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~SV,ENT OF TN Fey, O"~ t~ N F 7 f 9 bgq~a0 IN REPLY REFER TO: ES/CO: Cemex Mail Stop 65412 ~+~~~~° °'~ f 1, oCr 2 0 2004 OCT 2 Z 2004 Division of Mineral 8 C;e:e_/ Erica Crosby Division of Minerals and Geology Colorado Department of Natural Resources 1313 Sherman Street, Room 215 - Denver, Colorado 80203 Dear Ms. Crosby: 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 Coor ination Act (16 U.S.C. 661 et. seq.), National Environmental Policy Act of 1969 (42 U.S.C. 4321-4327), the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712), the Bald Eagle Protection Act of 1940 (BEPA), as amended (16 U.S.C. 6668 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 azea of the Lyons Quarry include the bald eagle and Preble's meadow jumping mouse. Although Preble's meadow Jumping mice inhabit ripanan azeas along St. Vram Creek, the Service has no reason to believe that the mice will come into contact with the high-pH waters m Cemex "C"Pit. There is, however, some potential for bald eagles to come into contact with the water in "C" Pit. Alongg with the ESA, please be aware of the potential application of the Migratory Bird Treaty Act (MBTA) 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 mi atory bird by any means or in any manner. The MBTA does not require intent to be proven and~there is no incidental take provision. Althou~ absolution from liability under the MBTA is not possible, the Service's Droision of Law En orcement and the Department of Justice have used enforcement and prosecutorial discretion when companies or individuals have made efforts to avoid the unauthonzed take of migratory birds. According to the assessment report, the pH of water in "C" Pit is 12, and there are no ph sical barriers to prevent migratory birds from landing in the highly alkaline waters of the pit. Birds that come into contact with these waters may experience significant corrosive injury to exposed tissues and possibly death. Potential chronic effects to birds from ingestion of inorgamc chemicals (such as selenium) that may be concentrating in the pit water is also of concern. The Service agrees with the statement on 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 pit should be implemented. Until such impplementation, the Service recommends, as an interim measure, daily monitorin of the use of "C" Pit by migratory birds including birds protected by the ESA (i.e., bald eagles. Monitoring 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 US1=k~5 (~w~~rzvrt~ c*n vJr Icllr ~ ~ it"a" United States Department of the Interior FISH AND WILDLIFE SERVICE Ecological Services Colorado Field Office 755 Parfet Street, Suite 361 Lakewood, Colorado 80215