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• MASSEY SEME~F SCHWARZ St BAILEY, P.C. J. Scott Franklin, P.E. July 18, 2001 Page 2 The Service comment accurately described a portion of the Adams County Conditional Use Permit ("CUP") process that culminated in a May 21, 1990 approval of the CUP by the Adams County Board of County Commissioners. The process included a cooperative effort between the Service, MPC, Adams County, and the Colorado Department of Wildlife to protect a bald eagle communal roost located west of the active mine site along the South Platte River by way of the establishment of a conservation easement now held by Adams County. This effort predated the Section 404 permit application by several years and it allowed the Service to concur with the Corps' later finding, for purposes of Endangered Species Act compliance, that the issuance of Permit No. 199380590 would not affect bald eagles on the site. The primary concern expressed by the Service in its February, 1994 comment involved the presence or absence of the Ute ladies-tresses orchid (spiranthes di/uvialis) on the site.' The Service also suggested that "preliminary plans for the rerouting of Bull Seep be provided to the Colorado Department of Wildlife, Adams County, and the Service for review," as the Service sought to ensure that: "impacts on the [bald eagle] roost trees are avoided, construction activities are timed to avoid impact, and the - . environmental benefits of the new channel are maximized." Based on a review of the record, we believe that MPC complied with Special Condition E of Permit No. 199380509. By letter dated March 23, 1994, MPC provided the Corps responses to the public comment letters, including the Service's February, 1994 letter. The company's response confirms that: detailed routing plans [for the Bull Seep] were developed and reviewed by the U.S. Fish & Wildlife, Bill Noonan and the Colorado Division of Wildlife, Pat Tucker. These plans, of which a copy is enclosed, have been made a part of the approved [Adams County] Conditional Use Permit. if there are any changes, we would be required to seek approval from the County in order to comply with our commitments. See March 23, 1994 MPC letter at 2 (emphasis added). The MPC response to comments confirms that the Corps was not only provided a copy of the approved Bull Seep alignment plans prior to the approval of Permit No. 199380590, but that both the Service and the CDOW were involved in the development of such plans in 1990 during the CUP and MLRB processes. The fact that the CDOW's February 18, 1994 public comment on the Section 404 permit application did not reference the re-routing at all, and further stated that the MPC permit proposal would result in a "significant improvement in wildlife habitat at this site" is evidence of the fact ' This concern resulted in Special Condition D to Permit No. 199380590. Compliance with Special Condition D is reflected in the Corps' files for Permit No. 199380590.