2023-01-10_PERMIT FILE - M2023001 (22)

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ERC Fairmeadows Site Threatened-Endangered Species and General Wildlife Screening 5.0 MIGRATORY BIRD TREATY ACT Migratory birds are protected under the Migratory Bird Treaty Act(MBTA)(16 U.S.C.730-712). The MBTA makes it illegal for anyone to take, possess, import, export, transport, sell, purchase barter, or offer for sale, purchase, or barter any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to Federal regulations. In Colorado, all birds except for the European starling(Sturnus vulgaris), house sparrow (Passer domesticus) and rock pigeon (Columba livia) are protected under the MBTA.A total of 523 migratory bird species are known to occur in the Mountain- Prairie Region (USFWS Region 6, Montana, Wyoming, Utah, North Dakota, South Dakota, Nebraska, Kansas and Colorado);320 of the 523 migratory bird species are known to breed in USFWS Region 6. Migratory birds likely exist within the survey area.The vegetation communities in the survey area provide at the very least, potential nesting and foraging habitat for migratory birds. Northern flicker (Coloptes auratus), black-billed magpie (Pica hudsonious), mourning dove, Eurasian collared-dove (Streptopelia decaocto), and horned lark (Eremophila alpestris)were directly observed on the survey area during the field inspection.Such birds are protected under the MBTA and killing or possession of these birds(or their parts and nests) is prohibited under the MBTA.The migratory birds observed likely utilize the survey area primarily for foraging and limited seasonal nesting. • Based-upon literature review and an onsite assessment of the survey area, ERC has determined that some migratory birds likely utilize the survey area. These birds, their eggs, and active nests are protected underthe MBTA and take or possession of these resources is prohibited.Active nests must become inactive prior to destruction of the nest without a USFWS permit. Five(5)inactive non-raptor migratory bird nests were observed within the survey area. The nesting season in Colorado for non- raptor migratory birds occurs between April 1 and August 31(CPW 2020).Seasonal MBTA non-raptor bird nesting activity status can vary seasonally and from yearto year,therefore nesting surveys should be conducted no more than 7-10 days prior any future land use changes to ensure active nests are not disturbed during nesting season. • Raptor (non-eagle) migratory bird nest sites are further protected by CPW guidelines. CPW has established recommended buffer zones and seasonal activity restrictions for a variety of Colorado raptors. Three (3) inactive raptor nests were observed and no CPW mapped raptor nest protection zones are located within the survey area (CPW 2022a). Inactive raptor nest sites have no regulatory restriction and do not require further agency coordination; however nest activity status can vary seasonally and from year-to-year. Future land use changes may require additional nest surveys (generally between February 1 and September 15 (CPW 2020))to determine activity status within %z to%mile of the survey area to ensure compliance with CPW recommendations. • Eagle nest sites are protected under Bald and Golden Eagle Act,further restricting destruction of any nest without a permit. No eagle nests sites were observed and no CPW nest sites eagle nests sites, communal roost sites, or winter roost sites are mapped on or within the vicinity of the survey area. Inactive eagle nest sites require further agency coordination even when nests are unoccupied as nest activity status can vary seasonally and from year-to-year. Future land use changes may require additional nest surveys (generally to be conducted between December 1 and July 31 (CPW 2020))to determine activity status within % to % mile of the survey area to ensure compliance with CPW recommendations. 9