involve only minor changes and do not alter 

the basic design, location, scope, duration, or timing of the action.

2) If disagreements arise between a State regulatory authority and the Service over 

recommended species-specific protective measures, and the parties are unable to resolve their 

differences, OSMRE and the State regulatory authority will engage the Service in the dispute 

resolution process described in the addendum to OSMRE’s 2020 biological assessment and 

included as Appendix B to this Opinion.

a) Within 60 days of issuance of this Opinion, OSMRE will transmit to each State 

regulatory authority a copy of the 2020 DRP (Appendix B) and will provide a copy of the 

transmittal to the Service. In situations where a regulatory authority’s proposed permitted 

action is not likely to jeopardize listed species or destroy or adversely modify critical 

habitat, the Service will engage in dispute resolution over minimization measures only 

when the take is of significant conservation consequence to the species.

b) If the dispute resolution concludes with the State regulatory authority rejecting the 

proposed resolution and issuing the permit without Service concurrence, the Service 

recognizes that the State regulatory authority may decide to issue the permit, but any 

prohibited take of listed species incidental to that permit action will not be exempted 

through this incidental take statement.

3) OSMRE will provide an annual evaluation report to the Service (or notify the Service when it 

is available and provide the report’s location, if online) that includes, at a minimum, a 

discussion of any known issues implementing the technical assistance or dispute resolution 

process. Additionally, OSMRE will meet with the Service no less than annually to discuss 

progress implementing this Opinion and any potential issues.
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11 REINITIATION NOTICE

This concludes formal consultation on the action. As described in 50 C.F.R. § 402.16(a), 

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 for this Opinion is exceeded;

2. New information reveals effects of the action that may affect listed species or critical 

habitat in a manner or to an extent not considered in this Opinion;

3. The identified action is subsequently modified in a manner that causes an effect to the 

listed species or critical habitat that was not considered in this Opinion; or

4. A new species is listed or critical habitat designated that may be affected by the action 

identified in this Opinion.

The reinitiation triggers described above apply to the action described in this Opinion. Potential 

reinitiation scenarios exist if the assumptions outlined in Section 8.2 of this Opinion are proven 

incorrect.
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amendment and supplement to the Razorback Sucker Recovery Plan. U.S. Fish and 

Wildlife Service, Mountain-Prairie Region (6), Denver, Colorado.
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U.S. Fish and Wildlife Service. 2002c. Designation of critical habitat for the northern Great 

Plains breeding population of the piping plover. Federal Register Vol. 67. No. 176, pp. 

57638–57717.

U.S. Fish and Wildlife Service. 2003a. Recovery plan for the red-cockaded woodpecker 

(Picoides borealis): second revision. U.S. Fish and Wildlife Service, Atlanta, Georgia.

U.S. Fish and Wildlife Service. 2003b. Gila Trout recovery plan (third revision). Albuquerque, 

New Mexico.

U.S. Fish and Wildlife Service. 2004a. Recovery plan for Cumberland elktoe (Alasmidonta 

atropurpurea), oyster mussel (Epioblasma capsaeformis), Cumberlandian Combshell 

(Epioblasma brevidens), purple bean (Villosa perpurpurea), and rough rabbitsfoot 

(Quadrulacylindrica strigillata). Atlanta, Georgia. 174 pp.

U.S. Fish and Wildlife Service. 2004b. Designation of critical habitat for five endangered 

mussels in the Tennessee and Cumberland River basins. Federal Register Vol. 69, No. 

168, pp. 53136–53180.

U.S. Fish and Wildlife Service. 2004c. Designation of critical habitat for three threatened 

mussels and eight endangered mussels in the Mobile River Basin. Federal Register Vol. 

69, No. 126, pp. 40084–40171.

U.S. Fish and Wildlife Service. 2004d. Final designation of critical habitat for the Mexican 

spotted owl; final rule. Federal Register Vol. 69, No. 168, pp. 53182–53230.

U.S. Fish and Wildlife Service. 2005. Recovery plan for 6 Mobile River Basin aquatic snails.

U.S. Fish and Wildlife Service. Jackson, Mississippi.

U.S. Fish and Wildlife Service. 2006a. Six Mobile River Basin aquatic snails 5-year review. U.S. 

Fish and Wildlife Service. Jackson, Mississippi.

U.S. Fish and Wildlife Service. 2006b. Red cockaded woodpecker (Picoides borealis) 5-year 

review: summary and evaluation. U.S. Fish and Wildlife Service. Clemson, South 

Carolina.

U.S. Fish and Wildlife Service. 2007a. Flat–spired three-toothed land snail (Triodopsis 

platysayoides) 5-year review: summary and evaluation. U.S. Fish and Wildlife Service, 

West Virginia Field Office, Elkins, West Virginia.

U.S. Fish and Wildlife Service. 2007b. Chiricahua leopard frog (Lithobates chiricahuensis) 

Recovery Plan. Southwest Region U.S. Fish and Wildlife Service, Albuquerque, New 

Mexico.

U.S. Fish and Wildlife Service. 2008a. Virginia big-eared bat (Corynorhynus townsendii 

virginianus) 5-year review: summary and evaluation. U.S. Fish and Wildlife Service

West Virginia Field Office, Elkins, West Virginia.

U.S. Fish and Wildlife Service. 2008b. American burying beetle (Nicrophorus americanus) 5-

Year Review: Summary and Evaluation. U.S. Fish and Wildlife Service New England 

Field Office, Concord, New Hampshire.

U.S. Fish and Wildlife Service. 2008c. 5-Year Review for the Wright Fishhook Cactus. U.S. Fish 

and Wildlife Service, Utah Field Office. 25 pp.
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U.S. Fish and Wildlife Service. 2008d. Designation of critical habitat for Helianthus Paradoxus

(Pecos Sunflower); Final Rule. Federal Register Vol. 73, No. 63, pp. 17762–17807.

U.S. Fish and Wildlife Service. 2009a. Gray bat (Myotis grisescens) 5-year review: summary and 

evaluation. U.S. Fish and Wildlife Service Midwest Region, Columbia Missouri 

Ecological Services Field Office. Columbia, Missouri.

U.S. Fish and Wildlife Service. 2009b. Cheat Mountain Salamander (Plethodon nettingi) 5-Year 

Review: Summary and Evaluation. U.S. Fish and Wildlife Service West Virginia Field 

Office, Elkins, West Virginia.

U.S. Fish and Wildlife Service. 2009c. Gulf Sturgeon (Acipenser oxyrhynchus desotoi) 5-Year 

Review: Summary and Evaluation. U.S. Fish and Wildlife Service, Southeast Region, 

Panama City Ecological Services Field Office, Panama City, Florida.

U.S. Fish and Wildlife Service. 2009d. Designation of critical habitat for Alabama Sturgeon 

(Scaphirhynchus suttkusi). Federal Register Vol. 74, No. 104. pp. 26488–26510.

U.S. Fish and Wildlife Service. 2009e. 5-year Review for the Gentian Pinkroot (Spigelia 

gentianoides). U.S. Fish and Wildlife Service, Southeast Region, Panama City, Florida. 

18 pp.

U.S. Fish and Wildlife Service. 2009f. 5-year Review for the Geocarpon minimum. U.S. Fish 

and Wildlife Service, Southeast Region, Arkansas Ecological Services Field Office, 

Conway, Arkansas. 23 pp.

U.S. Fish and Wildlife Service. 2009g. Apache Trout recovery plan, second revision. 

Albuquerque, New Mexico.

U.S. Fish and Wildlife Service. 2009h. Piping plover 5 year review: summary and evaluation.

U.S. Fish and Wildlife Service, Hadley Massachusetts and East Lansing, Michigan.

U.S. Fish and Wildlife Service. 2009i. 5-year review for the Navasota Ladies’- Tresses 

(Spiranthes parksii). U.S. Fish and Wildlife Service, Southeast Region, Austin Ecological 

Services Field Office, Austin, Texas. 65 pp.

U.S. Fish and Wildlife Service. 2010a. Revised Critical Habitat for the Preble’s meadow 

jumping mouse in Colorado. Federal Register Vol. 75, No. 240. pp. 78430–78483.

U.S. Fish and Wildlife Service. 2010b. Alabama Sturgeon (Scaphirhynchus sutkussi) 5-Year 

Review: Summary and Evaluation. U.S. Fish and Wildlife Service, Southeast Region, 

Alabama Ecological Services Field Office, Daphne, Alabama.

U.S. Fish and Wildlife Service. 2010c. Yellowfin Madtom (Noturus flavipinnis) Smoky madtom 

(Noturus baileyi) 5-Year Review: Summary and Evaluation. U.S. Fish and Wildlife 

Service, Tennessee Ecological Services Field Office, Southeast Region, Cookeville, 

Tennessee.

U.S. Fish and Wildlife Service. 2010d. Protecting and Restoring the Powell River Watershed, 

Virginia Natural Resource Damage Assessment and Restoration Program (Fact Sheet).

U.S. Fish and Wildlife Service, Virginia Field Office, Gloucester, Virginia.
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U.S. Fish and Wildlife Service. 2010e. 5-year Review for the Eastern Prairie Fringed Orchid 

(Platanthera leucophaea). U.S. Fish and Wildlife Service, Chicago Illinois Field Office, 

Barrington, Illinois. 32 pp.

U.S. Fish and Wildlife Service. 2010f. Mesa Verde cactus (Sclerocactus mesae-verdae) 5 year 

review summary and evaluation. New Mexico Ecological Services Field Office, 

Albuquerque, New Mexico.

U.S. Fish and Wildlife Service. 2011a. 90 day finding on a petition to list the eastern smallfooted bat and the northern long-eared bat as threatened or endangered. Federal Register 

Vol. 76, No. 125. pp. 38095–38106.

U.S. Fish and Wildlife Service. 2011b. Chiricahua leopard frog (Lithobates chiricahuensis) 5-

Year Review: Summary and Evaluation. U.S. Fish and Wildlife Service Arizona 

Ecological Services Office, Phoenix, Arizona.

U.S. Fish and Wildlife Service. 2011c. 5-Year Review for the Mesa Verde Cactus. U.S. Fish and 

Wildlife Service, New Mexico Ecological Services Field Office, Albuquerque, New 

Mexico. 12 pp.

U.S. Fish and Wildlife Service. 2011d. 5-Year Review for the North Park Phacelia. U.S. Fish and 

Wildlife Service, Western Colorado Field Office. 25 pp.

U.S. Fish and Wildlife Service. 2011e. Species assessment and listing priority assignment form 

for the yellow-billed cuckoo.

U.S. Fish and Wildlife Service. 2011f. Cumberland Rosemary (Conradina verticillata) 5-year 

review: summary and evaluation. U.S. Fish and Wildlife Service, Southeast Region, 

Tennessee Ecological Services Field Office, Cookeville, Tennessee. 14 pp.

U.S. Fish and Wildlife. 2011i. Houston toad (Bufo houstonensis) 5-year review: summary and 

evaluation. U.S. Fish and Wildlife Service Austin Ecological Services Field Office 

Austin, Texas

U.S. Fish and Wildlife. 2011j. Grizzly Bear (Ursus arctos horribilis) 5-Year Review: Summary 

and Evaluation. U.S. Fish and Wildlife Service, Grizzly Bear Recovery Office, Missoula, 

Montana.

U.S. Fish and Wildlife Service. 2012a. Utah prairie dog (Cynomys parvidens)revised recovery 

plan. U.S. Fish and Wildlife Service Mountain Prairie Region, Denver, Colorado. 169 pp.

U.S. Fish and Wildlife Service. 2012b. Proposed endangered status for the Neosho mucket, 

threatened status for the rabbitsfoot, and designation of critical habitat for both species; 

proposed rule. Federal Register Vol. 77, No. 200, pp. 63440–63536

U.S. Fish and Wildlife Service. 2012c. Finerayed pigtoe Fusconaia cuneolus 5-year review: 

summary and evaluation. U.S. Fish and Wildlife Service. Southeast Region Asheville 

Ecological Services Field Office Asheville, North Carolina.

U.S. Fish and Wildlife Service. 2012d. Revising the special rule for the Utah prairie dog; final 

rule Federal Register Vol. 77, No. 149, pp. 46158–46183.
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U.S. Fish and Wildlife Service. 2012e. U.S. Fish and Wildlife Service. Recovery Plan for the 

Mexican Spotted Owl (Strix occidentalis lucida), First Revision. Albuquerque, New 

Mexico. 414 pp.

U.S. Fish and Wildlife Service. 2012f. Designation of Critical Habitat for the Cumberland 

Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace. Federal 

Register Vol. 77, No. 200, pp. 63604–63668.

U.S. Fish and Wildlife Service. 2012g. Designation of critical habitat for Ipomopsis polyantha 

(Pagosa skyrocket), Penstemon debilis (Parachute beardtongue), and Phacelia submutica 

(DeBeque phacelia); Final rule. Federal Register Vol. 77, No. 156, pp. 48368–48418.

U.S. Fish and Wildlife Service. 2013a. Recovery plan for the black-footed ferret (Mustela 

nigripes) U.S. Fish and Wildlife Service, Denver, Colorado. 157 pp.

U.S. Fish and Wildlife Service. 2013b. Endangered status for the Neosho mucket and threatened 

status for the rabbitsfoot. Federal Register Vol. 78. No. 180, pp. 57076–57097

U.S. Fish and Wildlife Service. 2013c. 2013 rangewide population estimate for the Indiana bat 

(Myotis sodalis) by USFWS region. U.S. Fish and Wildlife Service Bloomington, Indiana 

Ecological Services Field Office.

U.S. Fish and Wildlife Service. 2013d. Designation of critical habitat for the southwestern 

willow flycatcher; final rule. Federal Register Vol. 78, No. 2. pp. 344–534.

U.S. Fish and Wildlife Service. 2013e. Designation of critical habitat for the fluted kidneyshell 

and slabside pearlymussel. Federal Register Vol. 78, No. 187. pp. 59556–59620

U.S. Fish and Wildlife Service. 2013f. Tan riffleshell Epioblasma florentina walkeri 5-year 

review: summary and evaluation. U.S. Fish and Wildlife Service. Southeast Region 

Asheville Ecological Services Field Office Asheville, North Carolina.

U.S. Fish and Wildlife Service. 2013g. California condor (Gymnogyps californianus) 5-year 

review: summary and evaluation. U.S. Fish and Wildlife Service, Pacific Southwest 

Region.

U.S. Fish and Wildlife Service. 2013h. Mexican spotted owl (Strix occidentalis lucida) 5-year 

review short form summary. U.S. Fish and Wildlife Service. Phoenix, Arizona.

U.S. Fish and Wildlife Service. 2013i. Determination of Endangered Species Status for Jemez 

Mountains Salamander (Plethodon neomexicanus) Throughout Its Range; Final Rule. 

Federal Register Vol. 78, No. 175, pp. 55600–55627.

U.S. Fish and Wildlife Service. 2013j. Designation of Critical Habitat for the Jemez Mountains 

Salamander. Federal Register Vol. 78, No. 244, pp. 69569–69591.

U.S. Fish and Wildlife Service. 2013k. Neosho Madtom (Noturus placidus) 5-Year Review: 

Summary and Evaluation. U.S. Fish and Wildlife Service, Kansas Ecological Services 

Field Office, Manhattan, Kansas.

U.S. Fish and Wildlife Service. 2013l. Interior least tern (Sternula antillarum) 5-year review 

summary and evaluation. U.S. Fish and Wildlife Service, Jackson, Mississippi.
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U.S. Fish and Wildlife Service. 2013m. Proposed threatened status for the western distinct 

population segment of the yellow-billed cuckoo (Coccyzus americanus); Proposed rule. 

Federal Register Vol. 78, No. 192, pp. 61622–61666.

U.S. Fish and Wildlife Service. 2013n. Endangered species status for the diamond darter. Final 

Rule. Federal Register Vol. 78, No. 144, pp. 45074–45095.

U.S. Fish and Wildlife Service. 2013o. Proposed endangered status for the Zuni Bluehead 

Sucker. Federal Register Vol. 78, No. 17, pp. 5369–5385.

U.S. Fish and Wildlife Service. 2013p. Designation of critical habitat for the diamond darter 

(Crystallaria cincotta); Final rule. Federal Register Vol. 78, No. 163. pp. 52364-52387.

U.S. Fish and Wildlife Service. 2013q. Gulf Coast jaguarundi (Puma yagouaroundi cacomitli) 

recovery plan, first revision. U.S. Fish and Wildlife Service, Southwest Region. 

Albuquerque, NM.

U.S. Fish and Wildlife Service. 2014a. White-Nose Syndrome Fact Sheet.

U.S. Fish and Wildlife Service. 2014b. Partnerships for Ohio River mussels. Accessed March 

2015. <http://www.fws.gov/midwest/endangered/clams/ohio_rvr.html>.

U.S. Fish and Wildlife Service. 2014c. Endangered species status for the Zuni Bluehead Sucker; 

Final Rule. Federal Register Vol. 79, No. 142, pp. 43132–43161.

U.S. Fish and Wildlife Service. 2014d. Utah Prairie Dog (Cynomys parvidens) Status of the 

species: May 2014. U.S. Fish and Wildlife Service, West Valley City, Utah. 14 pp.

U.S. Fish and Wildlife Service. 2014e. Species Status Assessment Report New Mexico Meadow 

Jumping Mouse (Zapas hudsonius luteus). U.S. Fish and Wildlife Service, Albuquerque, 

New Mexico.

U.S. Fish and Wildlife Service. 2014f. Five Year Review for the Preble’s meadow jumping 

mouse (Zapas hudsonius preblei). U.S. Fish and Wildlife Service, Lakewood, Colorado.

U.S. Fish and Wildlife Service. 2014g. Southwestern willow flycatcher (Empidonax trailli 

extimus) 5-year review and evaluation. U.S. Fish and Wildlife Service, Phoenix, Arizona.

U.S. Fish and Wildlife Service. 2014h. Palezone Shiner (Notropis albizonatus) 5-Year Review: 

Summary and Evaluation. U.S. Fish and Wildlife Service, Southeast Region, Kentucky 

Ecological Services Field Office, Frankfort, Kentucky.

U.S. Fish and Wildlife Service. 2014i. Designation of critical habitat for Gunnison sage grouse; 

final rule. Federal Register Vol. 79, No. 224. pp. 69312–69363.

U.S. Fish and Wildlife Service. 2014j. Slender Chub (Erimystax cahni), 5-Year Review: 

Summary and Evaluation. U.S. Fish and Wildlife Service, Southeast Region, Cookville 

Ecological Services Field Office, Cookville, Tennessee.

U.S. Fish and Wildlife Service. 2014k. 5-year Review for Navajo sedge (Carex specuicola ).

U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, Phoenix, 

Arizona. 31 pp.
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U.S. Fish and Wildlife Service. 2014l. Mitchell’s Saytr Butterfly (Neonympha mitchellii 

mitchellii) 5-Year Review: Summary and Evaluation. U.S. Fish and Wildlife Service, 

Midwest Region, East Lansing Field Office, East Lansing, Michigan.

U.S. Fish and Wildlife Service. 2014m. Revised Recovery Plan for the Pallid Sturgeon 

(Scaphirhynchus albus). U.S. Fish and Wildlife Service, Denver, Colorado.

U.S. Fish and Wildlife Service. 2014n. Threatened species status for northern Mexican 

gartersnake and narrow-headed gartersnake. Federal Register Vol. 79, No. 130, pp. 

38678–38746.

U.S. Fish and Wildlife Service. 2014o. Threatened species status for black pinesnake. Federal 

Register Vol. 79, No. 194, pp. 60406–60419.

U.S. Fish and Wildlife Service. 2014p. Determination of threatened status for the western 

Distinct Population Segment of the yellow-billed cuckoo (Coccyzus americanus). Federal 

Register Vol. 79, No. 192, pp. 59991–60038.

U.S. Fish and Wildlife Service. 2014q. Designation of critical habitat for the western distinct 

population segment of the yellow-billed cuckoo; Proposed rule. Federal Register Vol. 79, 

No. 158, pp. 48548–48652.

U.S. Fish and Wildlife Service. 2014r. Designation of critical habitat for Physaria globosa 

(Short’s bladderpod), Helianthus verticillatus (whorled sunflower), and Leavenworthia 

crassa (fleshy-fruit gladecress); Final rule. Federal Register Vol. 79, No. 165, pp. 

50990–51039.

U.S. Fish and Wildlife Service. 2014s. 5-year Review for Kral’s Water-Plantain (Sagittaria 

secundifolia). U.S. Fish and Wildlife Service, Southeast Region, Alabama Ecological 

Services Field Office Daphne, Alabama. 16 pp.

U.S. Fish and Wildlife Service. 2014t. 5-year review for Flattened Musk Turtle (Sternotherus 

depressus). U.S. Fish and Wildlife Service, Southeast Region, Mississippi Ecological 

Services Field Office, Jackson, Mississippi.

U.S. Fish and Wildlife Service. 2015a. Endangered species status for the Big Sandy crayfish and 

the Guyandotte River crayfish; Proposed rule. Federal Register Vol. 80, No. 66, pp. 

18710–18739.

U.S. Fish and Wildlife Service. 2015b. Flattened Musk Turtle Fact Sheet.

U.S. Fish and Wildlife Service. 2015c. Threatened species status for the eastern massasauga 

rattlesnake. Proposed Rule. Federal Register Vol. 80, No. 189, pp. 58688–58701.

U.S. Fish and Wildlife Service. 2015d. 2015 Indiana bat population estimate.

<http://www.fws.gov/midwest/Endangered/mammals/inba/pdf/2015IBatPopEstimate25A

ug2015v2.pdf>

U.S. Fish and Wildlife Service. 2015e. Threatened species status for Kentucky arrow darter with 

4(d) rule. Proposed Rule. Federal Register Vol. 80, No. 195, pp. 60962–60988.

U.S. Fish and Wildlife Service. 2015f. Blackside Dace Phoxinus cumberlandensis (=Blackside 

Dace Chrosomus cumberlandensis) 5-year review and evaluation. U.S. Fish and Wildlife
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Service, Southeast Region, Kentucky Ecological Services Field Office, Frankfort, 

Kentucky.

U.S. Fish and Wildlife Service. 2015g. Threatened species status for black pinesnake with 4(d) 

rule. Final Rule. Federal Register Vol. 80, No. 193. pp. 60468-60489.

U.S. Fish and Wildlife Service. 2016a. Rusty patched bumble bee (Bombus affinis) Species 

Status Assessment. Final Report, Version 1. June 2016.

U.S. Fish and Wildlife Service. 2016b. Draft recovery plan for the Northern Great Plains piping 

plover. First revision. U.S. Fish and Wildlife Service Region 6.

U.S. Fish and Wildlife Service. 2016c. Threatened species status for the eastern massasauga 

rattlesnake. Final Rule. Federal Register Vol. 81, No. 190. pp. 67193-67214.

U.S. Fish and Wildlife Service. 2016d. Designation of critical habitat for the Kentucky arrow 

darter; Final Rule. Federal Register Vol. 81, No. 193. pp. 69312-69363.

U.S. Fish and Wildlife Service. 2016e. Threatened species status for the Big Sandy crayfish and 

endangered species status for the Guyandotte River crayfish; Final Rule. Federal Register 

Vol. 81, No. 67. pp. 20450-20481.

U.S. Fish and Wildlife Service. 2016f. Threatened species status for Louisiana pinesnake. 

Proposed rule. Federal Register Vol. 81, No. 194. pp. 69454-69475.

U.S. Fish and Wildlife Service. 2016g. Threatened Status for the Distinct Population Segment of 

the North American Wolverine Occurring in the Contiguous United States; Establishment 

of a Nonessential Experimental Population of the North American Wolverine in 

Colorado, Wyoming, and New Mexico; Proposed Rules

U.S. Fish and Wildlife Service. 2016h. Recovery Plan for the Ocelot (Leopardus pardalis), First 

Revision. U.S. Fish and Wildlife Service, Southwest Region, Albuquerque, New Mexico.

U.S. Fish and Wildlife Service. 2017a. Endangered species status for rusty patched bumble bee. 

Final rule. Federal Register Vol. 82, No. 7. pp. 3186-3208.

U.S. Fish and Wildlife Service. 2017b. Rusty patched bumble bee fact sheet. 

https://www.fws.gov/midwest/endangered/insects/rpbb/factsheetrpbb.html

U.S. Fish and Wildlife Service. 2017cd. Species Status Assessment for the Canada lynx (Lynx 

canadensis) Contiguous United States Distinct Population Segment. Version 1.0, October 

2017. Lakewood, Colorado.

U.S. Fish and Wildlife Service. 2018a. Endangered Species Status for Black Warrior Waterdog 

and Designation of Critical Habitat. Final rule. Federal Register Vol. 83, No. 2. pp. 257-

284.

U.S. Fish and Wildlife Service. 2018b. Dakota Skipper (Hesperia dacotae) Fact Sheet. Available 

at: https://www.fws.gov/midwest/endangered/insects/dask/daskFactSheet.html.

U.S. Fish and Wildlife Service. 2018c. Designation of Critical Habitat for Trispot darter. 

Proposed rule. Federal Register Vol. 83, No. 248 pp. 67190-67210.

U.S. Fish and Wildlife Service. 2018d. Species Status Assessment Report for the Slenderclaw 

Crayfish (Cambarus cracens), Version 1.3. May 2018. Atlanta, GA.
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U.S. Fish and Wildlife Service. 2018e. Ocelot 5 year review.

U.S. Fish and Wildlife Service. 2019. National availability; opening of public comment period. 

Federal Register Vol. 84, No. 151 pp. 38288-38291.

U.S. Fish and Wildlife Service. 2020. Section 4(d) rule for Louisiana pinesnake. Final rule. 

Federal Register Vol. 85, No. 39. pp. 11297-11306.

U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration. 2003. 

Designation of critical habitat for the Gulf Sturgeon (Acipenser oxyrhynchus desotoi). 

Federal Register Vol. 68, No. 53, pp. 13370–13495.

U.S. Fish and Wildlife Service, Office of Surface Mining Reclamation and Enforcement, and 

Interstate Mining Compact Commission. 2009. Rangewide Indiana bat protection and 

enhancement guidelines. Unpublished document. Available at:

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