2012-07-10_REVISION - C1981041 (7)

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the permit area. In addition, based on demonstrations included in the PR -4 application (see Proposed Decision and Findings of Compliance dated February 3, 2009), the Division finds that an alternative "Industrial or Commercial" use meets the requirements of Rule 4.16.3, for the entire Unit Train Loadout area and for designated portions of the South Portals facilities area (2.07.6(2)(1)). Portions of the South Portals area were approved for "Industrial or Commercial" post -mine land use with PR -3 (see Proposed Decision and Findings of Compliance dated July 30, 2007). The areas designated as Industrial or Commercial at the Unit Train Loadout and at the South Portals have been full Phase III bond released. 14. The Division approved a Steep Slope Variance from Approximate Original Contour (AOC), to accommodate an alternative "Industrial or Commercial" land use for a designated portion of the South Portals facilities area with Permit Revision No. 3. See the Proposed Decision and Findings of Compliance for PR -3 details specific to the Steep Slope AOC variance. 15. The Division finds, pursuant to 2.07.6(2)(n), that the activities proposed by the permittee would not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitats. This finding is based on information contained in Tabs 10 and 11 of the permit application, and correspondence with the Office of Surface Mining (OSM), the Colorado Division of Wildlife (CDOW) and the U.S. Fish and Wildlife Service (USFWS) in association with previous permitting actions. CDOW, OSM, and USFWS were contacted during the PR -5 review, and their input regarding potential impacts to endangered or threatened species was specifically requested. No comments were provided by CDOW, OSM, or USFWS. Each of these agencies were given the opportunity to comment but did not express any concerns regarding the proposed change in post -mine land use associated with Permit Revision No. 5. During the PR -3 review and approval process, OSM prepared a Biological Assessment addressing the impacts of the operation on threatened and endangered species, and entered into formal consultation with USFWS due to potential effects of mine related water depletions on threatened and endangered fish species of the Upper Colorado River Basin. Ultimately, USFWS issued a Final Biological Opinion for PR -3 which acknowledged OSM's determination that PR -3 proposed actions would not affect the bald eagle, Canada lynx, southwestern willow flycatcher, Uinta basin hookless cactus, yellow - billed cuckoo, or Debeque phacelia. Regarding water related depletion impacts to the endangered fish species (Colorado pikeminnow, razorback sucker, humpback chub, and bonytail), Snowcap Coal Company entered into a recovery agreement with USFWS for the projected 22.1 acre -feet per year projected depletion. The Final Biological Opinion (incorporated along with the Recovery Agreement as Appendix 11 -1 of the permit application) concluded that PR -3 approval is not likely to jeopardize the continued existence of the endangered fish species and is not likely to destroy or adversely modify designated critical habitat for the species. The Division's finding reflects the conclusions of the September 20, 2006 Biological Assessment prepared by OSM, and the January 4, 2007 Final Biological Opinion prepared by USFWS. Operational plans and water depletion projections were not revised in association with the PR -5 application and there have been no species added to the Threatened and Endangered Species list for Mesa County; as such the determinations and fmdings made in association with PR -3 (approved July 30, 2007) remain valid. Permit Revision No. 5 18 July 10, 2012