(a) Any person conducting surface mining activities shall, to the extent possible using the best technology currently available, minimize disturbances and adverse impacts of the activities on fish, wildlife, and related environmental values, and achieve enhancement of such resources where practicable.
(b) No surface mining activity shall be conducted which is likely to jeopardize the continued existence of endangered or threatened species or which is likely to result in the destruction or adverse modification of designated critical habitats of such species in violation of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). The operator shall promptly report to the Commission the presence in the permit area of any critical habitat of a threatened or endangered species listed by the Secretary, any plant or animal listed as threatened or endangered under state or federal law, or any bald or golden eagle, of which the operator becomes aware and which was not previously reported to the Commission by that person. Upon notification, the Commission shall consult with appropriate state and federal fish and wildlife agencies and, after consultation, shall identify whether, and under what conditions, the operator may proceed.
(c) No surface mining activity shall be conducted in a manner which would result in the unlawful taking of a bald or golden eagle, its nest, or any of its eggs. The operator shall promptly report to the Commission any golden or bald eagle nest discovered within the permit area. The operator shall make a survey to determine whether nest sites have eagles present, the range and habitat used by eagles at occupied sites, and to determine whether other nesting sites are present. Upon notification, the Commission shall consult with the U.S. Fish and Wildlife Service and the Texas Parks and Wildlife Department. After consultation, the Commission shall determine whether, and under what conditions the operator may proceed.
(d) A person who conducts surface mining activities shall ensure that the design and construction of electric power lines and other transmission facilities used for or incidental to the surface mining activities on the permit area are in accordance with the guidelines set forth in Environmental Criteria for Electric Transmission Systems (USDI, USDA (1970)), or in alternative guidance manuals approved by the Commission. Distribution lines shall be designed and constructed in accordance with REA Bulletin 61-10, Powerline Contacts by Eagles and Other Large Birds, or in alternative guidance manuals approved by the Commission. For informational purposes, these two documents are available at the office of the Commission, 1701 N. Congress Avenue, Austin, Texas.
(e) Each person who conducts surface mining activities shall, to the extent possible using the best technology currently available:
  (1) locate and operate haul and access roads so as to avoid or minimize impacts to important fish and wildlife species or other species protected by state or federal law;
  (2) fence roadways where specified by the Commission to guide locally important wildlife to roadway underpasses. No new barrier shall be created in known and important wildlife migration routes;
  (3) fence, cover, or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials;
  (4) restore, enhance where practicable or avoid disturbance to habitats of unusually high value for fish and wildlife;
  (5) restore, enhance where practicable, or maintain natural riparian vegetation on the banks of streams, lakes, and other wetland areas;
  (6) afford protection to aquatic communities by avoiding stream channels as required in §12.355 of this title (relating to Hydrologic Balance: Stream Buffer Zones) or restoring stream channels as required in §12.341 of this title (relating to Hydrologic Balance: Diversions);
  (7) not use persistent pesticides on the area during surface mining and reclamation activities, unless approved by the Commission;
  (8) to the extent possible prevent, control, and suppress range, forest, and coal fires which are not approved by the Commission as part of a management plan;
  (9) if fish and wildlife habitat is to be a primary or secondary postmining land use, the operator shall in addition to the requirements of §§12.390-12.393 and 12.395 of this title (relating to Revegetation: General Requirements, to Revegetation: Use of Introduced Species, to Revegetation: Timing, to Revegetation: Mulching and Other Stabilizing Practices, and to Revegetation: Standards for Success):
    (A) select plant species to be used on reclaimed areas, based on the following criteria:
      (i) their proven nutritional value for fish and wildlife;
      (ii) their uses as cover for fish and wildlife; and
      (iii) their ability to support and enhance fish and wildlife habitat after release of bonds; and
    (B) distribute plant groupings to maximize benefit to fish and wildlife. Plants should be grouped and distributed in a manner which optimize edge effect, cover, and other benefits for fish and wildlife;
  (10) where cropland is to be the postmining land use and where appropriate for wildlife and crop management practices, 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. Wetlands shall be preserved or created rather than drained or otherwise permanently abolished; and
  (11) where the primary land use is to be residential, public service, or industrial land use, intersperse reclaimed lands with greenbelts utilizing species of grass, shrubs and trees useful as food and cover for birds and small animals, unless such green belts are inconsistent with the approved postmining land use.

Source Note: The provisions of this §12.380 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective November 4, 1997, 22 TexReg 10640.