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Purpose of this Document <br /> In 1973, Congress passed the Endangered Species Act(ESA) in order to "...provide a means <br /> whereby the ecosystems upon which endangered species and threatened species depend may be <br /> conserved..." (ESA section 2). Included in section 7 of that Act, is the requirement that every <br /> federal agency must insure that any action"...authorized,funded, or carried out...is not likely to <br /> jeopardize the continued existence of any endangered or threatened species...". To meet this <br /> requirement, Congress required that the action agencies request assistance from the U. S. Fish <br /> and Wildlife Service (Service) and seek their biological opinion (BO) regarding whether the <br /> proposed action is likely to jeopardize the continued existence of a listed species. <br /> This document is that required examination of the OSMRE's proposed action (mine plan <br /> approval) and the Service's BO on the proposed action's effects to the Colorado pikeminnow, <br /> razorback sucker,humpback chub, and bonytail (four endangered fish). This BO also determines <br /> whether the proposed action would destroy or adversely modify critical habitats for the four <br /> endangered fish. <br /> This BO relies on the newly revised(2016) regulatory definition of"destruction or adverse <br /> modification" of critical habitat(Federal Register,February 11, 2016,Volume 81,No. 28 p. <br /> 7226),which states, "Destruction or adverse modification means a direct or indirect alteration <br /> that appreciably diminishes the value of critical habitat for the conservation of a listed species. <br /> Such alterations may include,but are not limited to, those that alter the physical or biological <br /> features essential to the conservation of a species or that preclude or significantly delay <br /> development of such features." <br /> Background <br /> As a result of a legal challenge (WildEarth Guardians v. U.S. Office of Surface Mining et al., <br /> Case 1:13-cv-00518-RBJ (D. Colo. 2015)),the District Court of Colorado required the Office of <br /> Surface Mining and Reclamation Enforcement(OSMRE)to review their approval of mining <br /> plans at the Colowyo and Trapper Mines in Moffat County, Colorado (including any effects from <br /> the action of mining plan approval) and complete additional analysis under the National <br /> Environmental Policy Act(NEPA). Among other things, the court's findings indicated that the <br /> indirect effect of combustion at the Craig Generating Station,where the coal would be burned, <br /> from coal mined under the plan should be considered as "reasonably foreseeable"under NEPA <br /> and should be included in the NEPA analysis. The Court's direction to explore those indirect <br /> effects under NEPA had the unintended consequence of leading to an examination of these <br /> effects under section 7 of the ESA. <br /> Indirect effects under regulations implementing section 7 of the ESA are defined as "...those that <br /> are caused by the proposed action and are later in time, but still are reasonably certain to occur." <br /> (Emphasis added.) This definition differs from the NEPA phrase"reasonably foreseeable." This <br /> difference may reflect a distinction between the procedural nature of NEPA vs. the substantive <br /> nature of section 7 and is touched on briefly in the Federal Register notice finalizing the 1986 <br /> regulations on conducting section 7 consultation (FR June 3, 1986,Volume 51,No. 106, <br /> p. 19933). <br /> 1 <br />