RELATES TO:
KRS
350.020,
350.028,
350.405,
350.435,
350.465,
30 C.F.R. Parts 730-733, 735,
816.57,
816.97,
917,
16 U.S.C.
668 et seq., 1531 et seq.,
30 U.S.C. 1253,
1255,
1265,
33 U.S.C.
1344
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in
pertinent part requires the cabinet to promulgate rules and administrative
regulations establishing performance standards for protection of people and
property, land, water and other natural resources, and aesthetic values, during
surface mining activities, and for restoration and reclamation of surface areas
affected by mining activities. This administrative regulation sets forth
specific requirements and measures for the protection of fish, wildlife, and
related environmental values, and for the enhancement of those resources where
practicable.
Section 1. General.
(1) The permittee shall, to the extent
possible using the best technology currently available, minimize disturbances
and adverse impacts on fish, wildlife, and related environmental values, and
shall achieve enhancement of those resources where practicable.
(2) Each permittee shall:
(a) To the extent possible using the best
technology currently available:
1. Ensure that
electric powerlines and other transmission facilities used for, or incidental
to, surface mining activities on the permit area are designed and constructed
to minimize electrocution hazards to raptors, except where the cabinet
determines that these requirements are unnecessary;
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 of large mammals, except where the
cabinet determines that the designs are unnecessary; and
4. Fence, cover, or use other appropriate
methods to exclude wildlife from ponds which contain hazardous concentrations
of toxic-forming materials.
(b) Avoid disturbances to, enhance where
practicable, restore, or replace, wetlands, and riparian vegetation along
rivers and streams and bordering ponds and lakes; and
(c) Avoid disturbances to, enhance where
practicable, or restore, habitats of unusually high value for fish and
wildlife.
Section
2. Protection of Endangered and Threatened Species.
(1)
(a) No
surface mining activity shall be conducted which is likely to jeopardize the
continued existence of an endangered or threatened species listed by the
Secretary of the Interior or which is likely to result in the destruction or
adverse modification of a designated critical habitat of those species in
violation of the Endangered Species Act of 1973 as amended (16
USC Sec.
1531 et seq.). The operator shall
promptly report to the cabinet any state- or federally-listed endangered or
threatened species within the permit area of which the operator becomes aware.
Upon notification, the cabinet 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.
(b) No surface mining activity shall be
conducted in a manner which would result in the unlawful taking of a bald or
golden eagle, its nest, or any of its eggs. The operator shall promptly report
to the cabinet any golden or bald eagle nest within the permit area of which
the operator becomes aware. Upon notification, the cabinet shall consult with
the U.S. Fish and Wildlife Service and also, where appropriate, the Kentucky
Department of Fish and Wildlife Resources and, after consultation, shall
identify whether, and under what conditions, the operator may
proceed.
(2) Nothing in
this title shall authorize 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
USC
1531 et seq.) or the Bald Eagle
Protection Act as amended (16 USC
668
et seq.).
Section 3.
Reclamation Strategies and Wildlife Enhancement Techniques.
(1) Where fish and wildlife is to be a
postmining land use, the permittee shall:
(a)
Select plant species to be used on reclaimed areas on the basis of the
following criteria: their proven nutritional value for fish or wildlife; their
use as cover for fish or wildlife; and their ability to support and enhance
fish or wildlife habitat after release of performance bonds; and
(b) Group and distribute plants in a manner
which optimizes edge effect, cover, and other benefits to fish and
wildlife.
(2) Where
cropland is to be the postmining land use, and where appropriate for wildlife-
and crop-management practices, the permittee shall 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.
(3) Where residential,
public service, or industrial uses are to be the postmining land use, and where
consistent with the approved postmining land use, the permittee shall
intersperse reclaimed lands with greenbelts utilizing species of grass, shrubs,
and trees useful as food and cover for wildlife.