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2019 Biological Resources Inventory Report
<br /> 1.2.1 Special Status Species
<br /> The Endangered Species Act(ESA) and its implementing regulations in Title 50 of the Code of Federal
<br /> Regulations (CFR) Section 17 prohibit the take of any fish or wildlife species that is federally listed as
<br /> threatened or endangered without prior approval pursuant to either Section 7 or Section 10 of the ESA.
<br /> The USFWS is responsible for the implementation of the ESA.
<br /> Section 3 of the ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
<br /> collect or to attempt to engage in any such conduct' (16 United States Code [USC] § 1532 (19)). Harm, in
<br /> this case, means an act that actually kills or injures a federally listed wildlife species and "may include
<br /> significant habitat modification or degradation where it actually kills or injures wildlife by significantly
<br /> impairing essential behavioral patterns, including breeding, feeding or sheltering." To harass means to
<br /> perform "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by
<br /> annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are
<br /> not limited to, breeding, feeding or sheltering" (50 CFR §17.3). In addition, Section 9 of the ESA details
<br /> generally prohibited acts, and Section 11 provides for both civil and criminal penalties for violators
<br /> regarding species federally listed as threatened or endangered.
<br /> Colorado Revised Statute (CRS) 33-2-105 states that it is unlawful to "take, possess, transport, export,
<br /> process, sell or offer for sale, or ship" any species listed as threatened or endangered by CPW. According
<br /> to CRS 33-1-102 "Take" means to acquire possession of wildlife; but such term shall not include the
<br /> accidental wounding or killing of wildlife by a motor vehicle, vessel, or train." Activities that would trigger
<br /> the need for USFWS or CPW consultation or permitting for the Project are discussed in more detail in
<br /> Section 3.
<br /> It is unlawful under the Migratory Bird Treaty Act (MBTA) (50 CFR § 10.13) to "pursue, hunt, take, capture
<br /> or kill; attempt to take, capture or kill; possess, offer to or sell, barter, purchase, deliver or cause to be
<br /> shipped, exported, imported, transported, carried, or received any migratory bird, part, nest, egg, or
<br /> product." Birds protected under this act include most native birds, including their body parts (e.g.,
<br /> feathers), nests, and eggs.
<br /> The Bald and Golden Eagle Protection Act(BGEPA) prohibits the take of Bald or Golden Eagles by any
<br /> party. The BGEPA defines "take" as"to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect,
<br /> destroy, molest, and disturb individuals, their nests and eggs" (16 USC 668c). "Disturb" is defined by
<br /> regulation at 50 CFR 22.3 in 2007 as "to agitate or bother a Bald or Golden Eagle to a degree that
<br /> causes...injury to an eagle, a decrease in productivity, or nest abandonment..."
<br /> CPW recommends a set of seasonal buffers for specific nesting raptors that commonly occur in Colorado,
<br /> including but not limited to Bald and Golden eagles (CPW 2008). These buffers are for active nests and
<br /> range from 0.25 mile to 0.5 mile depending on the species. The associated date range for each seasonal
<br /> buffer remains the same annually.
<br /> 2 Tucson South Sand and Gravel Mine—Brighton, Colorado
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