In 1996, the U.S. Fish & Wildlife Service issued a “Biological Opinion and Conference Report” to the Office of Surface Mining which concluded that so long as the provisions of the state and federal surface mining programs, which included information gathering and reporting obligations concerning endangered species, were followed then surface mining was not likely to jeopardize the existence of threatened or endangered species or result in adverse modification of critical habitats otherwise protected by the Endangered Species Act. The “BiOp” also contained an “incidental take statement,” which provided that so long as the provisions of the document were followed, a “take” of a threatened or endangered species incidental to lawful mining activities was not prohibited.
Among the requirements of that 1996 BiOp were that the USFWS’s field offices would maintain and update a list of protected species and habitats and “the specific measures needed to ensure the protection of these species and habitats.” Further, the document requires mine operators to adhere to these species’ specific measures. BiOP, pp. 6 & 13. Effective May 4, 2015, the USFWS declared that the Northern Long Eared Bat was a threatened species and issued an interim rule under Section 4(d) of the Endangered Species Act prohibiting purposeful takes and identifying the scope of allowable activities it determined would result only in permissible “incidental” takes. A copy of the USFWS’ Q&A on the rule may be found here.
The 4(d) rule provided that in the areas of the country where the bats were impacted by white nose syndrome (approximately the eastern half of the country), the rule exempted “takes” caused by forest management practices; maintenance and limited expansion of transportation and utility rights of way; prairie habitat management and limited tree removal projects—with certain limitations on cutting roost trees or near roost trees in pup season and cutting within .25 miles of known hibernacula. Although “forest management practices” were among those activities allowed without further review or restriction (based on a finding that normal silvicultural activities enhance the long-term chances that appropriate habitat is maintained), timber removal for mining was NOT included in those exempted activities. Without specific measures in the 4(d) rule for mining, the 1996 BiOp imposed a duty on the USFWS field offices to maintain a list of specific measures to protect the NLEB and its habitat, but the responsiveness of the various USFWS offices in mining country has varied significantly, causing many mining operations to question when and whether they could cut timber to keep pace with mining plans.
Recently, the West Virginia Department of Environmental Protection revealed its plan to provide guidance so that mine operators could safely proceed. WVDEP released draft guidance in November 2015 which provides as follows:
- For already permitted operations which had started operations at the time of the NLEB rulemaking (the rule was issued April 2 and became effective May 4) then:
- They may cut timber from October 15-March 31 provided they are outside of WVDEP-approved buffers of known hibernacula (operators must consult WVDEP for locations of hibernacula) or November 15-March 31 if they either are inside the hiebernacula buffers or assume they will be.
- The operator must agree to reforest up to 70% of the forestland that remained at the time the operator started cutting under this policy OR, if the approved post-mining land use does not call for reforestation, then the operator will need to install roost boxes as part of reclamation.
- The operator needs to submit to WVDEP information listed in its November memorandum to a WVDEP prescribed email address: End.Species.Coal@wv.gov.
- For unpermitted or permitted but not started operations, WVDEP will require operator to submit and obtain approval of NLEB-specific protection and enhancement plan (PEP) before cutting timber. The plan will likely require reforestation of 70% of the mined area or a plan to install roosting boxes. WVDEP provides guidance on completion of PEP’s at https://www.dep.wv.gov/dmr/handbooks/Pages/default.aspx.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC.