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-r <br /> <br />IN REPLY REFER TO: <br />ES/CO: Cemex <br />Mail Stop 65412 <br />United States Department of the Interior <br />FISH AND WILDLIFE SERVICE <br />Ecological Services <br />Colorado Field Office <br />755 Parfet Street, Suite 361 <br />Lakewood, Colorado 80215 <br />osp <br />CW\ oSV1? (DYV1WV <br />P t wN <br />RECEIVED <br />OCT 2 0 2004 OCT 2 2 2004 <br />91"On of i bwsl- & @7::.-7 <br />Erica Crosby <br />Division of Minerals and Geology <br />Colorado Department of Natural Resources <br />1313 Sherman Street, Room 215 <br />Denver, Colorado 80203 <br />Dear Ms. Crosby: <br />The U.S. Fish and Wildlife Service (Service) received your letter dated September 17, 2004 <br />requesting comments on the Wildlife Resources Assessment, Cemex "C" Pit and CKD Disposal <br />Site in Boulder, Colorado (CEMEX, Inc. Lyons Query, Permit No. M-1977-208). These <br />comments have been prepared under the authority of the Fish and Wildlife Coordination Act (16 <br />U.S.C. 661 et. seq.), National Environmental Policy Act of 1969 (42 U.S.C. 4321-4327), the <br />Mitory Bird Treaty Act (MBTA) (16 U.S.C. 703-712), the Bald Eagle Protection Act of 1940 <br />(BggrraaEPA), as amended (16 U.S.C. 668 et. seq.), and the Endangered Species Act (ESA) of 1973, as <br />amended (16 U.S.C 1531-1543). <br />Species protected under the ESA that occur within the area of the Lyons Quarry include the bald <br />eagle and Preble's meadow jumping mouse. Although Preble's meadow jumping mice inhabit <br />riparian areas along St. Vram Creek, the Service has no reason to believe that the mice will come <br />into contact with the high-pH waters in Cemex "C" Pit. There is, however, some potential for <br />bald eagles to come into contact with the water in "C" Pit. <br />Alongg With the ESA, please be aware of thepotential application of the Miggrraatory, Bird Treaty <br />Act (MBTA? to conditions that exist in the Cemex "C' Pit. Under the MBTA, it is unlawful, <br />unless perautted by relations, to pursue, hunt, take, capture, kill or attempt to take, capture, or <br />kill any migratory bird: by any means or m any manner. The MBTA does not rreeqquire intent to be <br />proven and there is no incidental take provision Althou? absolution from liability under the <br />META is notpossible, the Service's Division of Law Enorccement and the Department of Justice <br />have used enforcement and prosecutorial discretion when-companies or individuals have made <br />efforts to avoid the unauthorized take of migratory birds. <br />According to the assessment report, the pH of water in "C" Pit is 12, and there are no physical <br />barriers to prevent migratory birds from landing in the highly alkaline waters of the pit. Birds <br />that come into contact with these waters may experience si?cant corrosive injury to exposed <br />tissues and possibly death Potential chronic effects to buds from ingestion of inorganic <br />chemicals (such as selenium) that may be concentrating in the pit water is also of concern. <br />The Service agrees with the statement on page 12 of the Wildlife Resources Assessment that <br />major mitigation efforts such as netting or other mechanisms to prevent birds from landing in the <br />pit water may be needed if a permanent, long-term solution is not developed: The Service also <br />agrees that removal of the water, and prevention of further excess accumulation of water in the <br />pit should be implemented. Until such implementation, the Service recommends, as an interim <br />measure, daily monitoring of the use of "C' Pit by migratory birds including birds protected by <br />the ESA (i.e., bald eagle. Monitoring records in the form of a logbook that includes daily <br />entries of bird use, signs of injury, and mortality should be made available for review by the