2019-08-01_REVISION - M2018051 (4)

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Biological Survey Report Black Mountain Sand Weld LLC—Lost Creek Mine (Opuntia polyacantha), and milkvetch (Astragalus sp.). Shrub and subshrub species observed within the survey area include sand sagebrush and prairie sagewort(Artemisia frigida). 3.2 WETLANDS AND WATERBODIES Based on field observations, two ephemeral waterbodies (S002 and 5003) were identified within the survey area. 5002, totaling approximately 55 linear feet, was characterized as an ephemeral channel extending to the south of the culverted drainage associated with the adjacent two-track access road.5003, totaling approximately<0.1 acre, was characterized as an ephemeral pond extending to the north of the culverted drainage associated with the adjacent two-track access road. All features were dry at the time of survey and are expected to only hold water for a short duration after a rainfall event. No wetlands were observed within the survey area. 3.3 SPECIAL STATUS SPECIES The USFWS identified three federally listed species (Mexican spotted owl, Colorado butterfly plant, and Ute ladies'-tresses orchid) as having the potential to occur within or adjacent to the Project (USFWS 2018b). Based on an assessment of each species' habitat requirements, range, and distribution, no suitable habitat for the Mexican spotted owl, Colorado butterfly plant, or Lite ladies'-tresses orchid was identified within the survey area. If water-related activities/use that would affect the South Platte River Basin would occur as a result of Project implementation, indirect impacts to five federally listed species (least tern, piping plover,whooping crane, pallid sturgeon, and western prairie fringed orchid) may occur. In lieu of consultation with CPW prior to field surveys, TRC determined that one state-listed species (burrowing owl) has the potential to occur within the survey area. Two Dot Consulting conducted a suitable habitat assessment and species-specific survey in July 2018. A total of 20 individuals, and 36.26 acres of suitable habitat, was identified (Two Dot Consulting 2018). No additional suitable habitat was identified within the survey area. Small burrows and holes, indicative of Wyoming ground squirrels, mice,and swift fox and/or coyote were present throughout the survey area. 3.4 MIGRATORY BIRDS Birds and raptors are protected pursuant to the Migratory Bird Treaty Act (MBTA) and Bald and Golden Eagle Protection Act(BGEPA). However, provisions for the take of migratory birds that are unintentionally killed or injured during Project work was changed in December 2017 to state that actions that incidentally result in migratory bird death and injury(known as "incidental take") are permissible as long as no other laws are broken. In response, eight states filed litigation challenging this change in September 2018.The litigation is still on-going. Several migratory bird species are also Colorado state-protected species, including the burrowing owl. Any Project work must comply with the BGEPA and implement measures to avoid incidental take, as well as Colorado regulations for state-protected species. Due to the uncertainty surrounding the change in the MBTA direction and subsequent litigation,for future projects,TRC recommends that Project activities be conducted to follow historic interpretations of the MBTA. 1 TRC Page 14