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March 2000 Record of Decision Page 21 <br />E. Surface Mining Control and Reclamation Act of 1977 (SMCRA): This evaluation was <br />completed understanding that the regulations contained in SMCRA and the subsequent Federal <br />Regulations, and the approved Colorado Surface Coal Mining Reclamation Act will be <br />implemented at the permitting phase (Final EIS, Section 1.5). These acts authorize Colorado <br />Division of Minerals and Geology to administer/enforce approved coal mining operations on <br />Federal lands with prior consent/concurrence of the surface management agency and <br />conditions prescribed by the surface management agency for the protection of non-mineral <br />interests. Portions of the Elk Creek Coal Lease Tract lies on National Forest System lands with <br />Federal coal reserves. The Forest Service is the surface management agency. The decision is <br />consistent with these authorities. <br />F. Unsuitability Criteria for Coal Development: Federal regulations in 43 CFR 3461 state <br />that 20 "unsuitability criteria" must be used to determine the suitability of lands for coal leasing. <br />The Forest Plan requires application of the unsuitability criteria. The unsuitability criteria were <br />applied to the unleased lands in the Elk Creek Coal Lease Tract, and documentation is <br />contained in the Final EIS, Appendix D. The findings were that the tract was determined <br />suitable for coal mining following application of criteria 3, 4, 5, 6, 7, 8, 10, 13, 16, 17, 18, 19 and <br />20, and that criteria 1, 2, 9, 11, 12, 14 and 15 were found to be suitable after applying <br />exemptions and exceptions. Detailed information pertaining to special status species was <br />covered in a Biological Assessment/Biological Evaluation (administrative record). The decision <br />is consistent with application of the unsuitability criteria. <br />G. The Endangered Species Act (16 USC 1531 et. seq.): In accordance with Section 7 (c) of <br />the Endangered Species Act, as amended, a list of the listed and proposed threatened or <br />endangered species which may be present in the Elk Creek Coal Lease Tract was requested <br />from the US Fish and Wildlife Service (USFWS) (Final EIS, Table 3.9-1 ). The information <br />provided indicated that bald eagle is a wintering species along the North Fork of the Gunnison <br />River, near the lease tract. It was also identified that suitable habitat for the Southwest willow <br />flycatcher may be present in the lease tract. <br />As required by the Act, Biological Assessments were prepared addressing the potential impacts <br />to these species (administrative record). The analyses concluded that this project would have <br />no effects to important or critical habitats for the bald eagle or the Southwest willow flycatcher <br />(Final EIS, Section 3.9.3.2) or the endangered Colorado River endangered fish species (Final <br />EIS, 3.10.3.2). This assessment has been reviewed by the USFWS who issued a biological <br />opinion on January 13, 2000. The eventual lessee will furnish to the regulatory officer at the <br />Office of Surface Mining a revised estimate of average annual water depletion. <br />H. Forest Service Manual 2607.32 -Sensitive Species: The potential effects of this decision <br />on sensitive species (Hapman's Coolwort, Spotted bat, Townsend's big-eared bat, Northern <br />goshawk, Flammulated owl, Three-toed woodpecker, Black swift, Olive-sided flycatcher, <br />Golden-crowned kinglet, Loggerhead shrike, Tiger salamander, Boreal toad and Northern <br />leopard frog) have been analyzed and documented in Sections 3.7.3.5 and 3.9.3 of the Final <br />EIS and the Biological Evaluation in the administrative record. Individuals or habitat may be <br />affected, but there will be no trend towards Federal listing or loss of viability of any of the <br />sensitive species due to this decision. <br />I. National Historic Preservation Act: SHPO was involved throughout the NEPA process. <br />Additional consultation will be done at the mine plan stage (see Section I of this ROD). The <br />Northern Ute Tribe was consulted on this project (Final EIS, Section 3.11.4). The purpose of <br />this consultation was to identify tribal concerns with the project and to identify any sites to which <br />traditional cultural values may be ascribed. The Northern Ute Tribe did not raise any concerns. <br />Forest Service -Elk Creek Coal Lease <br />