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;~ IN REPLY REFER TO ES\EC\CO Golden 65412 ~~I ~I~II~~I~~~~~ ~I~ ®~!/~~ United States Department of the Interior FISH AND WILDLIFE SERVICE °~°gi`~ ~~'°° Received Cobndo Rcld ORcc 730 Simms Srrcer. Suite 290 Golden, C°I°ndo 80401 APR 1 2 1995 APR D x V9111s Durango Field AffiCe Dlvisun of F2lioereb ~ Geology Ms. Carolyn Ann Hunter La Plata County Planning Department 1060 East Second Avenue Durango, Colorado 81301 ~ ~~e I~NGGrs(7~ ~~ b Dear Ms. Hunter: ~~ M As you requested, the Fish and Wildlife Service (Service) has contacted the Colorado Department of Minerals and Geology and the permittce regarding the proposed mining activity at the Incas Mine in La Plata County, Colorado and the occurrence of the roundtail chub (Gila ro6usta) or any Federally listed threatened or endangered fish species in the La Plata River. The roundtail chub is present in the Ia Plata River, but there are no Federally listed fish species. However, downstream in the San Juan River, endangered Colorado squawfish (Prychocheilus Lucius) and razorback sucker (Xyrauchen texanus) are present. The roundtail chub is currently a category 2 candidate species for listing as threatened or endangered. A candidate species is not legally protected under the Endangered Species Act, although, it is within the spirit of the Act to afford candidate species the same consideration. The roundtail chub is present in the La Plata River from Kline, Colorado (Cherry Creek) to the Colorado/New Mexico state line. If all discharges or releases of metals, cyanide, or sulfides (resulting in reduced pH) from the Incas Mine operation are below the Colorado State Water Quality Standards for the La Plata River, then the fish should be adequately protected. However, if these standards are exceeded, the fish could be exposed to toxic concentrations. We have not reviewed all of the permit information and therefore, the Service is not in a position to determine the adequacy of the proposed mining operations to prevent discharges or releases from the mine site into the la Plata River. The permittee should also be made aware that endangered bald eagles (Haliaeetus leucocephalus) are present along the La Plata River during winter and feed on fish, waterfowl and carrion. In addition, mine plans and operations should include measures which prevent migratory birds from being exposed to cyanide or other toxic materials. The Migratory Bird Treaty Act (MBTA) does not require intent to do harm be proven and does not allow for "take" except as permitted by regulations. Section 703 of the MBTA states that "unless and except as permitted by regulations.....it shall be unlawful at any time, by any means or in any manner, to.....take, capture, kill, attempt to take, capture, kill, or