1997-06-13_REVISION - M1981302 (69)

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Issue No. 3. Whether the Amendment conforms to the stated post-mining land use of wildlife and agriculture? On December 24, 1981, Flatiron submitted the original mining permit application in this matter. Item No. 17 of the Regular 112 Permit Application form specified the"Proposed future land use (Goal of reclamation)" as agriculture and wildlife habitat. On April 22, 1982 the Board issued Flatiron Permit M-81-302 to mine sand and gravel from the Deepe Farm Pit and to reclaim the site. The post-mining land uses first approved by the Board were, and continue to be in the reclamation plan amendment request,agriculture and wildlife habitat. The opposing parties contend that such post-mining and uses have changed. This allegation is simply not supported by the record. Issue No. 4. Whether the proposed decrease in exposed water surface is appropriate to the stated post-mining land use of wildlife and agriculture and to habitat management and creation? The opposing parties have claimed that the amendment request to decrease the amount of surface water at the site from approximately 38 acres to 4.2 acres is inconsistent with management and creation of wildlife habitat. This claim appears related specifically to potential impacts of the amendment on the Ute ladies' tresses orchid (Spiranthes diluvialis) and the Preble's jumping mouse(Zapus hudsonius preblei),both of which the City claims may be present on adjacent Open Space properties. The Ute ladies' tresses orchid was listed as endangered under the Endangered Species Act of 1973 ("ESA"- 16 U.S.C. §§ 1531 et seg)on January 17, 1992 (57 Fed. Reg. 2053). The Preble's jumping mouse was proposed for listing as endangered on March 15, 1997 (60 Fed. Reg. 13950). Section 34.32.5-116(4) of the Construction Materials statute does not address the creation and management of wildlife habitat directly except to provide that the operator in consultation with the landowner shall determine which parts of the affected land shall be reclaimed for "ground cover for wildlife." See Section 34-32.5-116(4)(m) and (p), C.R.S. Construction Material Rule 3.1.8(2)provides: "Habitat management and creation, if part of the Reclamation Plan, shall be directed toward encouraging diversity of both game and non-game species,and shall provide protection, rehabilitation or improvement of wildlife habitat." The Construction Materials statute also sets forth a general prohibition that"[a]reas outside of the affected land shall be protected from slides or damage during the mining operation and reclamation." Section 34-32.5-116(4)(i), C.R.S. Therefore, the Board's assessment of the adequacy of the amendment with respect to the "management and creation of habitat" is limited to a determination of whether the habitat provides either protection, rehabilitation, "or" improvement of habitat as it pertains to ground cover for wildlife. In addition,the creation of such habitat cannot cause damage outside the permit boundary on adjacent lands. The parties opposed to the amendment sight the ESA in an effort to again confuse the issues before the Board. Enforcement of the ESA is not within the Board's jurisdiction. Rather than focus of the ESA, the Board is required to determine the adequacy of the amendment as it relates to 10