FEDERAL REGISTER: 52 FR 47352 (December 11, 1987)

DEPARTMENT OF THE INTERIOR

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Parts 779, 780, 783, 784, 816, and 817

Surface Coal Mining and Reclamation Operations; Permanent Regulatory Program; Fish and Wildlife Resources 

Information; Fish and Wildlife Plan; and Protection of Fish, Wildlife, and Related Environmental Values

ACTION: Final rule. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSMRE) of the U.S. Department of the 

Interior (DOI) is amending its rules with respect to fish and wildlife resource information and planning requirements, and 

standards applied to the protection of fish and wildlife values. The amendments are being made to comply with recent 

court decisions and to revise and clarify the rules. The revised rules amend reinstated fish and wildlife permitting 

requirements and provide added protection to endangered or threatened species. 

EFFECTIVE DATE: January 11, 1988. 

ADDRESS: Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution 

Avenue NW., Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Charles H. Wolf, Office of Surface Mining Reclamation and 

Enforcement, U.S. Department of the Interior, Ten Parkway Center, Pittsburgh, Pennsylvania 15220; telephone: 

412-937-2897. 

TEXT: SUPPLEMENTARY INFORMATION: 

I. Background 

II. Final Rule and Response to Public Comments on Proposed Rule 

III. Procedural Matters 

 

I. BACKGROUND 

 The Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq. (the Act) sets forth general 

requirements governing surface coal mining operations and surface impacts of underground coal mining. Sections 

515(b)(24) and 516(b)(11) of the Act, 30 U.S.C. 1265(b)(24) and 1266(b)(11), require that surface coal mining and 

reclamation operations shall: 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; 

 In addition, section 515(b)(2) of the Act, 30 U.S.C. 1265(b)(2), requires that the operator, in consideration of public 

health and safety and proposed land use, restore mined land to a condition capable of supporting the uses which it was 

capable of supporting prior to any mining or higher or better uses. Section 516(b)(10) imposes that same requirement on 

underground mines with such modifications as are necessary to accommodate the distinct difference between surface and 

underground coal mining. 

 To implement the requirements of these provisions and the provisions of the Endangered Species Act of 1973 (ESA), 

as amended (16 U.S.C. 1531 et seq.), the Bald Eagle Protection Act, as amended (16 U.S.C. 668 et seq.), the Fish and 

Wildlife Coordination Act, as amended (16 U.S.C. 661 et seq.) and other statutes protecting fish and wildlife resources, 

OSMRE promulgated 30 CFR 779.20, 780.16, 783.20, 784.21, 816.97, and 817.97 on March 13, 1979, as a part of the 

permanent regulatory program (44 FR 15356, 15359, 15364, 15369, 15410, 15437). Sections 779.20, 780.16, 783.20, 

and 784.21 were remanded by court decision and suspended by OSMRE (45 FR 51547, August 4, 1980). 

 On June 30, 1983, OSMRE revised Sections 816.97 and 817.97 (48 FR 30312) to clarify the relationship of the Act 

to the ESA and the Bald Eagle Protection Act. On October 1, 1984, the District Court for the District of Columbia 

remanded portions of these rules to modify requirements pertaining to endangered or threatened species and the 
protection of wildlife from toxic ponds. In re: Permanent Surface Mining Regulation Litigation II, No. 79-1144 (D.D.C. 

1984). The court also ordered that Sections 779.20, 780.16, 783.20, and 784.21 be reinstated pending a new rulemaking. 

The sections were subsequently reinstated by OSMRE (50 FR 7274, February 21, 1985). Additional information 

regarding these actions is provided in the Federal Register as cited and in the preamble to the proposed fish and wildlife 

rules (51 FR 19498, May 29, 1986). 

 On May 29, 1986 (51 FR 19498) OSMRE proposed revisions to the fish and wildlife provisions of Sections 779.20, 

780.16, 783.20, 784.21, 816.97, and 817.97. The purpose of the proposed revisions was to comply with the court 

decision and to revise and clarify the rules. Throughout the development of the final rules, OSMRE solicited public 

comment and recommendations. A 70-day period for public comment was provided, ending August 7, 1986, and the 

public was given the opportunity to request public hearings. However, no public hearings were requested and therefore 

none were held. 

 

II. FINAL RULE AND RESPONSE TO PUBLIC COMMENTS ON PROPOSED RULE 

 OSMRE received over 200 comments from representatives of industry, environmental groups, State regulatory 

authorities, Federal and State fish and wildlife agencies and private citizens. OSMRE has reviewed each comment 

carefully and has considered the commenters' suggestions and remarks in writing these final rules. 

 The majority of the comments received on the proposed rule were specific in nature and are discussed in the 

section-by-section analysis portion of the preamble. Several comments were received in direct response to OSMRE's 

request for guidance on questions raised in the preamble to the proposed rules. These comments and general concerns 

expressed by commenters are addressed in the section that follows. 

 Hereinafter, unless otherwise noted, references to Sections 779.20, 780.16, and 816.97 (surface mining rules) also 

apply to the counterpart underground mining rules at Sections 783.20, 784.21 and 817.97. 

 

GENERAL COMMENTS 

 OSMRE suspended Sections 779.20 and 780.16 on August 4, 1980 (45 FR 51547) and reinstated these same 

regulations on February 21, 1985 (50 FR 7274). During the period when the Federal rules were suspended State 

regulatory authorities could omit or, if desired, adopt special permitting rules pertaining to fish and wildlife. In the 

preamble to the proposed rules (51 FR 19499), OSMRE specifically requested comments on whether the experiences and 

events of the four and one-half years when the Federal rules were suspended justify Federal regulation requiring either 

premining resource information or protection and enhancement plans or both. Based upon remarks from commenters and 

for the reasons discussed below, OSMRE has concluded that such regulations are necessary. 

 Most commenters indicated that Federal regulation requiring both premining resource information and protection and 

enhancement plans are necessary for the protection of fish and wildlife resources. One commenter further stated that 

because OSMRE is the regulatory authority for Indian lands and in Federal program States such as Georgia and 

Washington, without Federal regulations, the fish and wildlife resources in these States and lands would not be protected 

as section 515(b)(24) of SMCRA demands. OSMRE agrees with the commenter that Federal rules are needed in Federal 

program States and for Indian lands. 

 Three commenters felt that permitting regulations for fish and wildlife resources information are not justified or 

needed. Two of these commenters stated that fish and wildlife resources were adequately protected under their approved 

state programs during the four and one-half year period in which the Federal regulations were suspended. One of the 

commenters cited as an example a situation where a species currently proposed to be listed as threatened had been 

protected. Although certain states may be protecting fish and wildlife resources, OSMRE has concluded that these rules 

are needed to define Federal standards regarding the submission of permit information needed to assure minimum 

standards of protection. 

 Another commenter felt that the proposed regulations appeared to be a rekindling of the ongoing efforts of Federal 

and State fish and wildlife agencies to gain decision making authority in the permitting process. The commenter believed 

that such authority was not granted by Congress but would be granted by the final regulations. OSMRE considered the 

role given the Federal and State fish and wildlife agencies by SMCRA and has adopted a final rule that clarifies that the 
various Federal and State fish and wildlife agencies act in an advisory capacity to the regulatory authorities. Regulatory 

authorities retain their responsibility for making decisions on the completeness and adequacy of applications for SMCRA 

permits. 

 OSMRE also requested comments in the preamble to the proposed rules (51 FR 19499) on whether fish and wildlife 

information and planning requirements can be addressed effectively under one section as proposed or whether they 

should remain as separate and distinct sections as in the existing rules under Parts 779 and 780. OSMRE has decided that 

the fish and wildlife information and planning requirements can be addressed under one section as has been adopted in the 

final rule. 

 Several commenters agreed with the proposal that fish and wildlife information and planning requirements be 

addressed under one section. One commenter who disagreed stated that existing Part 779 requires specific resource 

information for each component of the premine environment, including wildlife (Section 779.20). Similarly, the 

commenter stated, Part 780 requires a resource protection plan for each component of the premining environment, 

including wildlife (Section 780.16). The commenter contended that if fish and wildlife baseline data collection and 

protection requirements are to be combined as one section under Part 780, then all other environmental resource 

components should be similarly treated. Otherwise, the combination of the two fish and wildlife requirements may 

de-emphasize the importance of baseline data collection, since this requirement is being shifted in the final rule to Part 

780 which deals with resource protection. The commenter suggested that OSMRE be consistent in its treatment of each 

resource component. 

 OSMRE believes that the combining of Sections 779.20 and 780.16 will not result in a loss of importance attached to 

the collection of fish and wildlife baseline data. Requirements for data collection for certain resources (such as hydrology 

and geology) are combined with the requirements for protection plans for those resources, while in other cases the 

requirements for information collection and the plans remain separate (such as soils and land use). It is OSMRE's intent 

to combine resource information collection and protection plan requirements whenever possible because of the logical 

link between baseline information pertaining to a resource and the protection and enhancement of that resource. 

 In the preamble to the proposed rules (51 FR 19499), OSMRE solicited comments on whether or not there are 

distinct differences between surface and underground mining that would justify differences in the regulations. After 

considering remarks from commenters, and for the reasons discussed below, OSMRE has determined that the same 

requirements should apply to both surface and underground mining. 

 Several commenters indicated that from a fish and wildlife protection and enhancement perspective there are no 

distinct differences between surface and underground mining that justify differences in the regulations. Three commenters 

expressed concerns over subsidence-related impacts on fish and wildlife resources. These commenters further suggested 

that subsidence impacts receive special attention during the permit review and interagency consultation process. OSMRE 

disagrees with the commenters that the impacts of subsidence on fish and wildlife need special attention because 30 CFR 

784.21(b) will cover any problem not covered under OSMRE's regulations at 30 CFR 784.20 which provide for detailed 

subsidence control plans to protect renewable resource lands. One commenter was concerned that underground mining 

could temporarily disrupt the flow of alluvial water into a surface drainage and cause adverse impacts to the downstream 

aquatic ecosystem. OSMRE believes that such concerns are adequately addressed under existing rules concerning 

hydrology. Studies of the hydrologic regime required under existing 30 CFR 784.14(e) and 784.14(f) would identify any 

potential adverse impacts to surface drainage from proposed underground mining. 30 CFR 773.15(c)(5) requires that 

before a permit application is approved, the regulatory authority must find in writing that the proposed operation has 

been designed to prevent material damage to the hydrologic balance outside the permit area. Also under 30 CFR 817.57, 

a buffer zone around streams exists within which most mining disturbances may not occur without a specific finding that 

environmental resources of such streams will not be adversely affected. 

 One commenter suggested that the last statement in the Summary of the preamble misleads the public into believing 

that the proposed rule would provide added protection to endangered or threatened species. The commenter contended 

that this is not true since the proposed rule does not provide any additional protection, for Federally-listed endangered or 

threatened species but merely reinstates the original (1979) protection for State-listed species. The commenter is correct 

in recognizing that the proposed rule would reinstate the protection previously given to State-listed endangered or 

threatened species in OSMRE's March 13, 1979 rulemaking (44 FR 15410, 15437). However, the proposed rule contains 

other important provisions that provide added protection. The final rule prohibits surface coal mining operations which 
are likely to jeopardize the continued existence of endangered or threatened species, not just those operations which are 

certain to do so, as provided in the existing rules. Also, the final rule clearly establishes the requirement for permit 

applicants to provide site-specific resource information in their applications when the permit area or adjacent area are 

likely to include endangered or threatened species. 

 Two commenters expressed support for the rules as proposed. One commenter stated that the proposed rules contain 

rather specific requirements on the type of fish, wildlife, and related resource information which must be provided in the 

permit application by the permit applicant. The commenter further stated that the regulatory authority in his particular 

state has established a permit review process whereby the State fish and wildlife agencies themselves, not the applicant, 

provide this information to the regulatory authority. The commenter sought final rules that would have sufficient 

flexibility to allow for this means of providing wildlife resource information. Although the final rule adopted today would 

not preclude such a system, the applicant retains the ultimate responsibility for assuring that all the permit application 

requirements are met. 

 One commenter questioned how the proposed rule would address the additional protection standards afforded fish, 

wildlife, and habitats listed under Tribal statutes. The commenter is reminded that OSMRE is the regulatory authority on 

Indian lands and that Parts 779, 780, 783, 784, 816, and 817 are included in the Indian lands program (30 CFR Part 750) 

through cross-referencing. When implementing the Indian lands program, OSMRE will treat species and habitats 

protected under Tribal statutes in a manner similar to those protected by State statutes. 

 One commenter stated that OSMRE's draft Environmental Assessment (EA) for this rulemaking should be revised to 

include additional decision alternatives. This suggestion was taken into consideration in the preparation of the final 

environmental assessment. 

A. FISH AND WILDLIFE PERMITTING REQUIREMENTS 

 

RESOURCE INFORMATION -- 30 CFR 780.16(a)/784.21(a). 

 As proposed, Section 780.16(a) provided that each application shall include fish and wildlife resource information for 

the permit area and adjacent area. Furthermore, it required the scope and level of detail for such information to be 

determined by the regulatory authority in accordance with any written guidance provided by State and Federal agencies 

with responsibilities for fish and wildlife. The proposed rule required that the information include, at a minimum, the 

existence of any threatened or endangered species, eagles, migratory birds or other species requiring special protection, 

and habitats of unusually high value for fish and wildlife. After considering the commenters' remarks, OSMRE has 

changed Section 780.16(a)(1) in the final rule so that the scope and level of detail for fish and wildlife information will be 

determined by the regulatory authority in consultation with State and Federal agencies with responsibilities for fish and 

wildlife. Similarly, a new provision was added to require the information to be sufficient to design the protection and 

enhancement plan required under paragraph (b). Thus, although the level of detail may vary from permit to permit, the 

fish and wildlife resource information needed for each permit application will be carefully considered by the regulatory 

authority and those agencies with expertise in the resource area. This procedure will insure that sufficient information will

be included to establish a meaningful protection plan. 

 Three commenters expressed concern that the proposed rules eliminate the requirement existing in Section 779.20(b) 

for permit applicants to contact the regulatory authority to determine what fish and wildlife information will be necessary. 

One commenter felt that such contact increased the chances of receiving a complete and accurate application which could 

be easily reviewed by the regulatory authority. Another commenter was concerned that the proposed deletion will leave

applicants with too little direction regarding site-specific data collection requirements. The third commenter believed that 

consultation early in the permitting process will give the respective agencies more time to determine whether specific 

studies should be required and will prevent unnecessary expenditures by permit applicants. OSMRE agrees that advance 

planning and consultation can help to reduce delays in processing permits and to avoid unnecessary expenses. As stated 

in the preamble to the proposed rule, however, OSMRE does not believe it is necessary to impose a Federal rule 

requiring all applicants to contact their respective regulatory authorities since some regulatory authorities may find it 

more appropriate and cost effective to set forth in either rules or guidance documents specific requirements for fish and 

wildlife information for mining in certain areas. Applicants should contact the regulatory authority early in the permitting 

process if they are unable to determine what information will be needed to meet regulatory requirements. 
 Proposed Section 780.16(a) provided that the scope and level of detail for resource information be determined by the 

regulatory authority "in accordance with any written guidance" provided by State and Federal fish and wildlife agencies. 

OSMRE has deleted this provision in the final rule and replaced it with language requiring the regulatory authority to 

determine the scope and level of detail of resource information in consultation with State and Federal fish and wildlife 

agencies. This new language was adopted because several commenters requested that the final rule provide for 

consultation between the regulatory authority and Federal and State fish and wildlife agencies on what information is 

needed to permit applications to protect fish and wildlife resources. Some of these commenters felt that early 

consultation with State and Federal fish and wildlife agencies would be an effective means of cooperatively resolving 

resource issues while others believed that through consultation available information could be shared and determinations 

could be made on whether site-specific studies would be necessary. One commenter on this topic expressed concern that 

by specifying that only written guidance be provided by State and Federal fish and wildlife agencies, there would be less 

interaction between wildlife management and coal permitting. Although OSMRE does not believe that such a result 

would necessarily occur, OSMRE has changed the rule to provide for consultation. Consultation may include both oral 

and written advice, participation by these agencies in the development of technical guidance documents, memoranda of 

understanding, and other communications necessary to protect fish and wildlife resources. 

 Many commenters suggested that OSMRE more clearly indicate when site-specific fish and wildlife resource 

information would be required. Accordingly, OSMRE has added new paragraph (a)(2) in the final rule that will require 

site-specific resource information when the permit area or adjacent area are likely to include listed or proposed 

endangered or threatened species of plants or animals or their critical habitats; habitats of unusually high value for fish 

and wildlife; or other species or habitats identified through agency consultation as requiring special protection. One 

commenter suggested that when any special resource values in proposed Section 780.16(a) (1), (2), or (3) are identified, 

the regulatory authority should require site-specific, in-depth studies of fish and wildlife and their habitats. OSMRE 

agrees that site-specific resource information is necessary for such identified species and habitats and has addressed the 

commenter's concern by the addition of paragraph (a)(2) to the final rule. 

 One commenter expressed concern over OSMRE's rationale for the substitution of the phrase "resource information" 

in Section 780.16(a) for the term "study" as required under previous Section 779.20(a). The term "resource information" 

is intended to allow for the use of existing fish and wildlife information, in addition to any site-specific studies authorized 

under Section 780.16(a)(2). 

 One commenter contended that the deletion of the requirement for site-specific data would have deleterious effects on 

fish and wildlife and that existing information is often out-of-date, incomplete, or not relevant to the site, and/or 

otherwise of limited value for determining degree of impact. OSMRE is sensitive to this concern and, as stated above, 

has added new paragraph (a)(2) to address when site-specific information is required. 

 Another commenter, who is currently developing a computer-based fish and wildlife data system, stated that its data 

system may not provide enough site-specific information on all proposed permit areas and therefore believed that the 

responsibility for providing information on fish and wildlife and their habitats should rest with the applicant. OSMRE 

agrees. As discussed in the preamble to the proposed rule, the authority to require site-specific studies has been retained 

but the restriction that a study be the only means to achieve compliance is removed. The need for site-specific studies will 

be determined by the regulatory authority through the consultation process required in the final rule. Site-specific studies 

could include aquatic sampling of streams to determine their "importance" as one commenter suggested. 

 One commenter suggested that "minimum standards" be established in the final rules for those areas that are not 

designated as critical habitat or that are otherwise sensitive, as outlined in proposed Section 780.16(a) (1)-(3). This 

commenter contended that most mining operations are likely to occur in the "non-critical" fish and wildlife habitats and 

therefore in the majority of cases, the proposed rules provide no minimum standards to the regulatory authority on what 

resource information must be part of the permit application. OSMRE has added the requirement in Section 780.16(a)(1) 

that the resource information be sufficient to design the protection and enhancement plan. Because of the diversity and 

variability of lands between and within regions, OSMRE cannot establish minimum resource information standards in the 

Federal rules for "non-critical" fish and wildlife habitat. Instead, OSMRE has determined that a more practical and as 

protective an approach will be for the regulatory authority to make these decisions within the framework of that 

information needed to assure an appropriate fish and wildlife management plan. 
 Several comments were received regarding the qualification requirements of those individuals compiling or reviewing 

fish and wildlife information. The commenters felt that the required information should be developed and/or reviewed by 

professional biologists. OSMRE disagrees that there is a need to specify qualifications for the preparers and reviewers of 

fish and wildlife information. The applicant is responsible for the accuracy and completeness of the submitted information 

and the regulatory authority is required to consult with agencies which possess the needed resources to competently 

evaluate the applicant's data. 

 Proposed rule Section 780.16(a)(1) required permit applications to contain information on listed and proposed 

endangered or threatened species of plants or animals and their critical habitats listed by the Secretary under the 

Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), and those species and habitats protected by 

similar State statutes. Commenters generally supported and endorsed this provision of the proposed rule. One commenter 

felt that listed or proposed endangered or threatened plants should be protected by separate requirements within the 

vegetation information requirements in existing Section 779.19. OSMRE believes it appropriate to address both plants 

and animals that are afforded special protection under the ESA and similar State statutes under one section for 

administrative and continuity reasons. Another commenter requested clarification with regard to the reference to "state 

statutes." This commenter asked if an operation is to be located in a particular state, whether the proposed language 

would require that the fish and wildlife information address species which are not protected under that state's statute but 

are protected under the statutes of other states? Section 780.16(a)(2)(i) of the final rule would apply to only those 

species protected under Federal law and to those species protected under the laws of the state where the particular 

mining operation is located. 

 One commenter asked OSMRE to define a "proposed" endangered or threatened species. A "proposed species" as 

defined under existing 50 CFR 402.02 means any species of fish, wildlife, or plant that is proposed in the Federal Register 

to be listed under section 4 of the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq. States with 

similar statutes may have various definitions for the term "proposed" or may use different terms for species under this 

classification. 

 Proposed Section 780.16(a)(2) required information about eagles, migratory birds, and other species identified as 

requiring special protection under State or Federal law. OSMRE has modified this provision and numbered it in the final 

rule as Section 780.16(a)(2)(iii). The final rule requires information on other species or habitats identified through agency 

consultation as requiring special protection under State or Federal law. OSMRE has deleted the specific reference to 

eagles and migratory birds. Instead, such species would be included in the general requirement to identify other species 

requiring special protection under State or Federal law. 

 Proposed Section 780.16(a)(3) required information about habitats of unusually high value for fish and wildlife such as 

important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, 

migration routes, and reproduction and wintering areas. OSMRE has adopted the proposed rule as final Section

780.16(a)(2)(ii). One commenter requested that the term "wetland" be defined using the U.S. Fish and Wildlife Service's 

(FWS) Classification of Wetlands and Deepwater Habitats of the United States, 1979 (FWS/OBS-79-31 December 

1979). Under the process outlined in the final rule, OSMRE believes it is unnecessary to define the term "wetland" 

because definitions in common usage by the appropriate State and Federal agencies are applied. 

 Three commenters suggested that the list of examples of habitat in proposed Section 780.16(a)(3) be expanded to 

include additional habitat types and areas that they viewed as being of "unusually high value." OSMRE believes that the 

habitats provided as examples in the final rule are representative and not exclusive of the types that the regulatory 

authority should consider under this section. One commenter associated the term "migration routes" only with migratory 

birds and did not consider the term to be a type of habitat. OSMRE included the term "migration routes" under this 

section because of the different habitat types within migration routes utilized by such species as mule deer and elk in the 

western states. 

 

PROTECTION AND ENHANCEMENT PLAN -- 30 CFR 780.16(b)/784.21(b) 

 As proposed, Section 780.16(b) required that each application shall include a description of 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, during surface 

coal mining and reclamation operations and how enhancement of these resources will be achieved where practicable. 
After considering remarks from commenters and for the reasons discussed below, OSMRE has adopted Section

780.16(b) as proposed. 

 One commenter suggested that the terminology "protection and enhancement plan" be changed to "mitigation and 

enhancement plan" and that acceptable definitions of "mitigation" and "enhancement" be provided. OSMRE has retained 

the terminology "protection and enhancement plan" as proposed. The terms "protection" and "enhancement" are 

consistent with terminology used in sections 515 and 516 of the Act. OSMRE does not believe that the term 

"enhancement" requires further definition when it is used in context in Section 780.16(b). 

 Four commenters shared OSMRE's view of that enhancement of fish and wildlife values is practicable for almost all 

postmining land uses. Other commenters indicated that if a situation arises where fish and wildlife habitat enhancement 

measures are not practicable, the burden should fall to the applicant to indicate why enhancement is not practicable. 

OSMRE has reconsidered this provision and agrees that enhancement may not be practicable in all situations. 

Furthermore, the applicant should be afforded the opportunity to state why enhancement is not practicable. OSMRE has 

therefore modified Section 780.16(b)(3)(ii) in the final rule to require that, where enhancement measures are not included 

in the permit application, the applicant shall provide a statement explaining why such measures are not practicable. 

 One commenter expressed concern that the proposed regulations requiring a protection and enhancement plan are 

silent on the enforceability of the plan by the regulatory authority. OSMRE reminds the commenter that the plan is a part 

of the permit application and thus is enforceable by the regulatory authority when the permit is issued. 

 Proposed Section 780.16(b)(1) required that the description of how the operator will protect and enhance fish and 

wildlife values be consistent with the requirements of Section 816.97. No comments were received regarding this 

subsection. OSMRE has therefore adopted the proposed rule as final Section 780.16(b)(1). 

 Several commenters expressed concern that the proposed rule did not contain language which explicitly requires the 

protection and enhancement plan to cover the permit area and adjacent area. Two commenters requested that "adjacent 

area" be changed to "portions of the adjacent area where effects may reasonably be expected to occur." OSMRE does 

not agree that any change is necessary since "adjacent area" is already defined in Section 701.5 to mean that area outside 

the permit area where a resource is, or reasonably would be expected to be, adversely impacted by proposed mining 

operations. Furthermore, Section 780.16(b)(2) requires that the protection and enhancement plan apply at a minimum to 

resource information that is required for both the permit area and adjacent area in Section 780.16(a). One commenter 

was concerned about substituting the terms permit area and adjacent area for mine plan area. OSMRE no longer uses the 

term mine plan area in the Federal rules. The revision of areal descriptors is discussed in 48 FR 14814. This substitution 

of terms will provide consistency in the terminology used in the Federal rules without affecting the substantive 

requirements for fish and wildlife plans required by Section 780.16. 

 Three commenters expressed concern that the language of the proposed rule may leave some ambiguity by the generic 

reference to paragraph (a) and suggested that the language of Section 780.16(b)(2) should read: "Apply, at a minimum, 

to species and habitats identified under paragraphs (a)(1), (a)(2), and (a)(3) of this section." OSMRE has rejected the 

commenters suggested language because, to be consistent with sections 515(b)(24) and 516(b)(11) of SMCRA, the 

protection and enhancement must not be limited to critical species and habitats. 

 Proposed Section 780.16(b)(3)(i) required the protection and enhancement plan to describe the protective measures 

that will be used during the active mining phase of operation. The proposed rule specified that such measures may include 

the establishment of buffer zones, the selective location and special design of haul roads and powerlines, and the 

monitoring of surface water quality and quantity. OSMRE has adopted the proposed rule as final Section 780.16(b)(3)(i). 

One commenter recommended that biological monitoring be added as an example of a protective measure under this 

section. OSMRE emphasizes that the protective measures provided as examples under this section are not an exclusive 

list to be considered by the applicant. Other protective measures such as biological monitoring may also be considered. 

 One commenter argued that the proposed regulations do not establish any minimum protection and enhancement 

measures. This commenter suggested the proposed rule require that protection and enhancement measures listed as 

discretionary in proposed Section 780.16(b)(3)(i) and Section 780.16(b)(3)(ii) be required in the plan when a 

determination is made by either the regulatory authority or the State or Federal fish and wildlife agency that these 

measures would improve the overall reclamation of the site for fish and wildlife resources. OSMRE believes the final rule 
provides the regulatory authority with sufficient guidance in Section 780.16 (a) and (b) to determine what measures are 

necessary for the protection and enhancement of fish and wildlife. Section 515(b)(24) of SMCRA does not require 

specific protection and enhancement measures but rather requires each operation, to the extent possible using the best 

technology currently available, to minimize disturbances and achieve enhancement where practicable. 

 Proposed Section 780.16(b)(3)(ii) required the protection and enhancement plan to describe the enhancement 

measures that will be used during the reclamation and postmining phase of operation to develop aquatic and terrestrial 

habitat. The proposed rule provided that such measures may include restoration of streams and other wetlands, retention 

of ponds and impoundments, establishment of vegetation for wildlife food and cover, and the placement of perches and 

nest boxes. One commenter believed that this section was inaccurate because the commenter did not view the restoration 

of streams and wetlands as a method of fish and wildlife enhancement. In his opinion, the term "restoration" indicated the 

return to a previous condition. OSMRE disagrees with the commenter since restored streams and wetlands may contain 

features that were not present during premining conditions. The addition of pools and riffles to a premine channelized 

stream is one example. Part of the commenter's concern is semantic. For example, one performance standard which the 

protection and enhancement plan implements, 30 CFR 816.43(a)(3), illustrates how closely the two concepts are and 

requires restoration or approximation of premining characteristics to promote the recovery and enhancement of the 

aquatic habitat. 

 A commenter stated that the establishment of vegetation for wildlife food and cover may not constitute wildlife 

enhancement. The commenter believed that a comparison of the premining vegetation and habitats and the proposed 

postmining revegetation plan must be made before one can determine if the revegetation plan would enhance wildlife. 

OSMRE does not agree that such a comparison must be made; however, a comparison of pre- and postmining vegetative 

conditions may be one approach to reflect that wildlife enhancement has been realized. Enhancement can also be achieved 

by developing a postmining land use plan that benefits or promotes a selected or featured fish and wildlife species or a 

diversity of species. 

 The same commenter agreed that some enhancement measures -- such as the creation of impoundments -- can be 

implemented during mining and that proposed Section 780.16(b)(3)(ii) stipulates the enhancement measures to be 

implemented after mining. OSMRE agrees that impoundments are normally created during the active phase of mining and 

has used the word "retention" in reference to ponds and impoundments in the final rule. 

 One commenter suggested that this section of the proposed rules be amended to include consultation with the 

appropriate fish and wildlife agency to ensure that the premining habitat diversity found in the permit area and adjacent 

areas is protected as much as possible when reclaiming the site to a postmining land use. OSMRE believes that through 

the consultation process in Section 780.16(a)(1) the permit review process required by Sections 773.13 and 773.15, 

habitat diversity will receive adequate consideration. 

 

FISH AND WILDLIFE SERVICE REVIEW -- 30 CFR 780.16(c)/784.21(c). 

 Proposed Section 780.16(c) required that upon request, the regulatory authority provide the resource information 

submitted by permit applicants under paragraph (a) and the protection and enhancement plan submitted under paragraph 

(b) to the U.S. Department of the Interior, Fish and Wildlife Service (USFWS) Regional or Field Office for their review. 

The proposed rule required that the information be provided within 10 days of receipt of the request from the Service. 

After considering remarks from commenters and for the reasons discussed below, OSMRE has adopted paragraph (c) as 

proposed. Several commenters supported the proposal while others offered suggestions for modifications. One 

commenter suggested that the final rule be expanded to require other information such as is found in the reclamation, 

revegetation and hydrologic balance restoration plans be provided to the USFWS if requested. OSMRE and the USFWS 

have discussed this provision and are in agreement that the resource information required under paragraph (a) and the 

protection and enhancement plan required under paragraph (b) will in most situations be sufficient for USFWS reviews. 

In those cases where an inspection of other parts of the permit application is desired, the USFWS can visit the location 

where the public file copy of the application is kept or make other arrangements with the regulatory authority to obtain 

the additional information. 

 Another commenter who acts as a liaison between the USFWS and a regulatory authority requested that the 

regulatory authority or the State agency charged with the protection of the plant and wildlife resources provide the 

resource information and the protection and enhancement plan to the USFWS. 
 OSMRE believes there is sufficient flexibility in the final rule to provide for this transfer as suggested by the 

commenter. One commenter expressed concern that the implementation of this provision could relegate State fish and 

wildlife agencies to a role where their comments are solicited but are never implemented. OSMRE does not believe that 

this will happen. Under Section 780.16(a)(1), the regulatory authority is required to consult with both State and Federal 

agencies in setting information requirements. Regulatory authorities that are provided comments by fish and wildlife 

agencies must consider all comments in their decisions to issue permits. To be defensible, these decisions must be 

well-reasoned and consistent with the State regulatory program. 

 One commenter questioned how many days the Service would have to review and comment on the permit application. 

Section 773.13(b)(1) requires each regulatory authority to establish a reasonable time for the submittal of written 

comments or objections on permit applications by State and Federal fish and wildlife agencies and other public entities. 

 Two commenters opposed Section 780.16(c) as proposed and urged deletion of the proposal from the final rule. The 

commenters contended that there was no basis in the statute for this provision. OSMRE does not agree. Sections 201(c) 

(2), (6), (12), and (13), 501(b), and 510(b) of the Act provide authority. Moreover, in order for the USFWS to discharge 

its responsibilities under the Endangered Species Act, Bald Eagle Protection Act and the Fish and Wildlife Coordination 

Act, and to assure that sections 515(b)(24) and 516(b)(10) of SMCRA are implemented, the USFWS must have access 

to information supplied under Section 780.16. 

B. PERFORMANCE STANDARDS 

 

SECTIONS 816.97(b)/817.97(b) 

 OSMRE proposed to amend Section 816.97(b) to provide for the protection of endangered and threatened species by 

requiring that no mining activity shall be conducted which is likely to jeopardize the continued existence of endangered or 

threatened species listed by the Secretary or which is likely to result in the destruction or adverse modification of 

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

1531 et seq.). The previous rule was more limited in that it prohibited only mining activity which will jeopardize the 

existence of endangered or threatened species or which will result in the destruction or adverse modification of 

designated critical habitats. OSMRE also proposed to require the operator to 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. The proposed rule added the requirement to report State-listed species to the existing requirement that the 

operator report Federally-listed species. OSMRE has adopted Section 816.97(b) as proposed. 

 Several commenters expressed support for this proposal. One commenter, however, noted that a number of states do 

not maintain state endangered species lists and instead classify certain species as "rare." OSMRE is aware that 

classification or terminology may differ in the various States; however, it is the protection afforded these special species 

under similar State statutes that is intended. This commenter further stated that it is not necessary or desirable to report 

immediately every threatened or endangered species observed within the permit area and cited an example of wintering 

bald eagles foraging over coal permit areas on a daily basis. Sections 515(b)(24) and 516(b)(10) require that disturbances 

to fish and wildlife and related environmental values be minimized. Accordingly, OSMRE has required, since 1979, that 

the operator promptly report the presence of certain species in the permit area. In the example provided, the eagles may 

be nesting or resting off the mine site but could be dependent upon a food source on the mine site and, thus, be adversely 

impacted by the mining operations. The reporting provision enables the regulatory authority to ensure compliance with 

the Endangered Species Act and with the Bald Eagle Protection Act. 

 One commenter suggested that the reporting requirement be expanded to include not only the permit area but also the 

adjacent area. The rule is sufficiently flexible to allow the regulatory authority to require reports of sightings on adjacent 

areas if it wishes to do so. This commenter further suggested that the rule be expanded to mandate consultation when the 

regulatory authority receives sighting reports from any person, unless the sightings are deemed to be frivolous. While the 

rule requires the operator to notify the regulatory authority whenever the operator becomes aware of an endangered or 

threatened species in the permit area, it does not preclude other persons from so notifying the regulatory authority. The 

regulatory authority would have discretion on whether to initiate the consultation process. 
 Two commenters objected to the inclusion of the term "any State" in the proposed rule. The commenters further 

stated that SMCRA does not extend protection to State-listed species. As discussed in the preamble to the proposed rule, 

OSMRE proposed to amend the existing rule to include "State-listed" species in response to the District Court's decision 

of October 1, 1984. In re: Permanent Surface Mining Regulation Litigation II, No. 79-1144, slip op. at pp. 58-63 

(D.D.C. 1984). The deletion of a reference to State-listed species from the previous rule was found by the court to be 

contrary to section 515(b)(24) of the Act. The commenters objected to the requirement to report the presence of 

endangered or threatened species within the permit area because they believed it would require duplicative reporting 

inasmuch as an operator will have already reported in the permit application the existence of any endangered or 

threatened species. The commenters cited for support the District Court's decision upholding the Secretary's regulation 

which requires identification of critical habitats in the permit application but not during the mining operation. In Re: 

Permanent Surface Mining Regulation Litigation II, No. 79-1144 (D.D.C. October 1, 1984) Slip op. at 60-1. OSMRE 

does not agree with the commenter's reasoning that the court's decision regarding critical habitats also applies to the 

reporting of threatened or endangered species. Unlike critical habitats which are designated by the Secretary after an 

administrative proceeding, threatened and endangered species are mobile rather than stationary and may enter the 

permitted area after a permit is approved. 

 

SECTIONS 816.97(e)/817.97(e) 

 Sections 816.97 (e)(2) and (e)(3) of the existing regulations were republished in the proposed rule solely for editorial 

reasons to reflect the addition of Section 816.97(e)(4) and not to make substantive changes. OSMRE has therefore 

adopted these proposed rules as final Sections 816.97(e)(2) and 816.97(e)(3). 

 As proposed, Section 816.97(e)(4) required each operator to fence, cover, or use other appropriate methods to 

exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials. After considering 

remarks from commenters and for the reasons discussed below, OSMRE has adopted the proposed rule as final Section

816.97(e)(4). One commenter expressed support for the rule as proposed. Five commenters asked for clarification as to 

what constitutes "hazardous concentrations of toxic-forming materials" and one suggested that OSMRE work with the 

U.S. Environmental Protection Agency (EPA) to develop a standard definition for this term, consistent with the existing 

regulations for toxic-forming materials found in EPA's regulations at 40 CFR 261.2 and 40 CFR 261.3. OSMRE does 

not believe that further regulatory changes are necessary since OSMRE already defines "toxic-forming materials" in 30 

CFR 701.5. 

 The final rules also amend Sections 779.10 and 783.10 which pertain to Federal information collection by deleting 

references to Sections 779.20 and 783.20 respectively. This amendment was necessary because Sections 779.20 and 

783.20 have been deleted in the final rules. 

 

EFFECT IN FEDERAL PROGRAM STATES AND ON INDIAN LANDS 

 The final rules apply through cross-referencing in those States with Federal programs. This includes Georgia, Idaho, 

Massachusetts, Michigan, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, and Washington. The 

Federal programs for these States appear at 30 CFR Parts 910, 912, 921, 922, 933, 937, 939, 941, 942, and 947, 

respectively. The final rules also apply through cross-referencing to Indian lands under the Federal program for Indian 

Lands as provided in 30 CFR Part 750. 

 

III. PROCEDURAL MATTERS 

 

Federal Paperwork Reduction Act 

 The information collection requirements of Parts 780 and 784 have been submitted to the Office of Management and 

Budget under 44 U.S.C. 3507. The following clearance numbers were assigned: 30 CFR Part 780 (OMB Control No. 

1029-0036) and 30 CFR Part 784 (OMB Control No. 1029-0039). The information is needed to meet the requirements 

of sections 515(b)(24) and 516(b)(11) of Pub. L. 95-87, and will be used by the regulatory authority to assess the impact 

of proposed mining operations on fish and wildlife resources and the adequacy of proposed protection and enhancement 

plans. The obligation to respond is mandatory. 

 

Executive Order 12291 and the Regulatory Flexibility Act 

 The Department of the Interior has determined that this document is not a major rule under E.O. 12291 and certifies 
that it will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). The rule does not distinguish between small and large entities, and will make no change in the 

threshold for determining whether to approve permits for surface coal mining operations because of fish and wildlife 

considerations. No incremental economic effects are anticipated as a result of the rule. 

 

National Environmental Policy Act 

 OSMRE has prepared an environmental assessment (EA) on the impacts on the human environment of this final 

rulemaking and has made a finding that the rules would not have a significant impact under section 102(2)(C) of the 

National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C). The EA and finding of no significant impact are on 

file in the OSMRE Administrative Record Room 5131, 1100 L Street NW., Washington, DC. 

 

Author 

 The author of this rule is Bruce Klein, Office of Surface Mining Reclamation and Enforcement, Knoxville Field Office, 

Knoxville, Tennessee 37902; telephone 615-673-4330. 

 

LIST OF SUBJECTS 

 

30 CFR Part 779 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Surface mining. 

 

30 CFR Part 780 

 Coal mining, Reporting and recordkeeping requirements, Surface mining. 

 

30 CFR Part 783 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Underground mining. 

 

30 CFR Part 784 

 Coal mining, Reporting and recordkeeping requirements, Underground mining. 

 

30 CFR Part 816 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Surface mining. 

 30 CFR Part 817 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Underground mining. 

 For the reasons set out in this preamble, 30 CFR Parts 779, 780, 783, 784, 816, and 817 are amended as set forth 

below. 

Dated: April 9, 1987. 

J. Steven Griles, Assistant Secretary for Land and Minerals Management. 

 Editorial Note: This document was received at the office of the Federal Register December 10, 1987. 

PART 779 -- SURFACE MINING PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR 

INFORMATION ON ENVIRONMENTAL RESOURCES 

 1. The authority citation for Part 779 continues to read as follows: 

 Authority: 30 U.S.C. 1201 et seq., Section 115 of Pub. L. 98-146, (30 U.S.C. 1257), and 16 U.S.C. 470 et seq. 

SECTION 779.10 [Amended] 

 2. Section 779.10 is amended by removing the term "779.20,". 
SECTION 779.19 [Amended] 

 3. Section 779.19, paragraph (b) is amended by removing the words "30 CFR 779.20" and adding in their place the 

words "30 CFR 780.16." 

SECTION 779.20 [Removed] 

 4. Section 779.20 is removed. 

PART 780 -- SURFACE MINING PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR 

RECLAMATION AND OPERATION PLAN 

 5. The authority citation for Part 780 continues to read as follows: 

 

 Authority: 30 U.S.C. 1201 et seq., Section 115 of Pub. L. 98-146, (30 U.S.C. 1257), and 16 U.S.C. 470 et seq. 

 6. Section 780.16 is revised to read as follows: 

SECTION 780.16 - FISH AND WILDLIFE INFORMATION. 

(a) Resource information. Each application shall include fish and wildlife resource information for the permit area and 

adjacent area. 

(1) The scope and level of detail for such information 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 required under paragraph (b) of this section. 

(2) Site-specific resource information necessary to address the respective species or habitats shall be required 

when the permit area or adjacent area is likely to include: 

(i) Listed or proposed endangered or threatened species of plants or animals or their critical habitats 

listed by the Secretary under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), or those species 

or habitats protected by similar State statutes; 

(ii) Habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian 

areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, or reproduction and 

wintering areas; or 

(iii) Other species or habitats identified through agency consultation as requiring special protection 

under State or Federal law. 

(b) Protection and enhancement plan. Each application shall include a description of 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, during the surface coal mining and 

reclamation operations and how enhancement of these resources will be achieved where practicable. This description 

shall -- 

(1) Be consistent with the requirements of Section 816.97 of this chapter; 

(2) Apply, at a minimum, to species and habitats identified under paragraph (a) of this section; and 

(3) Include -- 

(i) Protective measures that will be used during the active mining phase of operation. Such measures 

may include the establishment of buffer zones, the selective location and special design of haul roads and powerlines, and 

the monitoring of surface water quality and quantity; and 

(ii) Enhancement measures that will be used during the reclamation and postmining phase of operation 

to develop aquatic and terrestrial habitat. Such measures may include restoration of streams and other wetlands, retention 

of ponds and impoundments, establishment of vegetation for wildlife food and cover, and the replacement of perches and 
nest boxes. Where the plan does not include enhancement measures, a statement shall be given explaining why 

enhancement is not practicable. 

(c) Fish and Wildlife Service review. Upon request, the regulatory authority shall provide the resource information 

required under paragraph (a) of this section and the protection and enhancement plan required under paragraph (b) of this 

section to the U.S. Department of the Interior, Fish and Wildlife Service Regional or Field Office for their review. This 

information shall be provided within 10 days of receipt of the request from the Service. 

PART 783 -- UNDERGROUND MINING PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR 

INFORMATION ON ENVIRONMENTAL RESOURCES 

 7. The authority citation for Part 783 continues to read as follows: 

 Authority: 30 U.S.C. 1201 et seq., Section 115 of Pub. L. 98-146 (30 U.S.C. 1257), and 16 U.S.C. 470 et seq. 

SECTION 783.10 [Amended] 

 8. Section 783.10 is amended by removing the term "783.20,". 

SECTION 783.19 [Amended] 

 9. Section 783.19, paragraph (b) is amended by removing the words "30 CFR 779.20" and adding in their place the 

words "30 CFR 784.21." 

SECTION 783.20 [Removed] 

 10. Section 783.20 is removed. 

PART 784 -- UNDERGROUND MINING PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR 

RECLAMATION AND OPERATION PLAN 

 11. The authority citation for Part 784 continues to read as follows: 

 Authority: 30 U.S.C. 1201 et seq., Section 115 of Pub. L. 98-146 (30 U.S.C. 1257), and 16 U.S.C. 470 et seq. 

 12. Section 784.21 is revised to read as follows: 

SECTION 784.21 - FISH AND WILDLIFE INFORMATION. 

(a) Resource information. Each application shall include fish and wildlife resource information for the permit area and 

adjacent area. 

(1) The scope and level of detail for such information 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 required under paragraph (b) of this section. 

(2) Site-specific resource information necessary to address the respective species or habitats shall be required 

when the permit area or adjacent area is likely to include: 

(i) Listed or proposed endangered or threatened species of plants or animals or their critical habitats 

listed by the Secretary under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), or those species 

or habitats protected by similar State statutes; 
(ii) Habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian 

areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, or reproduction and 

wintering areas; or 

(iii) Other species or habitats identified through agency consultation as requiring special protection 

under State or Federal law. 

(b) Protection and enhancement plan. Each application shall include a description of 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, during the surface coal mining and 

reclamation operations and how enhancement of these resources will be achieved where practicable. This description 

shall -- 

(1) Be consistent with the requirements of Section 817.97 of this chapter; 

(2) Apply, at a minimum, to species and habitats identified under paragraph (a) of this section; and 

(3) Include -- 

(i) Protective measures that will be used during the active mining phase of operation. Such measures 

may include the establishment of buffer zones, the selective location and special design of haul roads and powerlines, and 

the monitoring of surface water quality and quantity; and 

(ii) Enhancement measures that will be used during the reclamation and postmining phase of operation 

to develop aquatic and terrestrial habitat. Such measures may include restoration of streams and other wetlands, retention 

of ponds and impoundments, establishment of vegetation for wildlife food and cover, and the placement of perches and 

nest boxes. Where the plan does not include enhancement measures, a statement shall be given explaining why 

enhancement is not practicable. 

(c) Fish and Wildlife Service Review. Upon request, the regulatory authority shall provide the resource information 

required under paragraph (a) of this section and the protection and enhancement plan required under paragraph (b) of this 

section to the U.S. Department of the Interior, Fish and Wildlife Service Regional or Field Office for their review. This 

information shall be provided within 10 days of receipt of the request from the Service. 

PART 816 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- SURFACE MINING 

ACTIVITIES 

 13. The authority citation for Part 816 is revised to read as follows: 

 Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.), unless otherwise noted. 

 14. In Section 816.97, paragraphs (b), (e)(2), and (e)(3) are revised and paragraph (e)(4) is added to read as follows: 

SECTION 816.97 - PROTECTION OF FISH, WILDLIFE, AND RELATED ENVIRONMENTAL VALUES. 

 

* * * * * 

(b) Endangered and threatened species. No surface mining activity shall be conducted which is likely to jeopardize the 

continued existence of endangered or threatened species listed by the Secretary or which is likely to result in the 

destruction or adverse modification of designated critical habitats of such species in violation of the Endangered Species 

Act of 1973, as amended (16 U.S.C. 1531 et seq.). The 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 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. 

 

* * * * * 

(e) * * * 

(2) Locate and operate haul and access roads so as to avoid or minimize impacts on important fish and wildlife 

species or other species protected by State or Federal law; 
(3) Design fences, overland conveyors, and other potential barriers to permit passage for large mammals, except 

where the regulatory authority determines that such requirements are unnecessary; and 

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

concentrations of toxic-forming materials. 

 

* * * * * 

PART 817 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- UNDERGROUND MINING 

ACTIVITIES 

 15. The authority citation for Part 817 is revised to read as follows: 

 Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.), unless otherwise noted. 

 16. In Section 817.97 paragraphs (b), (e)(2), and (e)(3) are revised and paragraph (e)(4) is added to read as follows: 

SECTION 817.97 - PROTECTION OF FISH, WILDLIFE, AND RELATED ENVIRONMENTAL VALUES. 

 

* * * * * 

(b) Endangered and threatened species. No underground mining activity shall be conducted which is likely to jeopardize 

the continued existence of endangered or threatened species listed by the Secretary or which is likely to result in the 

destruction or adverse modification of designated critical habitats of such species in violation of the Endangered Species 

Act of 1973, as amended (16 U.S.C. 1531 et seq.). The 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 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. 

 

* * * * * 

(e) * * * 

(2) Locate and operate haul and access roads so as to avoid or minimize impacts on important fish and wildlife 

species or other species protected by State or Federal law; 

(3) Design fences, overland conveyors, and other potential barriers to permit passage for large mammals except 

where the regulatory authority determines that such requirements are unnecessary; and 

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

concentrations of toxic-forming materials. 

 

* * * * * 

[FR Doc. 87-28528 Filed 12-10-87; 8:45 am] 

BILLING CODE 4310-05-M