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<br />Peabody <br />• <br />BTU Empire Corporation <br />Mr. Daniel I. Hernandez <br />Senior Environmental Protection Specialist <br />Colorado Division of Reclamation, Mining, and Safety <br />1313 Sherman Street - Room 215 <br />Denver, Colorado 80203 <br />(303) 866-4933 <br />29515 Routt County Road #27 <br />Oak Creek, CO 80467 <br />970.879.3800 <br />January 3, 2007 <br />Re: BTU Empire Corporation - Eagle 5 and 9 Mines (C-81-044), Permit Renewal RN-04 - Additional <br />Requested Information and Extension <br />Dear Mr. Hernandez: <br />This transmittal responds to your letter of December 11, 2006, summarizing T&E consultation requirements and <br />conveying comments from the Office of Surface Mining, Reclamation, and Enforcement (OSMRE) regarding <br />BTU Empire Corporations (BTUEC) pending Permit Renewal RN-04. <br />After reviewing your summary of consultation requirements, and the referenced requirements of Rule 2.07.6(2), <br />we would submit that the CDRMS should be able to make the required findings without further consultation <br />given the following considerations: <br />The required finding was made on the previous Permit Renewal (RN-03). Under the current care and <br />maintenance status, the potential for T&E species impacts remains unchanged from RN-03. - The <br />operation remains in "Temporary Cessation", and until such time as this status changes, there is no change <br />in the potential for any impacts to T&E species or habitats. A change from the current operational status <br />would require submittal and CDRMS approval of some form of permit revision (dependent on the nature <br />and scope of the activities proposed at that time). BTUEC agrees that review of the potential for any <br />changes to T&E impacts would be appropriate at that time. <br />While additional species have been added to the US Fish and Wildlife Service (USFWS) TES Listing <br />subsequent to the RN-03 Findings, the 11/21/06 Rare and Endangered Species Statement, prepared by <br />the Colorado Division of Wildlife (CDOW) does not identify any of the newly listed species as <br />occurring within the Empire Permit Area. <br />Within the context of the above considerations, the following respond to the specific supplemental information <br />requested by OSMRE: <br />1) The OSM stated that, "Any loss (of water), no matter how small, is considered a depletion to the Upper <br />Colorado River system and an automatic "may affect/likely to adversely affect" to the continued existence <br />of the Colorado pikeminnow, humpbacked chub, razorback sucker, and bonytail. " OSM noted that water <br />consumption records in the Eagle Mine Complex permit have not been updated since the mine went into <br />Temporary Cessation in 1995, and that Exhibit 36 does not include evaporative loss from sediment control <br />ponds and impoundments. Please therefore update Exhibit 36, "Windy Gap Process ", in the Eagle Mine <br />Complex permit by addressing current water consumption and use, including evaporative water loss from <br />sediment control structures.