Section 87.138. Protection of fish, wildlife and related environmental values

(a) A person conducting surface mining activities shall, to the extent possible using the best technology currently available:

(1) Minimize disturbances and adverse impacts of the activities on fish, wildlife and related environmental values, and achieve enhancement of the resources when practicable.

(2) Locate and operate haul and access roads to avoid or minimize impacts to fish and wildlife species or other species protected by State or Federal law.

(3) Avoid disturbance to, enhance where practicable, or restore, habitats of unusually high value for fish and wildlife.

(4) Restore, enhance when practicable, or maintain natural riparian vegetation on the banks of streams, lakes and other wetland areas.

(5) Not use restricted pesticides on the areas during surface mining and reclamation activities, unless approved by the Department of Agriculture.

(6) Do the following, if fish and wildlife habitat is the postmining land use, in addition to the requirements of § § 87.147—87.153, 87.155 and 87.156:

(i) 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 release of bonds.

(ii) Distribute plant grouping to maximize benefit 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.

(7) 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, when cropland is to be the alternative postmining land use and when appropriate for wildlife and crop management practices. Wetlands shall be preserved or created rather than drained or otherwise permanently abolished.

(8) Intersperse reclaimed lands with greenbelts utilizing species of grass, shrubs and trees useful as food and cover for birds and small animals, unless the green belts are inconsistent with the approved postmining land use, when the primary land use is to be residential, public service or industrial land use.

(9) Design fences, overland conveyors and other potential barriers to permit passage for large mammals, except if the Department determines that the requirements are unnecessary.

(10) Fence, cover or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials.

(b) A person who conducts surface mining activities shall promptly report to the Department the presence in the permit area of threatened or endangered species under State or Federal laws of which that person becomes aware and which was not previously reported to the Department by that person. Upon notification, the Department will consult with the Game Commission or the Fish and Boat Commission and appropriate Federal fish and wildlife agencies and, after consultation, will identify whether, and under what conditions, the operator may proceed.

(c) Surface mining activity may not be conducted in a manner which would result in the unlawful taking of a bald or golden eagle, its nest or its eggs. The operator shall promptly report to the Department a golden or bald eagle nest within the permit area of which the operator becomes aware. Upon notification, the Department will consult with the United States Fish and Wildlife Service and the Game Commission and, after consultation, will identify whether, and under what conditions, the operator may proceed.

(d) Surface mining activity may not be conducted which is likely to jeopardize the continued existence of endangered or threatened species listed by the Secretary of the Interior, the Game Commission or the Fish and Boat Commission or which is likely to result in the destruction or adverse modification of designated critical habitats of these species in violation of the Endangered Species Act of 1973 (16 U.S.C.A. § § 1531—1544).

The provisions of this § 87.138 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended February 17, 1984, 14 Pa.B. 524, effective August 4, 1984, 14 Pa.B. 2860; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206833) to (206835).

Notation

Authority

The provisions of this § 87.138 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.1—1396.19a); The Clean Streams Law (35 P. S. § § 691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).

Cross References

This section cited in 25 Pa. Code § 87.84 (relating to fish and wildlife protection and enhancement plan).