Section 69-05.2-13-08 - Performance standards - General requirements - Protection of fish, wildlife, and related environmental values1. 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.N.D. Admin Code 69-05.2-13-08
Effective August 1, 1980; amended effective June 1, 1983; May 1,1990; May 1, 1992; January 1, 1993; June 1, 1994; May 1, 1999.Amended by Administrative Rules Supplement 2016-362, October 2016, effective 10/1/2016.General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-24