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tN,ENT Op Ty 6~ C 9 o a ~'4gCH 5.104 IN REPLY REFER TO: ES/CO: Cemex Mail Stop 65412 United States Department of the Interior FISH AND WII,DLIFE SERVICE Ecological Services Colorado Field Office 755 Pazfet Street, Suite 361 Lakewood, Colorado 80215 RECEI?°E~Z OCT 2 0 2004 OCT 2 2 ?004 Erica Crosby Division of Minerals and Geology Colorado Department of Natural Resources 1313 Sherman Street, Room 215 Denver, Colorado 80203 Deaz Ms. Crosby: Division o4 Minerai> & ffav3~ The U.S. Fish and Wildlife Service (Service) received your letter dated September 17, 2004. requesting comments on the Wildlife Resources Assessment, Cemex "C" Pit and CKD Disposal Site in Boulder, Colorado (CEMEX, Inc. Lyons Quarry, Permit No. M-1977-208). These comments have been prepared under the authority of the Fish and Wildlife Coordination Act (16 U.S.C. 661 et. seq.), National Envtronmental PoPtcy Act of 1969 (42 U:S.C. 4321-4327), the Migratory Bird Treaty Act (1V1BTA) (16 U.S.C. 703-712), the Bald Eagle Protection Act of 1940 (B~PAj, as amended (16 U.S.C. 668 et. seq.), and the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C 1531-1543). Species protected under the ESA that occur within the area of the Lyons Quarry include the bald eagle and Preble's meadow jumping mouse. Although Preble's meadow lumpmg mtce inhabit ripanan areas along St. Vram Creek, the Service has no reason to believe that the mice will come into contact with the high-pH waters in Cemex "C" Pit. There is, however, some potential for bald eagles to come mto contact with the water in "C" Pit. Alongg w_ith the ESA, please be awaze of the potential application of the Miggrraatory Bird Treaty Act (META) to conditions that exist in the Cemex "C' Pit. Under the MBTA, it is unlawful, unless permitted by regulations, to pursue, hunt, take, capture, kill or attempt to take, capture, or kill any mtgratory bird by any means or m any manner. The MBTA does not require intent to be proven and there is no incidental take provision: Althoug~hh absolution from liability under the MBTA is not possible, the Service's Division of Law Eii~'orcement and the D aztment of Justice have used enforcement and prosecutorial discretion when companies or individuals have made efforts to avoid the unauthorized take of migratory birds. According to the assessment report, the pH of water in "C" Pit is 12, and there aze no ph ical barriers to prevent migratory birds from landing in the highly alkaline waters of the pit. Birds that come mto contact with these waters may expenence stgntficant corrosive injury to exposed tissues and ossibly death. Potential chronic effects to birds from ingestion of inorganic chemicals (such as selenium) that maybe concentrating in the pit water is also of concern. The Service agrees with the statement en pa e 12 of the Wildlife Resources Assessment that major mitigation efforts such as netting or other mechanisms to prevent birds from landing in the pit water may be needed if a permanent, long-term solution is not developed. The Service also agrees that removal of the water, and prevention of further excess accumulation of water in the pu should be implemented. Until such implementation, the Service recommends, as an interim measure, daily monitorm of the use of "C" Pit by migratory birds including birds protected by the ESA (i.e., bald eagles. Monitorittg records in the form of a logbook that includes daily entries of bird use, signs of injury, and mortality should be made available for review by the