2023-12-21_PERMIT FILE - C1981044 (10)

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Response: The OSMRE's statement is inconsistent with and goes well beyond the language and approach adopted and approved by the USFWS in the "Recovery Implementation Program Action Plan" (USFWS, Revised March 8, 2004), which addresses defined in-stream flow recommendations and cooperative flow management provisions for the Upper Colorado River Basin. BTUEC has not previously updated or revised the consumptive use projections presented in the Eagle Mines PAP subsequent to approval of Temporary cessation, because no changes in consumptive use have occurred. BTUEC continues periodic pumping from the partially flooded underground mine workings to maintain water levels below the most recent E-Seam workings. Discharge from mine pumping is monitored for compliance with applicable CDPS discharge requirements and exceeds any minor evaporation from existing sedimentation ponds and impoundments (as documented by the attached updates to Exhibit 36), making BTUEC a net positive discharger. 2) The OSM found that Exhibit 15A, "Threatened, Endangered, and Sensitive Species Information" (TES) of the Eagle Mine Complex permit does not contain information for three species that were listed (or considered candidates for listing) after the 1987 consultation. Please update Exhibit 15A to address TES information for the Canada lynx (Lynx Canadensis), the Mexican spotted owl (Strix occidentalis lucida), and the candidate Yellow-billed cuckoo (Coccyzus americanus). Response: The identified species were not included in the TES discussion prepared by the Colorado Division of Wildlife (CDOW) because, in the judgment of the CDOW Wildlife Conservation Biologist, there is negligible potential of occurrence for these species within the Eagle Mines Permit Area, based on habitat preferences, known ranges, and recorded sightings. Confirmation of this conclusion is provided by research and review of the Colorado Division of Wildlife Natural Diversity Information Source (NDIS) (http:,/ndis.nrel.colostate.edu/wildlifespx.asp), which provides the following information relative to the identified species: 0 Canada Lynx Preferred habitat for Canada lynx is "Northern coniferous forests", and their range is "...restricted to extremely isolated areas of the mountains of the central portion of the state." The CDOW "Lynx Overview" indicates that the preferred food source for the lynx is the snowshoe hare, found predominantly in mature stands of Engleman spruce/sub-alpine fir, and occasionally in willow-choked corridors along mountain streams and in avalanche chutes. Given that there is no coniferous forest within the Eagle Mines Permit Area or in any proximity to this area, and that the area is bisected by State Highway 13, the area is not isolated or remote and does not have suitable habitat characteristics, therefore the potential for occurrence of lynx in this area is extremely remote. Mexican Spotted Owl Preferred habitat for the Mexican spotted owl is "..complex forest structures or rocky canyons that contain uneven-aged multi-level and old-aged, thick forests." In Colorado, "..they occur in the lower elevation forests, mostly in deeply incised rocky canyons in southern Colorado and along the Front Range." The NDIS mapping of spotted owl occurrence does not include any of Routt or Moffat counties. Given that the Eagle Mines Permit Area is dominated by sagebrush-grasslands, with some surrounding areas of oak-brush, there are no forest stands within or in close proximity to the area, and occurrence mapping does not include the Permit Area, there is negligible potential for the spotted owl to occur in this area. Yellow-Billed Cuckoo • Preferred habitat for the Western yellow-billed cuckoo is, "...mountain parks (four records) and in foothills and lower mountains (four records)." This species is a, "Rare spring and fall migrant and summer resident on