North Dakota Administrative Code › Title 69 - Public Service Commission › Article 69-05.2 - Surface Coal Mining and Reclamation Operations › Chapter 69-05.2-13 - Performance Standards - General Requirements › Section 69-05.2-13-08 - Performance standards - General requirements - Protection of fish, wildlife, and related environmental values

Current through Supplement No. 393, July, 2024
1.
				The permittee shall affirmatively demonstrate how protection and enhancement of
				fish and wildlife resources will be achieved where practicable on the basis of
				information gathered and management plans developed under sections
				69-05.2-08-15 and
				69-05.2-09-17. The permittee shall
				submit a report to the commission with management plan results and data derived
				from the monitoring plan for the two previous calendar years by March fifteenth
				in even-numbered years.
2. No
				surface mining activity may be conducted which is likely to jeopardize the
				continued existence of endangered or threatened species listed by the secretary
				of the United States department of the interior or which is likely to result in
				the destruction or adverse modification of designated critical habitats of
				those species in violation of the Endangered Species Act of 1973, as amended [
				16 U.S.C. 1531 et seq.]. The permittee shall promptly report to the commission
				the presence in the permit area of any state-listed or federally listed
				endangered or threatened species of which the permittee becomes aware. Upon
				notification, the commission will consult the United States fish and wildlife
				service, the state game and fish department, and the operator, and then decide
				whether, and under what conditions, the operator may proceed.
3. No surface mining activity may be
				conducted in a manner that would result in the unlawful taking of a bald or
				golden eagle, its nest, or any of its eggs. The permittee shall promptly report
				to the commission the presence in the permit area of any bald or golden eagle,
				or bald or golden eagle nest or eggs, of which the permittee becomes aware.
				Upon notification, the commission will perform the consultation and decision
				process specified in subsection 2.
4. Nothing in this article authorizes the
				taking of an endangered or threatened species or a bald or golden eagle, its
				nest, or any of its eggs in violation of the Endangered Species Act of 1973, as
				amended [ 16 U.S.C. 1531 et seq.] or the Bald Eagle Protection Act, as amended
				[ 16 U.S.C. 668 et seq.].
5. The
				permittee shall ensure that the design and construction of electric powerlines
				and other transmission facilities used for or incidental to activities on the
				permit area follow the guidelines in Environmental Criteria for Electric
				Transmission Systems (United States department of the interior, United States
				department of agriculture (1970)), or in alternative guidance manuals approved
				by the commission. Design and construction of distribution lines must follow
				REA bulletin 61-10, Powerline Contacts by Eagles and Other Large Birds, or in
				alternative guidance manuals approved by the commission.
6. The permittee shall, to the extent
				possible using the best technology currently available:
a. Locate and operate haul and access roads,
				sedimentation ponds, diversions, stockpiles, and other structures to avoid or
				minimize impacts to important fish and wildlife species and their habitats and
				to other species protected by state or federal law.
b. Create no new barrier in known and
				important wildlife migration routes.
c. Fence, cover, or use other appropriate
				methods to exclude wildlife from ponds containing hazardous concentrations of
				toxic-forming materials.
d.
				Reclaim, enhance where practicable, or avoid disturbance to habitats of
				unusually high value for fish and wildlife.
e. Reclaim, enhance where practicable, or
				maintain natural riparian vegetation on the banks of streams, lakes, and other
				wetland areas.
f. Afford protection
				to aquatic communities by avoiding stream channels as required in section
				69-05.2-16-20 or reclaiming stream
				channels as required in section
				69-05.2-16-07.
g. Not use pesticides in the area during
				surface mining and reclamation activities, unless specified in the operation
				and reclamation plan or approved by the commission on a case-by-case
				basis.
h. To the extent possible
				prevent, control, and suppress range, forest, and coal or commercial leonardite
				fires not approved by the commission as part of a management plan.
i. If fish and wildlife habitat is to be a
				primary or secondary postmining land use, the operator shall in addition to the
				requirements of 69-05.2-22:
(1) Select plant
				species to be used on reclaimed areas, based on the following criteria:
(a) Their proven nutritional value for fish
				and wildlife.
(b) Their uses as
				cover for fish and wildlife.
(c)
				Their ability to support and enhance fish and wildlife habitat after bond
				release.
(2) Distribute
				plant groupings to maximize benefits to fish and wildlife. Plants should be
				grouped and distributed in a manner which optimizes edge effect, cover, and
				other benefits for fish and wildlife.
j. Where cropland is to be the postmining
				land use and where appropriate for wildlife and surface owner crop management
				practices, intersperse the fields with trees, hedges, or fence rows throughout
				the harvested area to break up large blocks of monoculture and to diversify
				habitat types for birds and other animals. Wetlands must be preserved when
				feasible or recreated consistent with the reclamation plan and the postmining
				land use.
k. Where the primary land
				use is to be residential, public service, or industrial, intersperse reclaimed
				lands with greenbelts utilizing species of grass, shrubs, and trees useful as
				food and cover for birds and small animals, unless the greenbelts are
				inconsistent with the approved postmining land use.