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Home My WebLink About20100687.tiff December 30, 2005 Mr. Kim Ogle Weld County Department of AGGREGATE Planning Services 1400 North 17th Avenue INDUSTRIES Greeley, CO 80631 Re: USR-1350—Wattenberg Lakes—Conditions of Approval Dear Kim: Transmitted with this letter are final mylar plats for recording under the above-referenced USR. In addition,the following responds to conditions precedent to recording of the plats as contained in the Board of County Commissioners Resolution approving USR 1350, numbered to correspond with the Resolution: 2.A. 1) All sheets of the plat have been labeled Use by Special Review-1350. 2) Development Standards as set forth in the Resolution have been placed on Sheet 1 of the plat. 3) Access roads to the site have been delineated on Sheet 2 of the plat. 4) A site identification sign has been delineated on Sheet 2 of the plat. 5) As discussed with you during a meeting at the Planning Services office on June 23,2005, there will be no processing activity at the USR-1350 site as all material will be conveyed to processing facilities located on AmUSR905 and there will be no outside storage areas, and under these conditions a Landscape, Screen and Berm Plan will not be necessary. 6) Proposed inlet structures across Weld County Road 23.5 are delineated on Sheets 2 and 3 of the plat with a typical culvert crossing cross section appearing on Sheet 2. 7) In accordance with discussions with Don Carroll of the Public Works Department,the County Road right-of-way for Weld County Road 23.5 and Weld County Road 4.5 references are called out on Sheet 2 of the plat. Additionally,Note 2 has been added to Sheet 2 of the plat with a cross section delineating the mining limit and slurry wall setbacks from the County Road right-of-way. 2010-0687 Aggregate Industries West Central Region, Inc. Connie Nickle Davis,Land Resources /74_'7 1707 Cole Blvd., Suite 100 P.O.Box 337231,Greeley,CO 80633 ` Gold n, CO 1 ) 970-336-6526 Fax:970-378-6856 iL.Segneni?4173-485'1070 An Equal Opportunity Employer S AGGREGATE Mr.Kim Ogle,Weld County Department of Planning Services INDUSTRIES December 7,2005 Page Two 8) Agreements have been reached with mineral owners/operators Petroleum Management and Merit Energy,copies of which are enclosed herewith. Al made a diligent effort to obtain a written agreement with Ken McGee, the remaining mineral/owner operator having interests within USR-1350, prior to the County public hearings and approval of this permit. Although possible future drill sites were verbally agreed to,KM failed to respond to requests for a written agreement. These attempts are documented on the enclosed list entitled"Aggregate Industries/Kerr McGee Communications re Wattenberg". Sheet 2 of the plat delineates existing Ken McGee facilities and Aggregate Industries will maintain appropriate setbacks from such facilities in accordance with the provisions of the Construction Material Rules and Regulations of the Colorado Mined Land Reclamation Board, State Division of Minerals and Geology [Rule 6.4.19] and provide the owner/operator of existing oil and gas facilities with 24-hour per day, seven-days per week access to such facilities. Additionally, Sheet 2 of the plat has been amended to include possible future drilling sites as verbally discussed with Ken McGee. When we met on June 23,2005,you inquired if an agreement had been reached with oil and gas facility owner Calvin Petroleum identified as number 1 on the plat. The facility identified is outside USR-1350 and appears on the plat to satisfy State Division of Minerals and Geology requirements to delineate structures within 200 feet of the affected area and is not indicative of a mineral interest on the USR property. 2.B-C. Environmental Health Division of the Weld County Department of Public Health and Environment conditions have been satisfied as evidenced by an e-mail to you from Charlotte Davis, dated May 18,2005,a copy of which is enclosed. 2.D. As discussed in 2.A.5)above,there will be no processing activity at the USR-1350 site as all material will be conveyed to processing facilities located on AmUSR905 and there will be no outside storage or long-term parking areas, and under these conditions berms to mitigate the temporary impacts of mining activity to surrounding properties and adjacent road rights-of-way would not be necessary. Sheet 3 of the plat provides information relative to the post-mining reclamation of the property and additional detail is contained in Exhibit E of the DMG Regular 112 Operation Permit Application,a copy of which was submitted as part of the USR application, and within the Department of the Army Corps of Engineers 404 permit, a copy of which is enclosed herewith. 2.E-F. In accordance with discussions with Don Carroll of the Public Works Department,the County Road right-of-way for Weld County Road 23.5 and Weld County Road 4.5 references are called out on Sheet 2 of the plat. Additionally,Note 2 has been added to Sheet 2 of the plat with a cross section delineating the mining limit and slurry wall setbacks from the County Road right-of-way. 2.G-H. These two conditions are information items which Aggregate Industries hereby affirms. Connie Nickle Davis,Land Resources P.O.Box 337231,Greeley,CO 80633 970-336-6526 Fax:970-378-6856 as AGGREGATE Mr.Kim Ogle,Weld County Department of Planning Services INDUSTRIES December 7,2005 Page Three I would note that the various mine areas on the enclosed plat are labeled differently from that which appeared on the drawings submitted with the application documents. This was done to make the final plat consistent with requirements under the Corps of Engineers Section 404 permit. I believe that the above responses and the enclosed plat satisfy the conditions required for recording, however if you have any questions or require additional information,please contact me at(970)336- 6526. Upon recording,please return a copy of the plat to Aggregate Industries, addressed to my attention at: P. O. Box 337231, Greeley,CO 80633. Thank you for all of your assistance throughout the process of obtaining this permit. Very /truly yours, &Uzii Connie Nickle Davis Land Resources Assistant Enclosures cc: Aggregate Industries-WCR,Inc. -File Connie Nickle Davis,Land Resources P.O.Box 337231,Greeley,CO 80633 970-336-6526 Fax:970-378-6856 SURFACE USE AGREEMENT i This Surface Use Agreement ("Agreement") is made this day of V , 2005, and is among MERIT PARTNERS, L.P., MERIT ENTERGY PARTNERS HI,LP and MERIT ENERGY COMPANY, a Delaware corporation (collectively"Merit"), with an address of 13727 Noel Road, Suite 500,Dallas,TX 75240,and AGGREGATE INDUSTRIES-WCR,INC.,with an address of 1707 Cole Blvd., Suite 100, Golden, Colorado 80401 ("Al"). Merit and M are sometimes jointly referred to herein as the "Parties." Recitals A. AI is the current owner of a sand, gravel and aggregate mining lease covering portions of Sections 25 and 36, TIN,R67W and Section 30, TIN, R66W, 6th P.M., Weld County, Colorado ("Property"), more particularly described in Exhibit A attached hereto and incorporated herein by this reference. B. Surface ownership is subject to the rights of oil and gas leasehold estates owned by Merit, covering portions of the Property as set forth in the List of Merit Facilities attached hereto and incorporated herein by reference, marked Exhibit B; C. Al has submitted to the State of Colorado Division of Minerals&Geology("DMG") its 112 (c) Permit Application, File No. M-2004-051 and Weld County Use by Special Review Permit Application No. USR-1350 for approval of mining permits and authorizations for a sand and gravel mining and processing operation known as the "Wattenberg Lakes Project" (collectively"Mining Permit"); D. Merit currently operates oil and gas wells (Wells) and associated facilities (the Facilities)under its leasehold interests set forth in Exhibit B, the locations of which are shown on Exhibit C attached hereto and made a part hereof on portions of the Property. E. This Agreement sets forth the parties' rights and obligations regarding the relationship between the mining and future development of the Property by AI and Merit's operation of its Facilities and development of its oil and gas leasehold estate. AGREEMENT In consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: I. RESERVED 200' WELL SETBACK AREA. a. AI shall provide Merit with a flat area around Wells(the"200' Well Setback Area") for the Wells and for any operations conducted by Merit in connection with the Wells , including, but not limited to, the drilling of new wells, lease operating activities, workovers, well deepening operations, recompletions fracturing and refracturing. In no event, shall the 200' Well Setback Areas be less than a 200-foot radius surrounding the Well without the express written consent of Merit. b. Merit shall have the right to drill future wells (including horizontal and directional wells that produce from and drain the Property and lands other than the Property)at any location within the 200' Well Setback Areas. c. Subject to this Section 1 and Section 7 hereinbelow, AI shall have the right to reasonable use and occupancy of any part of the surface of the 200' Well Setback Area for the limited purposes of conducting its mining operations, provided, however, that no such use shall unreasonably hinder or interfere with Merit's operations and at no time shall Al's use of the surface of the 200' Well Setback Area cause an unsafe condition of any kind or nature for any party to this Agreement. 2. ACCESS. a. Al shall at all times provide to Merit the easements for access to the 200' Well Setback Area in the locations set forth on Exhibit C. Merit shall maintain such access roads used solely by Merit at its sole cost during the period of time that Merit conducts operations (including production of the well) on the Property using such access. b. Access to the 200' Well Setback Area may be changed by mutual agreement of AI and Merit. c. AI shall maintain and keep any access jointly used by AI and Merit in a condition and state of repair that serves the needs of AI; however, if either party to this Agreement causes damage to a road that renders the road unusable by the other party, the party causing the damage, agrees promptly to repair any damage that it caused which is a direct result of its use of the road. In the event such joint access roads need to be improved in order to serve the needs of either party to this Agreement, the parties agree to coordinate any such improvements as may be required by the party who requires the improvement, provided that any such improvements shall be at such party's sole cost and expense. Neither Merit, nor Al shall unreasonably interfere with the use by the other party of access roads. 2 d. AI agrees that it will not mine or extract any portion of the access roads set forth on Exhibit C or as mutually agreed to in writing by the Parties without the written consent of Merit. 3. BATTERIES AND EQUIPMENT (PRODUCTION FACILITIES). Merit shall have the right to continue to use production facilities for its Wells and to locate, build, repair and maintain such tanks, separators, dehydrators, compressors and other equipment reasonably appropriate for the operation and production of Wells within the 200' Facility Setback Areas shown on Exhibit C. In no event shall Al mine or extract sand and gravel closer than 75 feet from existing or relocated production facilities for aWell without the prior written consent of Merit provided, however, if Al's mining operations within 75 feet from any production facility of Merit would otherwise be within the 200' Well Setback Area, AI will, subject to the terms of Paragraph 7 of this Agreement refrain from conducting any mining operations within the 200' Well Setback Area. All areas mined within 75 feet, or closer upon prior written consent of Merit, shall be reclaimed to a minimum 3:1 slope from the agreed upon setback. 4. FLOWLINES AND PIPELINES. a. Merit will continue to use and operate the existing flowlines, to include the repair of the same as necessary, for the purposes of producing oil and gas from the Wells. Flowlines are defined as those lines that carry water or hydrocarbons from the wellhead to a production unit (such as a separator). b. Merit shall mark its flowlines at all locations reasonably requested by AI with permanent markers. If any such markers are removed or destroyed by AI, AI shall replace the same at Al's sole cost and expense. c. AI will not allow any extraction to occur, commencing at the surface of the original ground, closer than 25 feet from any flowline or pipeline of Merit without the express written consent of Merit and provided that upon completion of such extraction closer than 25 feet to a flowline, AI shall back-fill and level the area within 25 feet from any flowline or pipeline, with such areas to be reclaimed to a minimum 3:1 slope from the 25-foot setback. The foregoing does not affect or relate to the crossing of Merit's pipelines or flowlines by AI with its planned slurry wall and trench, provided that at all times Merit shall have access to its pipelines and flowlines. AI shall notify Merit at least 5 business days prior to commencing construction and trenching of its slurry wall, and shall protect Merit's pipeline and flowline during such operations. d. AI shall not allow any stockpile of soil exceeding 5 feet in depth to be placed over 3 any flowline or pipeline of Merit. e. When crossing Merit pipelines with heavy equipment, such as earth moving equipment, AI will maintain a minimum of four feet and a maximum of six feet of dirt coverage, in addition to the existing cover over the pipeline. When crossing Merit pipelines with trucks and lighter equipment, AI will maintain a minimum of two feet and a maximum of six feet of dirt coverage, to the existing cover over the pipeline. f The depth of cover over the Merit pipelines shall not be reduced or drainage over Merit's pipelines altered without Merit's written approval. g. Any utility crossing must be a minimum of 18" inches vertical separation from Merit pipelines or flowlines. The foregoing does not affect or relate to the crossing of Merit's pipelines or flowlines by AI with its planned slurry wall and french, provided that at all times Merit shall have access to its pipelines and flowlines. AI shall notify Merit at least 5 business days prior to commencing construction and trenching of its slurry wall, and shall protect Merit's pipeline and flowline during such operations. h. Parallel utilities must maintain a minimum of ten feet of separation, unless Merit grants a lesser distance of separation which grant shall not be unreasonably withheld. AI will request that all utility companies contact Merit prior to laying lines parallel to Merit pipelines. i. Construction of any permanent structure within Merit's pipeline easement is not permitted. j. Planting of trees and shrubs is not permitted on Merit's pipeline easements. k. Merit agrees that, without the prior written consent of AI, it shall not have the right to install flowlines or pipelines of any kind or nature on the Property except as provided herein and in the locations shown on Exhibit C. 5. NOTICE OF OPERATIONS. Merit will provide the notice required by the Colorado Oil and Gas Conservation Commission in terms of content and time requirements and shall provide a copy of such notice to AI. 6. COMPLIANCE WITH MSHA. 4 Each Party hereto agrees to conduct its respective operations in compliance with all applicable rules and regulations. 7. EXTRACTION IN VICINITY OF 200' WELL SETBACK AREAS; SETBACK REQUIREMENTS. a. AI shall not conduct any mining operations, construct or install any structures or improvements within the 200' Well Setback Area or within 75 feet of the existing production facility components without the prior written consent of Merit. The foregoing does not preclude AI from constructing and installing pipelines, other utilities, roads and/or its planned slurry wall within the 200' Well Setback Area as necessary and so long as none of the same unreasonably interferes with Merit's oil and gas operations as contemplated under this Agreement. Upon sending thirty(30) days written notice to Merit ("Notice"), temporary mining operations may occur within the 200' Well Setback Area up to 75 feet from the Well on a quarter circle basis ("Mined Segment"). Mining may be commenced on lands adjacent to a Mined Segment provided no more than one cumulative quarter circle segment is subject to mining operations at any one time. All Mined Segments shall be reclaimed to original grade at 95%compaction within ninety 90 days of conclusion of mining operations at the sole cost and expense of AI. The final size and configuration of the Well Setback Area to be reclaimed shall not be altered from the 200-foot radius as set forth in Paragraph 1 above without the prior written consent of Merit, which consent shall be obtained prior to commencing mining operations within the 200' Well Setback Area. Should Merit need to conduct operations on the Well while AI is conducting the temporary mining in Mined Segments and if such temporary mining unreasonably interferes with Merit's operation, AI will discontinue said temporary mining, restore any open Mining Segment and refrain from further mining within the applicable 200' Well Setback Area until Merit has concluded its operation at the applicable well. b. AI will not locate inhabited buildings within 100 feet from the outer boundary of the 200' Well Setback Area. Merit shall not locate any future wells or production facilities closer than 75 feet away from the outer boundary of the 200' Well Setback Area. Since future wells may be located as close as seventy-five (75) feet away from the outer boundary of an 200' Well Setback Area, AI waives the 150-foot setback requirement provided in Rule 603 a. (2) of the COGCC rules and regulations insofar and only insofar as subsequent development may create new surface property lines within 150 feet of 200' Well Setback Area. In the event the high density area rules become applicable to any future wells, AI also waives the high density set back requirements in Rule 603 b. of the COGCC rules and regulations. The waivers provided herein shall be binding upon the successors and 5 assigns of Al and shall benefit Merit, its successors and assigns under the existing oil and gas leasehold estate. 8. DEVELOPMENT PLANS. AI has provided herewith copies to Merit of its Exhibit C Pre-Mining/Mining Plan and Exhibit F Reclamation Plan, as included in the State Permit Application and the Weld County Use by Special Review Application (the"Plans"). Merit acknowledges receipt of said Plans and has no objections to said Plans as submitted. Further,Merit agrees that upon execution of this Agreement, it shall not oppose the Mining Permit Application and the Use by special Review Application (unless either is amended) nor shall it oppose any other surface use or surface development plan of AI if such use or plan is proposed and carried out consistent with the terms of this Agreement. AI will notify Merit in writing of any amendments to the_Mining Permit Application or the Use by Special Review Application at the time any such amendment is filed with the Division of Minerals and Geology or with the Weld County Planning Department. This acceptance by Merit and agreement to not oppose development applications in no way waives Merit's rights in this Agreement or obligations of Al under the terms of this Agreement. AI acknowledges that Merit may conduct oil and gas activities within the 200' Well Setback Area as provided herein and shall not oppose Merit before any agency or governmental proceeding if such oil and gas activities are proposed and carried out in accordance with the terms of this Agreement. 9. LIMITATION OF LIABILITY, RELEASE AND INDEMNITY. a. NO PARTY SHALL BE LIABLE FOR, OR BE REQUIRED TO PAY FOR, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES TO ANY OTHER PARTY FOR ACTIVITIES UNDERTAKEN WITHIN THE SCOPE OF THIS AGREEMENT; b. Except as to claims arising out of other provisions of this Agreement(which claims shall be governed by the terms of this Agreement), each party shall be and remain responsible for all liability arising out of those losses, claims, damages, demands, suits, causes of action, fines, penalties, expenses and liabilities, including without limitation attorneys' fees and other costs associated therewith (all of the aforesaid herein referred to collectively as "Claims"), arising out of or connected with each such party's ownership or operations on the Property, no matter when asserted, subject to applicable statutes of limitations. Each Party shall release, defend, indemnify and hold the other parties, their officers, directors, employees, successors and assigns, harmless against all such Claims. This provision does not, and shall not be construed to, create any rights in persons or entities not a party to this Agreement, nor does it create any separate rights in parties to this Agreement other than the right to be indemnified for Claims as provided herein; and 6 Upon the assignment or conveyance of a party's entire interests in the Property, that party shall be released from its indemnification obligations in Section 9.b above,for all actions or occurrences happening after the assignment or conveyance. 10. EXCLUSION FROM INDEMNITIES. The indemnities of any party herein shall not cover or include any amounts for which the indemnified party may legally recoup from other third party owners without judicial process, or that for which the indemnified party is reimbursed by any third party. The indemnities in this Agreement shall not relieve any party from any obligations to third parties. 11. NOTICE OF CLAIM FOR INDEMNIFICATION. If a Claim is asserted against a party for which another party would be liable under the provisions of Section 9 above, it is a condition precedent to the indemnifying party's obligations hereunder that the indemnified party give the indemnifying party written notice of such Claim setting forth all particulars of the Claim, as known by the indemnified party, including a copy of the Claim(if it was a written Claim). The indemnified party shall make a good faith effort to notify the indemnifying party within one month of receipt of a Claim and shall affect such notice in all events within such time as will allow the indemnifying party to defend against such Claim and no later than three calendar months after receipt of the Claim by the indemnified party. 12. REPRESENTATIONS. The parties represent to one another that each one has the fill right and authority to enter into this Agreement. Al further represents that it is the sole owner of a sand, gravel and aggregate mining lease covering the Property, and that it has full power,right and authority to enter into this Agreement and to grant the rights contemplated herein. Merit does not represent that it has rights to settle matters for the mineral owners in the Property. Merit represents that it is the sole owner of the working interest in the oil and gas lease covering the portion of the Property described on Exhibit B attached hereto from the surface to the depth of the formations currently being produced from the Wells. 13. SUCCESSORS. The terms, covenants, and conditions hereof shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns; provided, as to Merit, successors and assigns shall be deemed limited to lessees under the oil and gas lease which 7 Merit owns and as to AI, successors and assigns shall be deemed limited to lessees under the sand and gravel lease AI owns. 14. TERM. This Agreement shall become effective when it is fully executed and shall remain in full force and effect until Merit's leasehold estate expires or is terminated, and Merit has plugged and abandoned all wells and complied with the requirements of all applicable oil and gas leases pertaining to removal of equipment, reclamation, cleanup and all other applicable provisions of the leases and existing laws and regulations. When this Agreement ceases to be in full force and effect,the Parties shall execute any and all releases necessary to evidence the fact that this Agreement shall no longer apply to the Property. 15. FORCE MAJEURE. In the event either party is rendered unable by an event of Force Majeure (defined below) to perform, wholly or in part, any obligation set forth in this Agreement, other than the obligation to pay money, then the performance by the affected party will be suspended during the continuance of such event of Force Majeure. The party experiencing an event of Force Majeure shall provide reasonable notice to the other party as soon as possible with all reasonable dispatch. As used herein, the term "Force Majeure" shall mean any act of God, acts of the public enemy, blockages, insurrections, riots, epidemics, landslides, lightening,earthquakes, fires,severe weather, floods,washouts, arrests and restraints of the federal, state or local government, civil disturbances, explosions, breakage or accidents to machinery or lines of pipe, the binding order of any court of governmental authority which has been resisted in good faith by all reasonable legal means, delay in securing environmental approvals, the inability to obtain necessary supplies, material, equipment, machinery or labor and any other causes, whether of the kind herein enumerated or otherwise not within the control of the party claiming suspension and which by the exercise of due diligence such party is unable to prevent or overcome. 16. NOTICES. Any notice or other communication required or permitted under this Agreement shall be sufficient if deposited in U.S. Mail, postage prepaid, addressed to each of the following: If to Merit: Merit Energy Company 13727 Noel Road, Suite 500 Dallas, TX 75240 Attention: Fred Diem, Esq. 8 With a Copy to: Merit Energy Company 1313 Denver Avenue, Building # 3 Ft. Lupton, CO 80621 Attention: Frank Holubec If to Aggregate Industries: Aggregate Industries, WCR, Inc. 1707 Cole Blvd., Suite 100 Golden, CO 80401 Attn: Michael C. Refer With a copy to: Aggregate Industries, WCR, Inc. P.O. Box 337231 Greeley, CO 80633 Attn: Connie N. Davis Any party may, by written notice so delivered to the other parties, change the address or individual to which deliver shall thereafter be made. 17. RECORDING. This Agreement, any amendment hereto, and any release entered into pursuant to Section 14 above, shall be recorded by AI, which shall provide the other parties with a copy showing the recording information as soon as practicable thereafter. 18. ARBITRATION. Any controversy or claim arising out of or relating to this Agreement,or the breach thereof, shall be resolved by arbitration administered by the American Arbitration Association under its commercial rules, and judgment on the award rendered by the arbitrator(s)may be entered in any court having jurisdiction thereof. 19. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 9 20. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding among the parties hereto regarding the matters addressed herein, and supersedes any previous communications,representations or agreements, whether oral or written. This Agreement shall not be amended, except in written form signed by all parties. The parties have executed this Agreement on the day and year first above written. Merit Partners, L.P. Merit Energy Partners, III, L.P. Delaware limited partnerships By: Merit Energy Company Its: Fred N. Diem Vice President Agg ate Industries, WC Inc. By. , Name: l'ik,kc , '2 c? tZ Title: ? 6ZL Si ; STATE OF TEXAS ) ) ss. COUNTY OF DALLAS ) The foregoing instrument was acknowledged before me this ay of November, 2005, by Fred N. Diem, as vice president of Merit Energy Company, a Delaware corporation, as the general partner of Merit Partners, L.P. and Merit Energy Partners III, L.P., Delaware limited partnerships behalf of those partnerships. Witness my hand and official seal. 10 My commissionrires. •o" 4 n," •'�'" ". STEPHANIE LOTT i .11 5 Commisary ionEpies 1OOx s VI,?("S-47 My Commission ExOirex 10.06-OB Ubh ��n.IfpF,,,, 4 unno" STATE OF COLORADO ss. COUNTY OF is The foregoing instrument was acknowledged before me this /& day of rabezetfrexii 2005,by /)7iehctel Lz. Re/er as V?e f for Aggregate Industries WCR, Inc., a (o/phaa p corporation, on behalf of that corporation. Witness my hand and official seal. My commission expires: '//o-O 7-41/47.7.1) ., 7. Notary Public 11 • St-P-27-200F: 04:3EF FP,OY!:1=IGGRE6R E IPrEJSTpIE= 9T2-;78-58E6 -'0:132344456E4 P.2 EXHIBIT A • Legal Description A tract of land located in portions of Sections 25 and 36, Township 1 North, Range 67 West and Section 30, Township 1 North, Range 66 West of the Sixth Principal Meridian, Weld County, State of Colorado as described in the attached description. The proposed permit boundary includes approximately 421 acres. Wanenberg Lakes CMG 112 Permit Pagel E=P-2T-2005 04:ZEE' EP.CM:Pe:3R.'EGIRTE INDJSTPIES 970-.17719-52c5 -0:130344450;4 P.• WATTENBERG LEGAL DESCRIPTION Legal Description prepared for Camas Colorado front. surveys prepared by others and Epp &Associates, Inc. Those prepared by others have not been field verified. A tract of land located in portions of Section 25, 30 and 36,Township 1 North; Range 67. West of the 6th P.M., Weld County, Colorado, more particularly described as follows: Beginning at the center of said Section 25, said point being the northwest corner of the southeast quarter of said Section 25; thence along the East—West centerline of said Section 25, North 89'26'39"East 1165.74 feet; thence North 01°51'01" West 968.66 feet; thence South 89'45'40"East 238.62 feet; thence North 86'09'42"East 200.29 feet; thence South 80°23'13"East 154.12 feet; thence North 60'01'37"East 31.12 feet; thence North 43°20'26" East 107.88 feet; thence North 33°29'32"East 70,27 feet; thence North 89'30'40" East 2177.45 feet to the East line of the southwest quarter of the northwest quarter of said Section 30; thence South 00'33'07" East 1097.67 feet along said East line of said southwest quarter of the northwest quarter to the North line of the southwest quarter of said Section 30; thence South 89'25'40" West 600.24 feet along said North line of the southwest quarter of said Section 30; thence South 00'33'23"East 2651.42 feet to the South line of the southwest quarter of said Section 30; thence south 89'16'13" West 790.38 feet along the south line of the southwest quarter of said Section 30 to the southeast corner of said Section 25; thence South 89'33'35" West 1318.86 feet along the south line of the southeast quarter of said Section 25 to the northeast corner of the northwest quarter of the northeast quarter of said Section 36; thence along the East and South lines of the northwest quarter of the northeast quarter of said Section 36 the following courses: 1. South 00'34'32"East I317.38 feet; 2. South 89'34'13"West 1319.31 feet to the southeast corner of the northeast quarter of the northwest parer of said Section 36; thence South 89°44'29" West 1291.99 feet along the South line of the northeast quarter of the northwest quarter of said Section 36; thence North 28'17'37" East 225.34 feet; thence North 13°30'48" East 139.09 feet; thence North 27'57'29" West 125.99 feet; thence North 67°48'29" West 122.36 feet; thence North 00'27'49" West 72.46 feet; thence North 89°58'46" East 137.20 feet; thence North 38°02'39'West 164.39 feet; thence North 28°47'39" West 77.84 feet to the West line of the northeast quarter of the northwest quarter of said Section 36; SEP-27-2005 04:37P =ROM:RGCE;R"-E INDiJSSTPIES 970-378-6'352 -0:13034445224 P.4 thence North 00'27'49"West 553.75 feet along said West line of the northeast quarter of the northwest quarter of said Section 36 to the northwest corner of the northeast quarter of the northwest quarter of said Section 36; thence North 89'35'14"East 131 8.78 feat along the North line of said northeast quarter of the northwest quarter of said Section 36 to the southwest corner of the southeast quarter of said Section 25; thence North 3637'21"West 162.01 feet; thence North 46'16'43"West 220.88 feet; thence North 53'26'13" West 216.90 feet; thence North 63'37'31" West 158.51 feet; thence North 11.°39'08" West 112.53 feet; thence North 05'22'57" West 59.40 feet; thence North 76°14'10" West 185.65 feet; thence North 77'47'35"West 173.13 feet; thence North 03°50'54"West 137.39 feet; thence North 84°32'57"West 397.07 feet to the West line of the East half of the southwest quarter of said Section 25; thence North 00'26'32" West 1737.35 feet along the West line of said East half of the southwest quarter of said Section 25 to the northwest corner of said East half of the southwest quarter of said Section 25; thence North 89'54'08"East 548.31 feet along the North line of the East half of the southwest quarter of said Section 25; thence South 00'38'08" West 223.68 feet; thence North 89'54'08"East 208.69 feet; thence North 00'38'08"East 223.68 feet to the North line of the East half of the southwest quarter of said Section 25; thence North 89'54'08"East 561.06 feet along the North line of the East half of the southwest quarter of said Section 25 to the point of beginning, having an area of 420,834 Acres. BASIS OF BEARING Bearings are based on the West line of the southeast quarter of Section 25,Township I North,Range 67 West of the 60 P.M. which is considered to bear South 01'06'11" East. A 2 inch alloy capped monument by PLS No. 23027 being found a: the points of termination of said line. EXHIBIT B MERIT FACILITIES SECTIONS 25 AND 36,TOWNSHIP 1 NORTH, RANGE 67 WEST OF THE 6TH P.M.,WELD COUNTY,COLORADO SW '/4 Section 25 1. BRIGGS #1 —NE '% SW '/ Sec 25-TIN-R67W—PUMP,TANK, SEPARATER 2. BRIGGS AGGREGATE #I-25-SE '/ SW %Sec 25-TINR67W—PUMP,TANK NE %Section 25 3. SCHMIDT#I-25—SE '/ NE '/ Sec 25-TIN-R67W—PUMP,TANKS SE % Section 25 4. BRIGGS AGGREGATE #2-25—NW % SE '% Sec 25-TIN-R67W-PUMP 5. BRIGGS AGGREGATE 2& 3-25-SE '/ Sec 25-TIN-R67W-TANKS 6. BRIGGS AGGREGATE #3-25—SW % SE % Sec 25-TIN-R67W—PUMP NE % Section 36 7. 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IJSK�ti�I .,_,_�lAl. �i 1 '1 Y :'.• + ®/'%` ` In a - :. 1 1 y N I W e ��1 •t M I \ j rFj 1 w _ a # # # `I, t ' \`:,- t 1�, x '41" \IT`S n,/,' ' _` 1 del., '- f�r''� Zip \ r l' �a . r' � j v yti �� w., a I; l I TM""" (Q EST ,F. �M DEPARTMENT OF THE ARMY 2 CORPS OF ENGINEERS,OMAHA DISTRICT 'mss - Z]F l� 106 SOUTH 15T"STREET OMAHA NE 68102-1618 'ep ST9T[S OF PN'�P REPLY TO ATTENTION OF Regulatory Branch July 8, 2005 Mr.Mike Refer Aggregate Industries -WCR, Inc. 1707 Cole Blvd, Suite 100 Golden, CO 80401 Mr. Mike Happe,Manager • Water Resources and Treatment Division City of Westminster 4800 W. 92'd Avenue Westminster, CO 80030 Re: Department of the Army Permit No.200080189 Wattenberg Lakes Aggregate Mining Dear Ms. Gaboriau and Mr. Happe: Enclosed are three copies of proposed Department of the Army Permit No. 200080189 for the excavation and placement of fill material into the Huett Ditch,Lupton Slough, South Platte River and adjacent wetlands in connection with the construction of the Wattenberg Lakes mining and water storage facility. The project is located in an area immediately west of the South Platte River and south of the Town of Wattenberg, Sections 25 and 36,Township 1 North,Range 67 West and Section 30, Township 1 North,Range 66 West in Weld County,Colorado. Please review the general and special conditions of the permit and,if acceptable, sign and return all copies to this office. Upon receipt of all copies of the permit forms,the permit will be executed and returned to you. The permit is not valid until signed by the District Engineer or his designated representative. General Condition No. 1 of the permit establishes the time limit for completing the work. It reflects a construction period of 10 years from the end of the month of the date of issuance of the permit, expiring July 31,2015. Also enclosed is a Notification of Applicant Options (NAO) and a flow chart which explain the options available to you in your.evaluation of the enclosed permit. The Final Rule Establishing an Administrative Appeal Process for the Regulatory Program of the Corps of Engineers was issued in the Federal Register on March 9, 1999 and became effective on August 6, 1999. General Conditions 1. through 6. on the enclosed ENG Form 1721, as well as any conditions that may be specified in the attached Section 401 water quality certification, are not appealable. Printed on fir' Recycled Paper -2- If there are any questions,please can Scott Franklin at(303) 979-4120 and reference File No. 200080189. Sincerely, Russell W. 'o ef% d Chief,Regulatory Branch Enclosures Date: July 6,2005 Project: Wattenberg Lakes Aggregate Mining Applicant: Aggregate Industries -WCR, Inc. City of Westminster, Colorado Permit No: 200080189 Waterways: Huett Ditch,Lupton Slough, South Platte River and adjacent wetlands Location: The project is located in an area immediately west of the South Platte River and south of the Town of Wattenberg, Sections 25 and 36,Township 1 North,Range 67 West in Weld County, Colorado. Issuing Office: Corps of Engineers, Omaha District,Denver Regulatory Office (303-979-4120) NOTIFICATION OF APPLICANT OPTIONS (NAO) FOR PARTIES ISSUED A DEPARTMENT OF THE ARMY INDIVIDUAL PERMIT You are hereby advised that the following options are available to you in your evaluation of the enclosed permit: 1) You may sign the permit, and return it to the district engineer for final authorization. Your signature on the permit means that you accept the permit in its entirety, and waive all rights to appeal the permit, or its terms and conditions. 2) You may decline to sign the permit because you object to certain terms and conditions therein, and you may request that the permit be modified accordingly. You must outline your objections to the terms and conditions of the permit in a letter to the district engineer. Your objections must be received by the district engineer within 60 days of the date of this NAO, or you will forfeit your right to request changes to the terms and conditions of the permit. Upon receipt of your letter, the district engineer will evaluate your objections, and may: (a)modify the permit to address all of your concerns, or (b) modify the permit to address some of your objections, or (c) not modify the permit,having determined that the permit should be issued as previously written. In any of these three cases, the district engineer will send you a final permit for your reconsideration, as well a notification of appeal (NAP) form and a request for appeal(REA) form. Should you decline the final proffered permit, you can appeal the declined permit under the Corps of Engineers Administrative Appeal Process by submitting the completed RFA form to the division engineer. The RFA must be received by the division engineer within 60 days of the date of the NAP that was transmitted with the second proffered permit. 7:4 1 DirrtF l'l $C kt 4;�. s�l kF . k L � V71,' ft' fe +1c vt�t�v Cz�6`kILxkdti :VV!, .: Applicant/Agent: Aggregate Industries-WCR,Inc.and City of File Number: 200080189 Date:July 6,2005 Westminster, Colorado Attached is: See Section below INITIAL PROFFERED PERMIT(Standard Permit or Letter of permission) A X PROFFERED PERMIT(Standard Permit or Letter of permission) B PERMIT DENIAL C APPROVED JURISDICTIONAL DETERMINATION D PRELIMINARY JURISDICTIONAL DETERMINATION E w'l Fi,y a e e v ae a - va pc' uv s• e ar r v® e sv xedt. av8.zt c c®.v ev va e a o n x{ e5e°ovi9eh't4fraloev;f vv a iiio`!`l'a-tuSia alZe e ,e = t'..OIIp5te$na DnaatR -.•, ' ^�.�. a+ "f ,r.a.x r ��#'� e s . -2 +.5 A: INITIAL PROFFERED PERMIT: You may accept or object to the permit. • ACCEPT: If you received a Standard Permit,you may sign the permit document and return it to the district engineer for final authorization. If you received a Letter of Permission(LOP),you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety,and waive all rights to appeal the permit,including its terms and conditions, and approved jurisdictional determinations associated with the permit. • OBJECT: If you object to the permit(Standard or LOP)because of certain terms and conditions therein,you may request that the permit be modified accordingly. You must complete Section II of this form and return the form to the district engineer. Your objections must be received by the district engineer within 60 days of the date of this notice, or you will forfeit your right to appeal the permit in the future. Upon receipt of your letter,the district engineer will evaluate your objections and may: (a) modify the permit to address all of your concerns, (b) modify the permit to address some of your objections, or(c)not modify the permit having determined that the permit should be issued as previously written. After evaluating your objections,the district engineer will send you a proffered permit for your reconsideration, as indicated in Section B below. B: PROFFERED PERMIT: You may accept or appeal the permit • ACCEPT: If you received a Standard Permit,you may sign the permit document and return it to the district engineer for final authorization. If you received a Letter of Permission (LOP),you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit,including its terms and conditions, and approved jurisdictional determinations associated with the permit. • APPEAL: If you choose to decline the proffered permit(Standard or LOP)because of certain terms and conditions therein, you may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. C: PERMIT DENIAL: You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. D: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or provide new information. • ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the date of this notice, means that you accept the approved JD in its entirety, and waive all rights to appeal the approved JD. • APPEAL: If you disagree with the approved JD,you may appeal the approved JD under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. E: PRELIMINARY JURISDICTIONAL DETERMINATION: You do not need to respond to the Corps regarding the preliminary JD. The Preliminary JD is not appealable. If you wish,you may request an approved JD (which may be appealed),by contacting the Corps district for further instruction. Also you may provide new information for further consideration by the Corps to reevaluate the JD. SECTI0N14 t6 a-efJRt1PPEAI:bgd atwdf S.TO` I II'LIAl.PR'D FERE'D"I'EAt313T :N:i ''} .a^ E,- REASONS FOR APPEAL OR OBJECTIONS: (Dcsetibe your reasons for appealing the decision or your objections to an initial proffered permit in clear concise statements. You may attach additional information to this form to clarify where your reasons or objections are addressed in the administrative record.) ADDITIONAL INFORMATION: The appeal is limited to a review of the administrative record,the Corps memorandum for the record of the appeal conference or meeting,and any supplemental information that the review officer has determined is needed to clarify the administrative record. Neither the appellant nor the Corps may add new information or analyses to the record. However, you may provide additional information to clarify the location of information that is alread in the administrative record. .a, .+a -ea +Win.«-,; ,� PO: I a'S0F C7J t� T FO , TTY ; O&,INFORi T3ijI M If you have questions regarding this decision and/or the appeal If you wish to submit an appeal or have questions regarding the_ process you may contact: appeal process you may contact: J. Scott Franklin U.S. Army Corps of Engineers US Army Corps of Engineers Northwestern Division 9307 South Wadsworth Blvd Attn:Mores Bergman, Appeal Review Officer Littleton,CO 80128-6901 12565 West Center Road (303)979-4120 Omaha,Nebraska 68144-3869 Telephone(402) 697-2533 RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel, and any government consultants,to conduct investigations of the project site during the course of the appeal process. You will be provided a 15 day notice of any site investigation, and will have the opportunity to participate in all site investigations. Date: Telephone number: Sienature of appellant or agent. Applicant Options with Proffered Individual Permit District engineer issues individual permit to applicant. Does Applicant/Corps Yes applicant accept all sign permit,the • terms and conditions of the project is authorized. proffered permit? No • Applicant sends letter with specific objections to district engineer. The district engineer can modify the permit to remove all objectionable conditions, remove some of the objectionable conditions, or not modify the permit. The permit is returned to the applicant for reconsideration with an NAP and an RFA form. V Does the Applicant/Corps Yes applicant accept the sign permit,the terms and conditions of project is authorized. the permit? No • Applicant declines the permit.The declined individual permit is appealed by submitting a RFA to the division engineer within 60 days of the NAP(see Appendix A). Appendix B DEPARTMENT OF THE ARMY SECTION 404 PERMIT Project: Wattenberg Lakes Aggregate Mining Applicant: Aggregate Industries -WCR,Inc. City of Westminster, Colorado Permit No: 200080189 Waterways: Huett Ditch,Lupton Slough, South Platte River and adjacent wetlands Location: The project is located in an area immediately west of the South Platte River and south of the Town of Wattenberg, Sections 25 and 36,Township 1 North,Range 67 West in Weld County, Colorado. Issuing Office: Corps of Engineers, Omaha District,Denver Regulatory Office(303-979-4120) Contents: 1. General Information, Signature Blocks 2. Detailed Description of Authorized Work 3. General Conditions 4. Special Conditions 5. Figures and Attachments 1. GENERAL INFORMATION,SIGNATURE BLOCKS NOTE: The term"you" and its derivatives, as used in this permit, means the permittees or any future transferee. The term"this office"refers to the appropriate district or division office of the Corps of Engineers having jurisdiction over the permitted activity or the appropriate official of that office acting under the authority of the commanding officer. You are authorized to perform work in accordance with the terms and conditions specified below. • 1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to: ( )Section 10 of the Rivers and Harbors Act of 1899(33 U.S.C. 403). (X)Section 404 of the Clean Water Act(33 U.S.C. 1344). ( )Section 103 of the Marine Protection,Research and Sanctuaries Act of 1972(33 U.S.C. 1413). 2. Limits of this authorization. a. This permit does not obviate the need to obtain other Federal, state,or local authorizations required by law. b. This permit does not grant any property rights or exclusive privileges. c. This permit does not authorize any injury to the property or rights of others. d. This permit does not authorize interference with any existing or proposed Federal project. Section 404 Permit 200080189,Wattenberg Lakes Aggregate Mine and Water Storage,Weld County,Colorado Page Permittees:Aggregate Industries-WCR,Inc.and City of Westminster,Colorado 3. Limits of Federal Liability. In issuing this permit,the Federal Government does not assume any liability for the following: a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural causes. b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest. c. Damages to persons,property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit. d. Design or construction deficiencies associated with the permitted work. e. Damage claims associated with any future modification, suspension, or revocation of this permit. 4. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided. 5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances warrant. Circumstances that could require a reevaluation include,but are not limited to, the following: a. You fail to comply with the terms and conditions of this permit. b. The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate (See 4 above). c. Significant new information surfaces which this office did not consider in reaching the original public interest decision. Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measures ordered by this office, and if you fail to comply with such directive,this office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost. 6. Extensions. The time limit for completing the work authorized ends on July 31,2015. If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least one month before the above date is reached. Unless there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest decision, the Corps will normally give favorable consideration to a request for an extension of this time limit. Section 404 Permit 200080189,Wattenberg Lakes Aggegate Mine and Water Storage,Weld County,Colorado Page 2 Permittees:Aggregate Industries-WCR,Inc.and City of Westminster,Colorado Your signature below,as permittee, indicates that you accept and agree to comply with the terms and conditions of this permit. `/ E Aggrega us W ,Inc. Date �e W /r ity of Westminst r ate This permit becomes effective when the Federal official,designated to act for the Secretary of the Army,has signed below. Jeffrey A.Bedey a Colonel,Corps of Engineers District Engineer sell .Rochefo • Chief,Regula ch When the structures or work authorized by this permit are still in existence at the time the property is transferred,the terms and conditions of this permit will continue to be binding on the new owner(s)of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions,the transferee must sign and date below. Transferee Signature Date Transferee(Print or Type) Title Organization or Company(Print or Type) Address(Print or Type) Phone Section 404 Permit 200080189,Wattenbcrg Lakes Aggitgatc Mine and Water Storage,Weld County,Colorado Page 3 Permittees:Aggregate Industries-WCR,Inc.and City of Westminster,Colorado - - 2. DETAILED DESCRIPTION OF AUTHORIZED WORK In accordance with the terms and conditions of this Department of the Army permit,Aggregate Industries -WCR, Inc. and City of Westminster, Colorado are granted authorization by the Secretary of the Army to excavate and place fill material into the Huett Ditch,Lupton Slough, the South Platte River and adjacent wetlands in connection with the construction of an aggregate mining and water storage facility. Maps and drawings are attached. Issuance of this permit and the description of the project is based on documents submitted in the original permit application received by the Corps on March 12, 2001, and on subsequent application additions. 2.1. Location. The project is located in an area immediately west of the South Platte River and south of the Town of Wattenberg, Sections 25 and 36,Township 1 North, Range 67 West and Section 30,Township 1 North, Range 66 West in Weld County, Colorado. 2.2. Existing Conditions. The project site consists of approximately 421 acres of land adjacent to the South Platte River. Tree farming, oil and gas extraction and livestock grazing currently take place on-site. An alfalfa hay field is located on the western portion of the site. Numerous fences and electric and natural gas transmission lines cross the site and numerous oil and gas wells are located on-site. A large portion of the site is currently used as a tree farm, and this area is largely lacking well-developed native plant communities. Native grasses including wheatgrass (Agropyron spp.), switchgrass (Panicum virgatum), blue grama (Bouteloua gracilis), and buffalograss (Buchloe dactyloides) tend to dominate soils found in non-tree farm upland areas. Wetland plant communities on-site are dominated by cattail (Typha spp.), saltgrass (Distichlis spicata), and bulrush(Sciipus spp.). A grazed cottonwood (Populus deltoides) stand is located near the South Platte River. 2.3. Description of Work. The applicant will excavate aggregate and construct water storage reservoirs in the area. Sand and gravel deposits will be either wet or dry-mined, and conveyors will be installed to transport the material across the South Platte River to an existing processing facility near County Road 6. The site will be reclaimed as mining proceeds and will eventually become water storage reservoirs, conservation areas, and wetland mitigation areas. 2.4. Jurisdiction. Jurisdictional waters of the US under Section 404 are located at the following locations: • In or adjacent to Huett Ditch, which has a surface connection to Lupton Bottom Ditch which connects to Big Dry Creek, a tributary of the South Platte River. • In or adjacent to Lupton Slough, which has a surface connection to Big Dry Creek, a tributary of the South Platte River. • In or adjacent to the South Platte River, an interstate water of the US. Section 404 Permit 200080189,Wattenberg Lakes Aggregate Mine and Water Storage,Weld County,Colorado Page 4 Permittees:Aggregate Industries-WCR,Inc.and City of Westminster,Colorado 2.5. Purpose and Need. 2.5.1. Basic Project Purpose. For purposes of definition under Section 404, the basic project purpose is to mine gravel and create water storage. 2.5.2. Overall Project Purpose. The overall project purpose is to mine gravel in alluvial deposits in an economically viable manner on available lands nearest to commercial demand and to construct water storage facilities that will be compatible in location, volume and timing with the City of Westminster's needs. 2.5.3. Need for the Project. Aggregates are needed to support the infrastructure of, and water storage cells are needed to support the population of, the growing Denver metropolitan area. 2.6. Impacts and Mitigation. Impacts to jurisdictional wetlands will be 28.64 acres. Mitigation will be 35.69 acres, constructed either prior to or concurrent within three years of impacts, as shown in Table 1 and Fig 2. The impacted portion of Huett Ditch will be re-located to the east of proposed Pond 3 and will be constructed to re-create the form and function of the existing ditch. The general goal is to replace lost riparian functions associated with the existing ditch, especially areas of high function. Re-establishment of a wetland channel with varied flow, gradual banks and native vegetation is anticipated to yield the desired functional results and will more closely mimic a typical riparian corridor as would be expected in this geographic area without heavy grazing. Mitigation for the Lupton Slough wetland impacts will occur within Mine Areas 2 and 3 as shown in Fig. 2. The impacts to slough wetlands are largely to the saltgrass/wet meadow cover type. Accordingly, the goal of this mitigation is to re-create the functions of the existing saltgrass/wet meadow wetlands. Maintenance of sub- surface hydrology and establishment of a native plant community appropriate to the area is anticipated to achieve the desired functional results. Water supply for project areas will be as follows: • MA 2 and MA 3 will be hydrated by groundwater. • Flows from a head-gated water ski lake to the south of the project and/or groundwater will supply water to Huett Ditch. • All wetland mitigation areas will be located in proximity to the open water reservoirs, and will provide terrestrial habitat in proximity to the created lacustrine areas (reservoirs). • Lupton Slough wetland mitigation will be located in proximity to non-impacted portions of the Lupton Slough to maintain a hydrological connection. Vegetation from the saltgrass/wet meadow areas of the Lupton Slough will be harvested and planted within MA 2 and MA 3 as indicated in Table 1 and Fig 2. Lupton Slough mitigation at MA 2 and 3 will be seeded with saltgrass meadow species. Relocated Huett Ditch will be seeded with both wet meadow species and tall emergent species. A wetland ecologist will determine areas appropriate for each seed mix once the new channel is constructed. In general, the Section 404 Permit 200080189,Wanenberg Lakes Aggregate Mine and Water Storage,Weld County,Colorado Page 5 Pernittees:Aggregate Industries-WCR,Inc.and City of Westminster,Colorado • wet meadow species will be seeded along the banks and the intermittently saturated portions of the channel. The tall emergent species will be seeded within the areas of shallow inundation and/or slow moving water. Deeper, open water phases of the new Huett Ditch will not be seeded. Plains cottonwood (Populus deltoides) will be established along the eastern side of the relocated Huett Ditch, on the backfilled MA 1 area, and within the upland areas between Ponds 2 and 3. Tree and shrub replacement will only occur in the areas indicated on the plans as dictated by the amount of trees and shrubs impacted by the project. The applicant will establish young cottonwood seedlings between Ponds 2 and 3 and/or along the new Huett Ditch early on in the project. The intent of this is to allow these seedlings a number of years to develop into cottonwoods of suitable size to mitigate for impacts to existing trees. Planting of more mature cottonwoods as will occur as needed to supplement the natural cottonwood establishment. Mitigation areas will be seeded with the following native species: Wet meadow Tall Emergent Saltgrass Meadow Willow Shrub Cottonwood Spartina pectinata Beckmannia syzigachne Distichlis spicata Salix exigua Populus deltoides Juncus spp. Sagittaria latifolia Spartina pectinate Schoenoplectus spp. Sparganium eurycarpum Spartina gracilis Salix amygdaloides Panicum virgatum Scirpus spp. Juncus spp. Eleocharis palustris Schoenoplectus spp. Panicum virgatum Carex spp. Muhlenberghia asperifolia Sporobolus airoides Elevations for Huett Ditch, MA 2 and MA3 wetlands will be determined from baseline groundwater data. The bottom elevation of MA 2 and MA 3, and wet meadow vegetation along the border of the Huett Ditch is designed to result in groundwater saturation within the upper 12 inches of the soil. The open water and tall emergent zones of the relocated Huett Ditch will be constructed so that shallow inundation occurs for a larger part of the growing season. Wet meadow areas will typically be constructed to obtain early season saturation in the upper 1 foot of the soil, while tall emergent areas will typically be constructed to obtain early season, shallow inundation with later season saturation. Areas slated for cottonwood and willow planting will be constructed to obtain early season flooding or saturation, without prolonged inundation, as these species will not survive in areas of prolonged ponding. Section 404 Permit 200080189,Wattenberg Lakes Aggregate Mine and Water Storage,Weld County,Colorado Page 6 Permit-tees:Aggregate Industries-WCR,Inc.and City of Westminster,Colorado 3. GENERAL CONDITIONS 1. The time limit for completing the work authorized ends on July 31,2015. If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least one month before the above date is reached. 2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area. 3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by this permit,you must immediately notify this office of what you have found. We will initiate the Federal and state coordination required to determine if the remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 4. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization. 5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached if it contains such conditions. 6. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished in accordance with the terms and conditions of your permit. 7. All construction debris will be disposed of on land in such a manner that it cannot enter a waterway or wetland. 8. Equipment for handling and conveying materials during construction shall be operated to prevent dumping or spilling the materials into the water except as approved herein. 9. Care will be taken to prevent any petroleum products, chemicals, or other deleterious materials from entering the water. 10. Steps will be taken to prevent materials spilled or stored on shore from washing into the water as a result of cleanup activities,natural runoff, flooding, and that, during construction,any materials which are accidentally spilled into the water will be retrieved. 11. All work in the waterway will be performed in such a manner so as to minimize increases in suspended solids and turbidity which may degrade water quality and damage aquatic life outside the immediate area of operation. 12. All areas along the bank disturbed or newly created by the construction activity will be seeded with vegetation indigenous to the area for protection against subsequent erosion. 13. The clearing of vegetation will be limited to that which is absolutely necessary for construction of the project. 14. Close coordination will be maintained by the contractor with downstream water users, advising them of any water Section 404 Permit 200080189,Wattenberg Lakes Aggregate Mine and Water Storage,Weld County,Colorado Page 7 Permittees:Aggregate Industries-WCR,Inc.and City of Westminster,Colorado quality changes to be caused by the construction. 15. All dredged or excavated materials, with the exception of that authorized herein, will be placed on an upland site above the ordinary high water line in a confined area,not classified as a wetland,to prevent the return of such materials to the waterway. 16. Deposition of excavated materials on shore and all earthwork operations on shore will be carried out in such a way that sediment runoff and soil erosion to the water are controlled. 17. Adequate pipes shall be installed in any temporary crossing to carry normal flows and prevent the restriction of expected high flows during construction. 18. Concrete trucks will be washed at a site and in such a manner that washwater cannot enter the waterway. 19. The use of machinery in the waterway will be kept to a minimum. 20. When the District Engineer has been notified that a filling activity is adversely affecting fish or wildlife resources or the harvest thereof and the District Engineer subsequently directs remedial measures, the permittees will comply with such directions as may be received to suspend or modify the activity to the extent necessary to mitigate or eliminate the adverse effect as required. 21. Fuel storage tanks above ground shall be diked or curbed or other suitable means provided to prevent the spread of liquids in case of leakage in the tanks or piping. Section 404 Permit 200080189,Wartenberg Lakes Aggregate Mine and Water Storage,Weld County,Colorado Page 8 Permittees:Aggregate Industries-WCR,Inc.and City of Westminster,Colorado 4. SPECIAL CONDITIONS A. All reports or correspondence required under these special conditions shall include the following information: Project: Wattenberg Lakes Aggregate Mining, Weld County, Colorado Corps Permit No: 200080189 Applicant: Aggregate Industries -WCR, Inc. and City of Westminster, Colorado Expiration Date: July 31, 2015 and shall be sent to: US Army Corps of Engineers Denver Regulatory Office 9307 S. Wadsworth Blvd. Littleton, CO 80128-6901 B. The Colorado Department of Health issued Water Quality Certification Number 4021 on July 13, 2004 in accordance with Section 401 of the Clean Water Act. The permittees agree to comply with Certification Number 4021, the requirements from which are attached to, and made a part of, this permit. The water quality certification is shown on Attachment 1. C. The permittees agree to contact the FWS, Office of Migratory Birds, at (303) 236-8171,for permitting requirements dealing with the removal of any migratory bird nest. D. The attached U.S. Fish and Wildlife Service(FWS)Biological Opinion (BO) No. ES/LK-6-CO-04-F-031, dated May 9, 2005, together with the attached letter from FWS dated April 21, 2005, contains mandatory terms and conditions to implement the reasonable and prudent measures that are associated with "incidental take" that is also specified in the BO. D.1. Your authorization under this Corps permit is conditional upon your compliance with all of the mandatory terms and conditions associated with incidental take of the attached BO, which terms and conditions are incorporated by reference in this permit. Failure to comply with the terms and conditions associated with incidental take of the BO, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute noncompliance with your Corps permit. The FWS is the appropriate authority to determine compliance with the terms and conditions of its BO, and with the ESA. D.2. The BO contains recommended reasonable and prudent alternatives to allow aggregate mining,reclamation and water storage operations, and associated depletions to the South Platte River, to proceed in compliance with the requirements of the Endangered Species Act. These conditions are based upon the establishment of a Platte River Recovery Implementation Program designed to meet the needs of the federally listed threatened and endangered species that use the Platte River. Permittees shall comply with the Interim Measures specified in the biological opinion, which measures require annual financial contributions payable to the National Fish and Wildlife Foundation during the Interim Period between issuance of this Permit and when a Program is in place. This Permit will also cover ongoing Project depletions following the Interim Period for so long as the Program is being implemented and the Permittee(s) continue to participate in the Program and fulfill the obligations required of Program participants. D.3. No operations in Phase 3/Pond 2 and Mining Area 2 are approved within the buffer zone without Corps of Engineers and Fish and Wildlife Service review of the applicant's ability to protect bald eagles and their nests adjacent to Phase3 operations, consistent with provisions of the Endangered Species Act, the Bald and Golden Eagle Protection Act, and the Migratory Bird Treaty Act. Section 404 Permit 200080189,Wattenberg Lakes Aggregate Mine and Water Storage,Weld County,Colorado Page 9 Permittees:Aggegate Industries-WCR,Inc.and City of Westminster,Colorado E. The permittees agree that,prior to any impacts to waters of the US authorized by this permit, an aerial photo showing pre-project, baseline conditions to include the entire project site and the area circumventing the property at least 300 feet out from the Wattenberg Lakes project boundary, will be submitted to and approved by the Corps. Upon completion of the project, a post-construction aerial photo of the project site, taken from the same general perspective as the pre-project photo, will be submitted to and approved by the Corps. F. The permittees agree that photo documentation will be made of trees not directly impacted by the permittees' operation within and adjacent to the project boundaries as follows: E1. Landscape Photos. Prior to any impacts to waters of the US authorized by this permit, photos will be taken of trees lying outside proposed areas of disturbance including trees in areas immediately adjacent to and visible from the Wattenberg Lakes project boundary. A plan view photo point map of the project will be constructed showing the photo points. Similar photos will be taken from the same photo point annually and, along with the photo point map, submitted to the Corps as part of the Annual Mitigation Progress Reports discussed in Special Condition S. F.2. If any trees on the project site and the area circumventing the property at least 300 feet out from the Wattenberg Lakes project boundary either die or appear to be dying during the duration of this permit, and such condition is determined to be the result of permittees' operations as noted below in G.5.,remediation will be accomplished to restore or replace the trees, as approved by the Corps. G. The permittees agree to monitor and evaluate local groundwater elevations in order to determine changes, if any, in groundwater hydrodynamics during the process of mining and reclamation, and to better mitigate changes. Groundwater monitoring and evaluation will be as follows: G.1. Groundwater monitoring will be conducted prior to any excavation connected with the mining, at least twice per year during the growing season (April 1 to October 31) and shall continue until the completion of all conditions of this permit. G.2. Groundwater elevation data will be collected at the locations on the Groundwater Monitoring Plan Well Location Map (Fig. 3). G.3.Prior to any excavation connected with the mining, a baseline groundwater evaluation report will be prepared and submitted to the Corps indicating the pre-excavation historic groundwater levels and gradient across the project area and at project boundaries. G.4. Annual groundwater evaluation reports will be prepared and submitted to the Corps along with the annual mitigation progress reports described in Special Condition S. Reports will include groundwater elevation and flow pattern interpretations at each well location, and charts of cumulative seasonal and annual elevations. Changes in groundwater elevations will be identified and interpreted. G.5. In the event that unacceptable changes, as determined by the Corps, are observed in groundwater elevations, the permittees will evaluate the significance of the changes and, if necessary, propose mitigation that addresses the changes. Changes in measured groundwater elevations will be evaluated based on natural groundwater fluctuations and changes in non-project related local conditions including precipitation, river flows and land use. The evaluation will also identify potential impacts associated with changes in groundwater hydrodynamics. The intent is that any potential interim and long-term mitigation action will be taken in a time frame that salvages plant life in the wetlands and adjacent trees that rely on historic water levels for survival. Mitigation solutions will be approved by the Corps. H. The permittees agree that, during construction and establishment of new Huett Ditch, the existing Huett Ditch will rely on the same sources of historical water as it has in the recent past, and no prior-existing sources of water will be diverted. This condition is required to allow existing vegetation at Huett Ditch to continue to thrive during construction of the new Huett Ditch. During construction and establishment of the new Huett Ditch, water will be supplied from a combination of groundwater and water from the dewatering of mining cells. After the new Huett Ditch has established adequate vegetation and is approved by the Corps, water from the existing Huett Ditch will be permanently channeled to the new Huett Ditch, relying on the same historical sources of water. - Section 404 Permit 200080189,Wattenberg Lakes Aggregate Mine and Water Storage,Weld County,Colorado Page 10 Penmuees:Aggregate Industries-WCR,Inc.and City of Westminster,Colorado I. The permittees agree that, during the life of the project, local property owners will have access to their property. Local property access roads, impacted by operations for which this permit is issued, will be maintained to at least their pre-project condition (accessible by standard passenger vehicle) and will be available for use at any time by the appropriate local property owner. J. The permittees agree that all restoration of temporary impacts to waters of the US will be permanent and will be evaluated and monitored in a manner similar to permanent impacts. K. The permittees agree that, upon completion of the mining, conservation easements or deed restrictions will be prepared and placed on all non-pond slough areas, the remnant oxbow east of MA 3, all mitigation areas and the area between Pond 3 and the South Platte River. A copy of the draft conservation easement or deed restriction will be submitted to the Corps for review and approval prior to final verification by the Corps that the wetland mitigation areas are viable and self-sustaining. L. The permittees agree to perform the required wetland mitigation as outlined by the mitigation plan in Section 2.6., Table 1 and Fig. 2. M. The permittees agree that a professional ecologist approved by the Corps will oversee the mitigation. N. The permittees agree that there will be no mowing, spraying or other detrimental maintenance of the mitigation areas except that which is required for control of weeds. O. The permittees agree that, once the mitigation areas have been constructed and planted, proper precautions will be taken to prevent domestic animals and human activity from adversely affecting them. No grazing will be allowed on any reclaimed area. P. The permittees agree that wetland mitigation will be considered successful and self-sustaining when the following conditions have been met without intervention in the form of irrigation,removal of undesirable vegetation or replanting of desirable vegetation for a three(3)consecutive year period: P.1. At least 80 % of the mitigation site is vegetated, at least 50 % of species will consist of species rated as facultative or wetter and at least 50 % of the herbaceous vegetation is representative of what was planted. P.2. Trees and shrubs, to include volunteer specimens, will have a survival rate of at least 85%. Species composition shall be representative of species planted. P.3. Those species listed on the Colorado Weed Inventory List (A, B, and C) shall be limited to 10% or less of the total cover. The list can be found at http•//www ag state.cn us1DPT/weeds/ctatntec/weedntlec pdf. P.4. Saturated soils shall be present, for a sufficient time period to support wetland vegetation, to within 3 inches of the surface in emergent communities and within 18 inches of the surface in saturated communities, measured during the growing season using a soil moisture probe. Q. The permittees agree that if, during the first three years after initial implementation of mitigation, the site conditions indicate that the success criteria are not likely to be achieved, remedial efforts will be undertaken after consultation with the Corps of Engineers. R. The permittees agree that the mitigated wetlands,trees and shrubs will be monitored by the permittees each year beginning in 2006 until the Corps of Engineers determines them to be viable and self-sustaining. S. The permittees agree to submit an Annual Report to the Corps before December 31 of each year beginning in 2006. These reports will include but not be limited to: S.1. permit number and county where the project is located; Seebon 404 Permit 200080189,Wattenberg Lakes Aggregate Mine and Water Storage,Weld County,Colorado Page 11 Pemrittees:Aggregate Industries-WCR,Inc.and City of Westminster,Colorado S.2. a discussion of successes,failures, and problems associated with the required mitigation; S.3. percent of mitigation area ground surface that is vegetated,percent of the vegetated area that contains wetland species, list of prevalent plant species; S.4. maps, and drawings as needed for illustration; and S.5. photographs of mitigation area(to be taken from the same location each year and submitted with each report). S.6. Groundwater evaluations as required by Special Condition G of this permit including but not limited to the following: S.6.1. Groundwater elevation and flow patterns S.6.2. Discussion and conclusions from data evaluation S.6.3. Discussion of any interim mitigation action taken S.6.4. Discussion of any proposed final mitigation action S.7. Each of the Special Conditions of this Permit will be restated in order in the report, and an explanation of compliance will follow each Special Condition. S.8. Copies of the annual report will be sent to the following three local property owners: • Denis B. Clanahan, Trustee, 600 17'" St., Suite 2700 S,Denver, CO 80202-3725 • Nolan Hussey, 1058 County Rd 23 'h, Brighton, CO 80603 • Peter Baurer, 754 Weld County Rd 23 ' , Brighton, CO 80603 T. The permittees agree that, upon completion of the project, the permittees shall submit as-built drawings of the mitigation areas and completed As-Built Certification Forms (copy attached) to the Corps. Drawing requirements are as follows: T.1. The drawings and Certification Form are to be submitted within 90 days of completion of the work. T.2. The drawings and Certification Form must be signed and sealed by a professional engineer or surveyor. T.3. In the event that the completed work deviates from the approved permit drawings and special conditions, the permittees shall describe, on the Certification Form, the deviations between the work authorized by the permit and the work as constructed. A blank form is attached. T.4. The drawings shall include permit number, location of the work, and clear indication of any deviations which have been described on the As-Built Certification Form. U. After a detailed and careful review of all of the conditions contained in this permit, the permittees acknowledge that, although said conditions were required by the Corps of Engineers,nonetheless the permittees agree to those conditions voluntarily to facilitate issuance of the permit and that the permittees will comply fully with all the terms of all the permit conditions. Section 404 Permit 200080189,Wattenberg Lakes Aggregate Mine and Water Storage,Weld County,Colorado Page 12 Perrnittees:Aggegate Industries-WCR,Inc.and City of Westminster,Colorado US Army Corps of Engineers Section 404 Permit As-Built Certification Form Project: Wattenberg Lakes Aggregate Mining Applicant: Aggregate Industries -WCR, Inc. and City of Westminster, Colorado Permit No: 200080189 . Waterways: Huett Ditch,Lupton Slough, South Platte River and adjacent wetlands Location: The project is located in an area immediately west of the South Platte River and south of the Town of Wattenberg, Sections 25 and 36,Township 1 North,Range 67 West in Weld County, Colorado. Issuing Office: Corps of Engineers,Omaha District,Denver Regulatory Office(303-979-4120) Submit this form and one set of 8t/ x 11-inch as-built engineering drawings to: US Army Corps of Engineers Denver Regulatory Office 9307 S.Wadsworth Blvd. Littleton, CO 80128-6901 303-979-4120. Describe deviations from the approved permit drawings and special conditions on additional pages. I hereby certify that mitigation required by Special Conditions has been accomplished in accordance with the Department of the Army Permit 200080189 with any deviations noted below. I have enclosed one set of as-built engineering drawings of the mitigation area. 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City of Westminster, Colorado Corps File No. 200080189 Attachment 1 Section 401 Water Quality Certification Page 1 of 1 Davis, Connie From: Charlotte Davis[cdavis@co.weld.co.us] Sent: Wednesday, May 18, 2005 8:33 AM To: Kim Ogle Cc: Davis, Connie Subject: USR-1350 Kim, I am receipt of a letter from Connie Davis, representative for Aggregate Industries, regarding 2 health conditions for USR-1350. The following is my response: Condition 2.B. The septic system that is tied to the house will be vacated on June 15th, 2005. At that time, Aggregate will disconnect the plumbing to the house and contact the County Building Inspection Department for verification of disconnection. When the house and septic system are removed the applicant will notify the Health Department in writing. This condition has been addressed to our satisfaction, is resolved and can be removed. Condition 2.C. Adequate water. Bottled water will be provided to employees and visitors to the site. This condition has been addressed, is resolved and can be removed. All Health related conditions have been addressed and resolved. Char • 5/18/2005 FISH&WILDLIFE �QPP`L ye/jtet United States Department of the Interior SERVICE FISH AND WILDLIFE SERVICE = p9 Mountain-Prairie Region ',,� ` IN REPLY REFER TO. FWS R6 MAILING ADDRESS: STREET LOCATION: P.O. Box 25486, DFC 134 Union Blvd. ES Denver, Colorado 80225-0486 Lakewood, Colorado 80228-1807 ES/LK-6-CO-04-F-03 I MAY 0 9 2005 Mr. Timothy Carey (43'4667._ fjr Denver Regulatory Office v 97; w Ge U.S. Army Corps of Engineers C'D� p 9307 S. Wadsworth Boulevard c& Littleton, Colorado 80218-6901 c�� Dear Mr. Carey: ateteetZtt This document transmits the U.S. Fish and Wildlife Service's (Service)biological opinion based on our review of the proposed action and its effects on federally listed and endangered and threatened species in Colorado and Nebraska, in accordance with section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.). The U.S. Army Corps of Engineers (Corps)proposes to authorize the Wattenberg Lakes Aggregate Mine Project (Project), pursuant to section 404 of the Clean Water Act. Your August 12, 2004, request for formal consultation was received on August 16, 2004. This opinion is provided to you as the lead Federal agency with responsibilities for consultation on this project, per section 7 of the ESA. We have incorporated a reasonable and prudent alternative that should be included as a condition of any permit or funding agreement issued to the two applicants for this Project. This biological opinion is based on information that accompanied your June 29, 2004, and August 12, 2004, requests for informal and formal consultation,respectively, including the Biological Assessment (BA) (Corps 2004a) and supplemental BA information (Corps 2004b). Your April 13, 2005, letter and the March 24, 2005, supplemental BA (Corps 2005) for project effects to bald eagles in Colorado were addressed in our letter to you dated April 21, 2005. We concur with your determination that the project, as described, is likely to adversely affect the following species downstream of the project area in Nebraska--the piping plover(Charadrius melodus), least tern (Sterna antillarum), pallid sturgeon (Scaphirhynchus atbus), whooping crane (Grus americana), bald eagle (Haliaeetus leucocephalus), and the western prairie fringed orchid (Platanthera praeclara). In addition, the Service concludes that designated critical habitat for the whooping crane and the northern Great Plains breeding population of the piping plover would be adversely affected by the Project. Mr. Timothy Carey 2 The Corps also determined in the August 12, 2004, letter that no other threatened or endangered species, either currently listed or proposed for listing, would be affected by this project. However, in your April 13, 2005, letter you revised the no effect determination for bald eagles in Colorado to not likely to adversely affect, a determination that the Service concurred with in our April 21, 2005, letter. The Service does not concur with your no effect determination for the Ute ladies'-tresses orchid (Spiranthes diluvialis), Colorado butterfly plant(Gaura neomexicana ssp. coloradensis), and Preble's meadow jumping mouse (Zapus hudsonius preblei). Published and ongoing research on the Ute ladies'-tresses orchid, Colorado butterfly plant, and Preble's meadow jumping mouse, their habitats, and the hydrology of areas occupied by and adjacent to these species, suggests that stream depletions may adversely affect these species. Depletions may alter the timing of naturally occurring flow regimes, alter riparian habitats, and lower the water table supporting floodplain populations of these species downstream of proposed projects. However, available information so far is insufficient to ascertain to what degree streamflow depletions and change in timing of the natural flow regime may impact the Ute ladies'-tresses orchid, Colorado butterfly plant, and Preble's meadow jumping mouse; while we believe there may be project impacts, we do not have enough information to conclude that these impacts will adversely affect these species. Therefore,the Service believes that the proposed project is not likely to adversely affect the Ute ladies'-tresses orchid, Colorado butterfly plant, or Preble's meadow jumping mouse. We have concluded that the project would not affect the Eskimo curlew. Although once abundant throughout its range, the Eskimo curlew is now among the rarest bird species in the Western Hemisphere (Faanes and Senner 1991). Historically, the Eskimo curlew used wet meadow habitats in the Platte basin while on migration through North America(Gollop et al. 1986). However, we no longer expect Eskimo curlews to occur within the action area because they have not been detected in over 14 years. The most recent record of a curlew in Nebraska (Faanes 1990) was of a single bird foraging with other shorebird species in a wet meadow on the Mormon Island Crane Meadows Preserve near Grand Island, Nebraska. Because no Eskimo curlews are expected to occur within the action area, we do not anticipate that the project would affect the Eskimo curlew. Consequently, effects to the Eskimo curlew are not addressed further in this biological opinion. However, should new information emerge that curlews have returned to the action area, reinitiation of this consultation would be required (see the Reinitiation and Closing Statement section below). CONSULTATION HISTORY On November 19, 2003,the Service met with the Corps, Aggregate Industries—WCR, Inc. (Aggregate Industries), and a representative for the City of Westminster(Westminster) to initiate discussion about the proposed project including--water rights, water use, and potential water depletions; federally listed species potentially affected by the proposed project; and contents of a BA. In January, March,and July 2004, the Service continued project discussions with the Corps, Aggregate Industries, Westminster, and the South Adams County Water and Sanitation District (SACWSD). The Corps submitted a letter dated June 29, 2004, requesting informal consultation and our concurrence/non-concurrence with their determination of not likely to adversely affect the listed species in Nebraska from the proposed project; and a BA entitled "Wattenberg Lakes Project." In a letter dated August 5, 2004, the Service did not concur with the Corp's Mr. Timothy Carey determination and recommended that they initiate formal consultation. We received a letter from the Corps requesting initiation of formal consultation on August 16, 2004. Supplemental BA information was requested by the Service to address deficiencies in the August 12, 2004, submittal. This information was received on August 31, 2004, and September 7, 2004. We received a supplemental BA for new effects to bald eagles in Colorado and a revised effects determination in a letter from you on April 13, 2005. We analyzed information provided by you concerning potential direct and indirect impacts on federally listed species on and near the Project site, as well as impacts to species downstream in Colorado and Nebraska resulting from alteration of Platte River hydrology. BIOLOGICAL OPINION DESCRIPTION OF THE PROPOSED ACTION The Corps proposes to provide authorization to--Aggregate Industries to mine alluvial sand and gravel for approximately 10 years and reclaim the site; and Westminster and SACWSD to subsequently operate as three water storage facilities in Weld County, Colorado. Aggregate Industries, designated as Applicant 1 in this opinion,would dry mine South Platte River primary alluvial terrace deposits in several mining cells. Upon completion of mining and reclamation activities, lined water storage facilities with a total storage capacity of approximately 4,000 acre-feet(af) and related inlet and outlet works would remain on the property. Westminster, designated as Applicant 2 in this opinion, and SACWSD would own and operate the water storage facilities following completion of mining and reclamation activities on the property. The water storage facilities would be used to store water for later release to the South Platte River for municipal purposes. Based on the Corp's calculations, up to 49.1 af per year of continuing historic depletions from the South Platte River system would result from the proposed project during the estimated first 10 years of mining activities; and 793 af per year of historic depletions during the subsequent 20 years of post-mining water storage operations. The following description of the project was taken from the BA and supplemental BA information submitted by the Corps. The Wattenberg Lakes project site, approximately 420 acres in size, is located south of the Town of Wattenberg, Colorado, between the South Platte River and Weld County Road 23. The topography of the project site is predominantly flat, though gently sloping to the east toward the South Platte River. Over time the site has been physically altered for stock ponds, growing crops, realigning surface water drainageways, and limited backfilling for berms and roadways. All soil types at the project site are derived from alluvial sources. Native vegetation of the site is largely based on proximity to surface and subsurface water, such as native grasses prevailing in the more xeric areas; cattails dominating a large swale through the middle of the site; and other species such as spikerush,tule, and three square dominating the Huett Ditch drainageway. Cottonwood riparian woodlands are located in the riparian zone immediately adjacent to the South Platte River. Current uses of the site include tree farming, oil and gas extraction, and livestock grazing. Mr. Timothy Carey 4 Sand and gravel deposits would be dry mined through the use of dewatering trenches and pumps. Clean groundwater from the pits would be discharged to the South Platte River. The mined material would be transported across the South Platte to an existing processing facility off County Road 6. The reclaimed use of the site would be water storage and associated inlet and outlet works structures. The water storage facilities would be sealed from groundwater by a slurry wall. Reclamation of the site would occur as mining proceeds. Process fines would be separated from aggregate and allowed to settle in mined gravel cells on the Wattenberg Lakes site and on the Platte Valley site. As part of the reclamation and wetland mitigation plan, Aggregate Industries also plans to plant areas of cottonwood trees to expand and repopulate senescent cottonwood stands along the South Platte River and replace individual trees removed during excavations. Consumptive uses of groundwater tributary to the South Platte River during the mining phase include evaporation from groundwater exposed to the air, water used for dust control, and water retained in material hauled off site. The associated depletions, estimated at 49.1 af per year, would be replaced by an existing substitute supply plan approved by the State; the plan would be renewed on an annual basis. Subsequent renewals of the plan would address any changes in the mining operation as they relate to water use at the site. Aggregate Industries currently owns 4/14 share in the Brighton Ditch and leases an additional 1.037 shares from Westminster. Collectively, these water rights provide sufficient consumptive use water to cover Aggregate Industries' depletions during the summer months. A lease agreement between Aggregate Industries and Westminster provides for the delivery of 2.0 cubic feet per second (cfs) of daily, fully consumable effluent from November 10 to March 20, or 515.70 af annually. A lease agreement between Aggregate Industries and Silver Heights Water and Sanitation District provides for the delivery of 35 af per year, or 2.91 af per month. This water is attributable to fully consumable return flows from the municipal use of non-tributary groundwater. Post-mining depletions would result from future operation of the site as a water storage facility by Westminster and SACWSD. Post-mining depletions would take several years to develop as Westminster and SACSWD uses increase over time,to a total of 793 af per year for full use of the storage facilities. Westminster has contracted to purchase the water storage created at the site. Of the total proposed water storage capacity, Westminster has assigned 1,200 af to SACWSD. Westminster would operate the remaining, approximate 2,800 af of the total storage of the Wattenberg Lakes facilities. The storage would be used to capture water belonging to Westminster and regulated in the facilities for exchanges or otherwise released to the South Platte River to meet return flow, or other flow, obligations. Westminster's share of the water stored in the facility would be limited to former irrigation water rights that have been, or will be, the subject of change of water rights proceedings quantifying the historical consumptive use associated with the water right or other senior water rights that are or will be decreed fully consumable (the "Senior Water"). Since only Senior Water would be stored in the facility, no new depletions would occur as a result of the facility's construction. The majority of the Senior Water stored in the facility would be diverted in the form of fully Mr. Timothy Carey 5 consumable treated effluent. Historic depletions associated with Westminster's share of stored water, including evaporative losses and depletive uses made possible by water storage at this site, are estimated at 686 af per year. The water that SACWSD would store in the facility would be historic depletion credits from irrigation water rights changed in Case No. 2001 CW258. The changed water would be fully consumable water derived from historic irrigation depletions, or Senior Water,under the Burlington Ditch Land and Reservoir Company, Wellington Reservoir Company, Fulton Irrigation Ditch Company, Brighton Ditch Company, and the Lupton Meadows Ditch Company. The SACWSD would use the water stored in the Wattenberg Lakes facility to augment depletions from new groundwater pumping resulting from growth and development within its District boundaries. Because the well depletions would be fully augmented with historic depletions, no new depletions would occur to the South Platte River below the proposed facility as a result of SACWSD's water delivery system. However, use of the facility by SACWSD would cause additional depletions due to evaporation from SACWSD's portion of the stored water. The evaporation depletions, estimated at 107 af per year, would be frilly replaced with historic depletions; therefore, operation of SACWSD's portion of the storage facility would not cause new depletions to the South Platte River. Our regulations define the action area to be all areas directly or indirectly affected by the Federal action, and not merely the immediate area involved in the action (50 CFR 402.02). While the project-related depletion occurs in Weld County, Colorado,the reduction of water would impact Platte Basin hydrology, and result in associated impacts to federally listed species and their critical habitats downstream in the central and lower Platte River,Nebraska. Consequently, these downstream areas are considered part of the action area of this consultation. We have determined that the action area consists of the project area and the South Fork and main stem of the Platte River downstream of the project footprint to the confluence of the Platte and the Missouri on the Nebraska State line. Our determination of action area is consistent with the findings of Nebraska v Rural Electrification Administration. Portions of the action area which are not occupied by listed species, or do not overlap with habitat for listed species, are not considered in this biological opinion. The downstream portion of the action area that is occupied by listed species occurs between Lexington and the confluence of the Platte and Missouri Rivers. STATUS OF SPECIES WHOOPING CRANE Unless otherwise indicated, information on the whooping crane is drawn from the Whooping Crane Recovery Plan (Service 1994a). We listed the whooping crane as threatened with extinction on March 11, 1967 (32 FR 4001), endangered in 1970 (35 FR 16047), and designated critical habitat on May 15, 1978 (43 FR 20938). Species Description The whooping crane is in the Family Gruidae, Order Gruiformes. It is the tallest North American bird at approximately 5 feet. Adult plumage is snowy white overall except for black primaries, black or grayish alulae, sparse black bristly feathers on the carmine crown and malar Mr. Timothy Carey 6 region, and a dark gray patch on the nape. The bill and long legs are olive-gray. The sexes are alike, with males generally larger than females. Juveniles have rust-colored plumage initially, with white feathers appearing gradually through the first winter and spring. Full adult plumage is not attained typically until late in their second summer (Service 1994a). Life History The whooping crane has a long life span-but relatively low fecundity (birth rate). Whooping cranes are monogamous and mate for life, but will re-mate upon the death of their partner (Blankinship 1976). Maximum longevity in the wild has been estimated at 22 to 24 years (Binkley and Miller 1983). Egg-laying usually starts in the fourth year of life, and a two-egg clutch is the norm. Only one clutch is produced per year, and occasionally mated pairs skip a nesting season for no apparent reason(Service 1994a). Whooping cranes in the one self-sustaining wild population migrate each year between wintering grounds on or near the Aransas National Wildlife Refuge (NWR) along the Texas gulf coast and breeding grounds at Wood Buffalo National Park in Canada. The primary migration corridor runs in a narrow band across the United States from extreme northeastern Montana south through North Dakota, South Dakota,Nebraska, Kansas, Oklahoma, and Texas. In Nebraska, the corridor averages 100-120 miles wide and includes the stretch of the Platte River from the city of North Platte to just east of Grand Island. Johnson(1982) estimated that 82 percent of all confirmed recent sightings had been made within the primary corridor;the remaining sightings have been predominantly to the west. The spring(northward)migration from Aransas, Texas, begins in late March with whooping cranes arriving 2,500 miles away at Wood Buffalo, Canada, in late April. The fall (southward) migration from Wood Buffalo begins in mid-September, and whooping cranes begin arriving in the Aransas area during October. Migrating cranes usually are observed as separate flocks of two to eight subadults or unsuccessful breeding adults, family groups (two adults, one juvenile), or single birds (Armbruster 1990). During spring migration, adults have critical nutritional requirements which must be met to ensure that the birds arrive at the nesting grounds in good reproductive condition. Adults need adequate reserves of body fat to sustain them upon their arrival on the breeding grounds,which are often still frozen rendering food unavailable. In addition to caloric requirements, females must gather adequate calcium each spring to produce healthy eggs and chicks. Family groups migrating southward in the fall require specific habitats to meet the nutritional and security needs of the young. Howe (1989) found that family groups appeared to select more vegetated wetlands during fall migration than non-families. Vegetated wetlands may provide better cover for young birds, thus reducing detection by predators. Vegetated wetlands also may yield higher densities of protein-rich invertebrates, which are important to migrating juveniles during the fall (Howe 1989), because migration requires a substantial expenditure of energy, especially for individuals that are not fully grown. Whooping cranes are omnivorous, taking a variety of both invertebrate and vertebrate animals as well as plant tubers and berries (Walkinshaw 1973). During migration, whooping cranes forage in small-grain croplands, upland grasslands, and wetland habitat areas. A major part of the Mr. T mothy Carey 7 - - whooping crane's energy-requirements during migration across the Great Plains probably comes - from waste agricultural crops. Although the proportions of plant and animal food in the diet are not known, whooping cranes require animal matter to satisfy critical nutritional needs. Foods used by migrating whooping cranes and available in wet meadows along the Platte River include small fish, snakes, frogs, frog egg masses, crayfish, grasshoppers, crickets, and other insects ice 1981, 1994a, Currier et al. 1985, Ballinger 1980, Cochnar and Jensen 1981, Freeman i Perkins 1992, Davis and Vohs 1993). Many of these organisms depend on aquatic moisture regimes, or seasonally moist or saturated soils for all or part of their life cycle. Status and Distribution The historic breeding range of the whooping crane extended from central Illinois northwestward through northern Iowa, western Minnesota, northeastern North Dakota, southem Manitoba and Saskatchewan, and the general vicinity of Edmonton, Alberta,to the present nesting area of Wood Buffalo National Park. Whooping cranes used several migration routes between these areas. During winter, whooping cranes primarily used habitats along the Gulf of Mexico from Louisiana to northeastern Mexico. A lesser migration route crossed the Appalachian Mountains to wintering areas along the Atlantic Coast. Some whooping cranes were believed to have migrated to interior Mexico, following the migration route of sandhill cranes. A nonmigratory population occurred in southwestern Louisiana(Service 1994a). The current distribution of the whooping crane is limited to five captive populations and three wild populations. Two of the three wild populations are the result of captive propagation and experimental release of pen-reared birds. The Aransas-Wood Buffalo population is currently the only self-sustaining and naturally reproducing population in the wild. Population Dynamics The whooping crane is the rarest of the world's 15 crane species. Although whooping cranes probably were never very abundant, Allen(1952) estimated rangewide populations of 1,300 to 1,500 individuals between the years of 1860 and 1870. Banks (1978) used 2 independent techniques of population estimation to derive estimates of 500 to 700 whooping cranes in 1870. Habitat loss throughout most of its former breeding range in central North America contributed to population declines. One non-migratory population of whooping cranes in southwest Louisiana was reduced to six individuals by a hurricane in 1940, and the last individual was taken into captivity in 1950. By 1941, the migratory population(Aransas-Wood Buffalo population)that breeds in Wood Buffalo National Park in the Northwest Territories and Alberta, Canada, and winters on and near the Aransas NWR along the Texas coast, reached a low of 15 individuals, with 6 to 8 breeding birds. Legal protection was obtained, and habitat acquisitions and intensive management instituted for important wintering, breeding, and migrational habitats. The Aransas-Wood Buffalo population is the single remaining breeding population in the wild, and intensive efforts to establish other wild breeding populations have not succeeded. This population as increased from the low of 15 individuals in 1941 to approximately 215 birds counted in March of 2005. All of these individuals are descendants from the original six to eight breeding birds; therefore, their genetic composition is from that small founder population. The present population includes 142 territorial adults (71 pairs), 40 subadults, and 33 juveniles. Mr. Timothy Carey 8 The whooping crane has the highest long-term recruitment rate (0:139) of any North American crane population. Recruitment averaged 0.161, (range= 0.0 to 0.318) from 1938 to 1967, and 0.115 (range= 0.027 to 0.191) from 1968 to 1992 (Drewien et al. 1995). In the 1970s and 1980s,the Aransas-Wood Buffalo population was increasing by 4 percent annually (Binkley and Miller 1983). Recent studies suggest a 10-year cycle in survivorship, though the possible causes remain unknown (Boyce and Miller 1985,Boyce 1987, Nedelman et al. 1987). Modeling has estimated annual population growth since 1944 at 0.046 (standard deviation= 0.081). The standard deviation is about double the mean growth rate, which means that in some years the population may decline, although the long-term trend is still increasing. The observed pattern is consistent with steady increase of a slowly reproducing population currently not limited by breeding habitat(Service 1994a). Habitat Whooping cranes nest in remote areas at the northernmost extreme of the species' historic breeding range. Nesting territories occupy poorly drained areas where muskeg and boreal forests intermix (Allen 1952). The cranes nest in emergent vegetation(primarily bulrush and sedges) in the shallow portions of ponds, small lakes, and wet meadows. Nests are usually constructed of bulrush and other surrounding wetland vegetation in shallow(5.5 to 11 inches) water(Allen 1952). The Aransas-Wood Buffalo population winters in bays and coastal marshes on the Texas Gulf Coast. Whooping cranes use a variety of habitats during migration, including croplands, marshes, shallow reservoirs and sheet-water areas, and submerged sandbars in rivers. The vast majority of whooping cranes sightings during migration are near wetlands that provide undisturbed roosting sites. Such sites are important for providing both the necessary food base and seclusion from disturbance by humans and predators. During migration, they select palustrine wetlands and riverine habitat for roosting remote from human intrusion and where they have open vistas to facilitate predator detection(Service 1994a). Water characteristics apparently contribute to site security. An evaluation of ten known whooping crane riverine roosting sites identified the following characteristics (Johnson and Temple 1980; Service 1981): • Wide channel (9 of 10 roost sites measured were between 510 and 1,200 feet wide); • Unvegetated; • Fine substrate, usually sand; • Good horizontal visibility unobstructed from riverbank to riverbank and at least a few hundred yards upstream and downstream (or to a bend in the river); • Good overhead visibility, absence of tall trees, tall and dense shrubs, or high banks near the roost; • Shallow water(all sites evaluated were less than 12 inches deep and six of nine sites were 2 to 6 inches deep), although water in the main channel may be considerably deeper; • Slow flow rates (approximately 1.5 to 5.9 feet per second), although water in the main channel may be flowing faster; • Proximity(usually within 1 mile) to suitable feeding sites; • The presence of unvegetated sandbars with very low elevation above water and near the middle of the river; and • A distance of at least 0.25 mile from roads, houses, and railroad tracks. Mr. Timothy Carey 9 Roosting sites are typically filled with water or nearly so. The total wetted width at roost sites has averaged 90 percent of channel width(range 55 to 100 percent; median 95 percent). The water depths vary across the channel at each site, providing shallowly submerged sandbars and deeper channels around the sandbars (Faanes et al. 1992b). The deepest channel at the sites has ranged from 1.5 to 3.5 feet(Service unpublished data). Whooping crane family groups migrating southward in the fall require habitats that provide the nutritional and security needs of the young. Family groups appear to select more vegetated wetlands during fall migration than non-families. Though the reason for this is not known, vegetated wetlands likely yield higher densities of protein-rich invertebrates. Invertebrates could be important in the fall to juveniles that are not fully grown (Howe 1989). Vegetated wetlands also may provide better cover for young birds, and thus reduce detection by predators. Threats The whooping crane became endangered as a result of unregulated shooting and alteration and destruction of habitat. The primary factors involved were increased shooting of birds and collecting of eggs, loss of nesting habitat in the northern Great Plains of the United States and prairie provinces of Canada due to expanding human settlement and agricultural development, loss of wintering habitat due to agricultural expansion, and increased hazards of migration as a result of human development activities within the migration route. The impact of human conversion of pothole wetlands and prairies to crop production throughout North America, and the species sensitivity to disturbance, made nearly all of the whooping cranes' original range unsuitable for the species. Disruptive practices included draining, fencing, plowing, sowing, cultivation, harvesting, and human activities associated with these operations (Service 1994a). Current threats to whooping cranes include--habitat loss and alteration, especially at Aransas NWR;pollution to wintering cranes at Aransas NWR from barge traffic and accidents in the Gulf Intracoastal Waterway; oil drilling and extraction in and near Aransas NWR; human disturbance from increased tourism,recreational and commercial boat traffic; collision with utility lines, which is the principal known cause of whooping crane mortality during migration; illegal and accidental shooting; disease, including avian tuberculosis and avian cholera; low genetic diversity and inbreeding depression associated with small population size and from the extreme genetic bottleneck that occurred when the population was reduced to six to eight breeding individuals; and drought conditions within the breeding grounds (Meine et al. 1996). Shooting of whooping cranes is prohibited under the Act. However, illegal and accidental shooting has occurred along migration routes and near Aransas NWR. For example, two adult cranes were killed by hunters in Kansas in the fall of 2004, and a single adult whooping crane was killed by a hunter in Texas in the fall of 2003. As hunting of sandhill cranes has expanded in recent years, the risk of whooping cranes has increased(Konrad 1987). Inexperienced hunters are liable to mistake whooping cranes for sandhill cranes, snow geese, or tundra swans. Loss of habitat may preclude the whooping crane from recolonizing areas within its former range. Within its current range, the continued existence of the whooping crane remains vulnerable to catastrophic loss from factors such as weather events, disease, or toxic contamination of the environment. Survival and recovery of the whooping crane continue to be inextricably Mr. Timothy Carey 10 dependent on the survival and recovery of the Aransas-Wood Buffalo population;which depends on a number of interrelated factors, including the availability of suitable habitat along the migration route. The biannual migrations are the period when individuals are probably exposed to the greatest number of risks, and most deaths of juvenile and adult cranes occur(Lewis 1995). 'Long-lived individuals travel this route 40 to 60 times or more during their lifespan. In addition to physiological stress, migrating whooping cranes are exposed to a variety of potential hazards that include power lines, environmental contamination, contagious disease, and shooting. Like other migratory birds with delayed sexual maturity and life-long pair bonds, whooping cranes adhere to ancestral breeding areas, migratory routes, and wintering grounds, leaving little possibility of pioneering into new regions. Concern over the near extinction of the whooping crane has prompted a broad range of conservation actions, including national and international legal protections; comprehensive scientific research and monitoring programs; protection of key habitats; development of whooping crane recovery teams and comprehensive recovery plans;programs for captive breeding and reintroduction; and extensive public education campaigns. Legal protection was obtained, and habitat acquisitions and intensive management instituted for important wintering, breeding, and migration habitats. Critical Habitat Five areas have been federally designated as critical habitat for whooping cranes (43 FR 20938). The designated critical habitat areas include the wintering area at Aransas NWR and the following four migration areas--Salt Plains NWR, Oklahoma; Quivira NWR and Cheyenne Bottoms State Wildlife Area, Kansas; and the Platte River valley,Nebraska. These areas have geographic importance and are observed to have the highest frequency of crane use of any areas in the species' migration path(Allen 1952,Austin and Richert 2001). The designation of migration habitats recognizes the critical role that these areas play in the long-term survival, conservation, and recovery of the species. The importance of maintaining traditional habitats such as the Platte River and other areas is amplified by the impact of ongoing human conversion of wetlands and grasslands to crop production, which ahs made nearly all of the whooping crane's original nesting range unsuitable for use by the species. The critical habitat designation included locations that provided for the following biological characteristics or requirements of whooping cranes: 1. Territoriality. Each territorial pair requires several hundred acres of undisturbed wetlands in and around Aransas National Wildlife. Unmated subadults also need some suitable habitat that is not regularly defended by paired cranes. 2. Food, water, and other nutritional or physiological requirements. Wintering cranes feed primarily on various crustaceans and mollusks found in the tidal flats and marshes. Crayfish, frogs, small fish, and other small animals appear to be the major items taken in Mr. Timothy Carey 11 wetlands on spring migration. During fall migration, whooping cranes seem to feed more extensively in recently harvested grain fields where insects and wasted grains seem to constitute the bulk of their diet. 3. Roosting habitat. Whooping cranes require an open expanse for nightly roosting. This habit of using sand or gravel bars in rivers and lakes for nightly roosting appears to be one of the major factors in crane habitat selection. Feeding cranes seen in migration are frequently found within short flight distances of reservoirs, lakes, and large rivers that offer bare island for nightly roosting. 4. Protection of potential nesting habitat. The rearing of young cranes extends for approximately 10 months; that is until the young cranes are driven out of the family unit by their parents on the spring migration. The areas in the critical habitat rule are essential to the rearing of young cranes by providing cranes with sites for training and protection as well as feeding and other normal behavior. 5. Sensitivity to disturbance. As describe in the preceding section, whooping cranes do not readily tolerate disturbances to themselves or their habitat. Records from the Whooping Crane Migration Cooperative Monitoring Project indicate that the four federally designated critical habitat areas have the highest observed whooping crane use of any other locations within the flyway. INTERIOR POPULATION OF THE LEAST TERN Unless otherwise indicated, information on the least tern is drawn from the Interior Population Least Tern Recovery Plan(Service 1990a). The interior population of the least tern(interior least tern) was federally listed as an endangered species on May 28, 1985 (50 FR 21784). Critical habitat has not been designated for the interior population of the least tern. Three populations of least terns are recognized (California, eastern, and interior). Unless otherwise indicated, this section discusses the interior population of the least tern Species Description Least terns are the smallest members of the subfamily Sterninae and family Laridae of the order Charadriiformes,measuring only 8 to 9 inches in total length with a wingspan of 19 to 21 inches. The species is characterized by a black crown, white forehead, dark gray wings and back, and black outer primaries. Sexes are alike except for the intensity of bill and leg color, which varies from orange in males to orange/yellows in females, and a slight difference in bill size. Most bills are tipped in black (Service 1990b). Formerly considered a subspecies of the little tern(Sterna albifrons), an Old World species, the least tern is now differentiated as a full species (American Ornithologist's Union (AOU) 1983). In addition to the Interior least tern (S. antillarum athalassos), an East Coast race (S. a antillarum), and a West Coast race (S. a. browni)have been described. The validity of subspecies designation has been challenged by suspected genetic exchange and lack of consistent morphological, genetic, or behavioral differences between these populations (Boyd and Mr. Timothy Carey 12 Thompson 1985,Massey 1974). New genetic information suggests dispersal among interior; eastern, and California least tern populations. Whittier (2001) proposed that the three subspecies of least terns do not differ genetically, although the rate of genetic exchange appears to be lower between interior and California least terns than between eastern and interior, and Eastern and California subspecies. Life History Least terns nest in colonies as small as a single pair of birds to 100-plus pairs. Least terns arrive at breeding areas from late April to early June (see Service 2003) and spend 4 to 5 months at their nesting sites. Breeding pairs are monogamous, and courtship and pair formation occur on the breeding grounds. Courtship involves aerial displays, courtship feeding,posturing, parading, and copulation. Courtship occurs at the nest site or at some distance from the nest site (Tomkins 1959) and includes the fish flight, an aerial display involving pursuit and maneuvers culminating in a fish transfer on the ground between the two displaying birds. Other courtship behaviors include nest scraping, copulation, and a variety of postures and vocalizations (Service 2003). Least terns usually lay two to three eggs in a shallow, inconspicuous depression. Small stones, twigs,pieces of wood and debris usually lie near the nest. Date of egg-laying varies geographically, from late April in Texas to late May or early June in Nebraska. Clutch size averages about three for interior least terns (Kirsch 1996). Incubation takes from 19 to 25 days, and juvenile birds fledge around 20 days from hatching. Fledglings are independent of the nest within 3 days of hatching, but may continue to be fed by parents for several weeks (Massey 1974). Reproductive success may vary widely between years or colonies due to stochastic events such as flooding or predation (Kirsch 1996). Departure from colonies by both adults and fledglings varies, but is usually complete by early September (Service 2003). Protection of the nest from predators relies largely on two strategies. Least tems mob any predators that venture onto nesting colonies (Thompson et al. 1997). Because their ground nests are highly vulnerable to mammalian predators, they select secure sites such as exposed mid-channel sand bars more than off-channel habitat. However, nesting on sand bars increases the risk of flooding of nests and chicks (Lingle 1993a). Least terns forage almost exclusively upon small, narrow bodied, schooling fish(Atwood and Kelly 1984, Wilson et al.1993, Schweitzer and Leslie 1996). Least terns are viewed as opportunistic feeders, exploiting any fish within a certain size range. Important prey fish genera include--Fundulus,Notropis, Campostoma,Pimephales, Cyprinella,Morone,Dorosoma, Lepomis, and Carpiodes. Foraging usually occurs in close proximity to the nesting colony; however,birds nesting at sand and gravel mining sites and other artificial habitats may fly up to 3.2 km to forage at riverine sites (Smith and Renken 1990). Lingle (1988) and Wilson(1991) observed that least terns nesting at sand pits frequently foraged in the Platte River. Population Dynamics The least tern is a difficult species to census accurately due annual variation in nesting locations, timing of nesting,habitat availability (e.g., seasonal duration and timing of flooding of sandbar habitats) and latitude (Thompson et al. 1997). For these reasons, population estimates should be viewed with caution. During 2003, an estimated 12,035 least terns were widely scattered across Mr. Timothy Carey 13 the interior of the United States. These estimates represent an increase from 1997 figures, when - an estimated 5,412 least terns were widely scattered across the interior of the United States. The percentage of interior least tems nesting in Nebraska decreased from 12 percent in 1997 to 7.3 percent in 2003. For the interior population as a whole, the majority (52 to 79 percent) of least terns are found along the lower Mississippi River. The Platte River in Nebraska accounts for the second largest number of least terns (6.2 to 13.6 percent) (Kirsch and Sidle 1999, Jones 2001). An analysis of tern population data for 1986-1995 for the entire range indicated an overall positive trend (X= 1.09). The trend for the entire population was influenced by a relatively strong positive trend on the lower Mississippi River, where more than half of the interior least terns nest. When Platte River populations were considered separately, no increase in numbers was detected. In fact, the number of least terns in Nebraska decreased by 25 percent between 1996 and 2001. Kirsch(1996) determined conservatively that fledge rate of 0.51 fledglings/pair was necessary for population maintenance. Many local populations and the species in general may not be producing enough fledglings to support themselves in the variable environment that exists. Recent increases in least tern numbers (excluding the Lower Mississippi River birds) could be explained as immigration of birds from elsewhere rather than actual recruitment from within an area. Kirsch and Sidle(1999) suggested that immigration from the large and stable Gulf Coast population may be an important influence on the dynamics of the interior population. Boyd and Thompson(1985)presented evidence for reproductive mixing between these populations. Nesting habitats are ephemeral in quality and abundance, and productivity varies from year to year. Populations could probably be maintained if fledgling success is high periodically (Mertz 1971, Caswell 1982, Kirsch and Sidle 1999). Population trends for least tems are more sensitive to variations in adult and fledged juvenile survival than to fledging success (Kirsch 1992). However, statistics on adult and fledged juvenile survival are not known(Kirsch and Sidle 1999). Status and Distribution The interior least tern historically bred along the Mississippi, Red, and Rio Grande River systems and Rivers of central Texas. The breeding range extended from Texas to Montana and from eastern Colorado and New Mexico to southern Indiana. Formerly distributed throughout riverine habitats across the Great Plains, the interior least tern now occupies scattered remnants of its former range. Where they still occupy riverine breeding habitat of the Missouri River and its tributaries,the Arkansas and Red River systems, and the Rio Grande, they are generally limited to segments that are not affected by impoundments or channelization(Service 1990a). The winter distribution of the least tern is poorly understood(Thompson et al. 1997). On the Pacific coast,they have been observed in coastal areas of southern Mexico. On the Atlantic coast, they are regularly observed wintering along the eastern coast of Mexico, Central, and South America to as far as Argentina. Mr. Timothy Carey 14 Habitat Least terns nest in areas with similar habitat attributes throughout their North American breeding range. Least terns choose areas with little vegetative cover (Dirks 1990, Ziewitz et al. 1992) and homogenous substrates (Adolf 1998) that are close to stable food sources (Faanes 1983, Dugger 1997, Adolf 1998). Beaches, sand and gravel spoil piles, sandbars, and peninsulas are the principal breeding habitats for all least tern populations or subspecies. Interior least terns nest on sandbars with little vegetation within the main channel areas of large alluvial rivers. Least tern breeding habitats are dynamic, continually changing, and are formed and maintained by the hydrology of the river and the movement of its alluvial bedload. Unconsolidated material such as small stones, gravel, sand, debris, and shells comprise the nesting substrate. A mixture of coarse sand and other fragments may offer preferred cryptic qualities, stability in wind, and water permeability. Riverine nesting colonies are found on exposed sand bars above the high flows and located in a wide, unobstructed channel (Service 1990a). Vegetative cover is usually less than 10 percent at the time of nest initiation(Faanes 1983). Least tern colonies in denser vegetation may be a response to habitat loss or a function of site tenacity. Eventually, least terns will abandon heavily vegetated nesting sites. The interior least tern also nests in dike fields along the Mississippi River(Smith and Stucky 1988, Smith and Renken 1990); at sand and gravel pits; ash disposal areas of power plants (Wilson 1984, Johnson 1987, Dinsmore and Dinsmore 1988); along the shores of reservoirs (Chase and Loeffler 1978, Neck and Riskind 1981, Boyd 1987, Schwalbach 1988). It is unknown to what extent those alternative habitats have replaced productive natural habitat. Foraging habitat for least terns includes side channels, sloughs, tributaries, shallow-water habitats adjacent to sand islands and the main channel. To successfully reproduce,productive foraging habitat must be located within a short distance of a colony (Dugger 1997). In a study of eastern least terns in North Carolina, all 61 of the colonies observed were within 820 feet of a large expanse of shallow water(Jernigan et al. 1978). In Georgia, eastern least terns foraged a maximum distance of 1,345 feet from the colony (Tomkins 1959). Least terns in Nebraska generally were observed foraging within 328 feet of the colony(Faanes 1983). Threats Historically, the least tern was hunted for the commercial use of its feathers to decorate ladies' hats (Service 1990b). Since the early 1900s, habitat alteration and destruction in the form of river channelization and the construction of reservoirs for hydropower, flood control, and irrigation has had detrimental effects on the species' habitat. Channelization, irrigation, and the construction of reservoirs also have contributed to the elimination of much of the riverine nesting habitat for least terns. The Missouri River Bank Stabilization and Navigation Project is an example; the wide, braided character of the Missouri River has been engineered into reservoirs and a single, narrow navigation channel. Hydropower demands are unpredictable, resulting in fluctuating flows, and flow regimes that differ greatly from historic regimes. Present day water management practices allow upstream releases of water which can result in high flows extending into the nesting season. Reservoir storage of flows has led to vegetative encroachment on riverine sandbars as a result of reduced Mr. Timothy Carey 15 scouring flows and ice. In addition, large amounts of sediment which enter the reservoirs settle out, leaving clean, sediment free water downstream. This sediment-hungry water results in reduced aggradation and increased degradation in the river bed. These processes prevent the formation and maintenance of sandbar nesting habitat. In addition to the effects of habitat and flow alterations, human disturbance has played a role in the species' decline. Human presence reduces reproductive success in Charadriiformes (Carney and Sydeman 1999). Disturbance of nesting terns included the following effects: startling adults from the nest and potentially resulting in overheating or chilling of nest contents, alerting predators to the location of nests, and direct loss (Mayer and Dryer 1988, Smith and Renken 1990). Direct losses resulting from human presence include trampling under foot, crushing of nests by all-terrain vehicles, and predation by dogs accompanying the humans. Rodgers and Smith(1997) studied flushing distances for loafing and foraging waterbirds, increased energy expenditure of flushed birds, and the importance of disturbance free foraging areas to secure prey for developing chicks. They went on to suggest that availability and access to undisturbed foraging grounds may be as important as disturbance free-nesting sites. Reduced instream flow due to irrigation diversion has adversely affected the forage fish community necessary to maintain the populations of interior least terns. Reductions in flows due to human-made water diversions during summer months increases frequency and duration of high water temperatures that adversely impact fish populations (Dinan 1992). Elevated water temperatures affect fish physiology, which influences survival rate, growth rate, embryonic development, and susceptibility to parasites, disease, and pollutants. Water temperature fluctuation also can result in behavioral changes with respect to habitat use, distribution, species interactions, timing of spawning, and duration of incubation (Fry 1971, Crawshaw 1977, Matthews and Hill 1979, Matthews and Maness 1979, Adams et al. 1982, Stauffer et al. 1984, Armour 1991). Matthews and Maness (1979) proposed that the synergistic effects of elevated temperatures and reduced oxygen is probably limiting for fishes in streams of the Great Plains. Predation and flooding accounted for 74 percent(37 percent each) of nest failure in riverine habitat (Lingle 1988). Predation was the greatest cause of nest failure on sand pits followed by human disturbance and weather. Only 3 percent of the sand pit nests were lost to flooding compared to 37 percent of the river nests. However, human disturbance and abandonment accounted for 27 percent of sand pit nests that failed and only 17 percent of the failed river nests (confusion of abandonment with predation may have biased these estimates). Weather took a larger toll on sand pit nests because the uniform substrate was more susceptible to wind and water erosion than riverine substrates. Predation is the major cause of nest failure for both riverine and sandpit nests. Dogs or coyotes (Canis latrans) were suspected in 38 cases (78 percent); skunks (Mephitis spp.) in 3 cases (6 percent); raccoon(Procyon lotor), great homed owl (Bubo virginianus), and American crow (Corvus brachyrhynchos) in 2 cases each(4 percent); and great blue heron(Ardea herodias) and snake in 1 case each(2 percent). Other potential predators include mink (Mustela vison), American kestrel(Falco sparverius), black-billed magpie (Pica pica), bullsnake (Pituophis melanoleucus sayi), and garter snake (Thamnophis spp.). Mr. Timothy Carey 16 Selenium also may be contributing to low recruitment of least terns in the Great Plains (Fannin and Esmoil 1993; Allen et al. 1998). During a study conducted between 1992 and 1994, selenium concentrations exceeded the recommended threshold for impacts on avian reproduction in every State in each year except Kansas in 1993 and Montana in 1994 (Allen et al. 1998). Low hatching success has been associated with selenium concentrations of 2.4 µgig wet-weight in black-necked stilts (Himantopus mexicanus) and American avocets (Recurvirostra americana). The mean selenium concentrations for Nebraska were 4.3 µg/g, 4.2 µgig, and 4.6 µg/g for 1992 through 1994, respectively. Selenium may be causing embryo mortality without gross embryological defects being observed (Fannin and Esmoil 1993). Impacts of contaminants, combined with habitat degradation, may accelerate population declines. Therefore, selenium concentrations should be considered as a potential factor in low productivity in the Great Plains, including Nebraska. The source of this selenium is not known. NORTHERN GREAT PLAINS POPULATION OF THE PIPING PLOVER The Service first published a recovery plan for the Northern Great Plains population of the piping plover in 1988 (Service 1988). Unless otherwise noted, the following information is from the Revised Recovery Plan for Piping Plovers (Charadrius melodus) breeding on the Great Lakes and Northern Great Plains (Service 1994b). The piping plover was federally listed on December 11, 1985, as threatened in the Northern Great Plains and Atlantic Coast and endangered in the drainages of the Great Lakes (50 FR 50726). Species Description and Taxonomy The piping plover is one of six North American species of belted plovers in the Family Charadriidae. It is a small plover(body length of 6.7 inches, wing lengths 4.3 to 4.7 inches) with sandy colored upper parts, white beneath, and orange-colored legs. During the breeding season, both sexes acquire a black forehead, a single black breast band, and an orange bill. In the non-breeding season,the black markings and orange bill color are lost. Juveniles appear similar to adult non-breeding plumage. Adult plumage is acquired in the second year. The piping plover takes its name from the beautiful vocalizations made during courtship displays. Originally described as a race of the Old World common ringed plover (Charadrius hiaticula), the piping plover was first considered a separate species by Ord (1824). The AOU Checklist listed the species as Charadrius melodus in 1931. Scientists have debated for years the validity of the designation of two subspecies, C. m. melodus (Atlantic birds), and C. m. circumcintus (inland birds), which the AOU adopted in 1957 (Service 2000). In 1998, the AOU returned to the single-species designation after genetics were reported similar between the groups (Haig 1988,AOU 1998). Ongoing research, using more sophisticated genetic techniques, may clarify this issue in the near future (Service 2000). Life History Piping plovers arrive on breeding from mid-April through mid-May. Courtship and pair formation occurs on the breeding grounds. Nests are initiated in early to mid-May, incubation lasts 25 to 31 days, with eggs hatching from late May through mid-June. The precocial chicks generally remain on the nesting territory, slowly expanding their movements until fledging Mr. Timothy Carey 17 around 21 days after hatching. Adults may leave the breeding grounds before their young, as early as mid-July. The young leave a few weeks later, and are usually gone by late August (Service 1988). Unlike the least tern, the piping plover defends a relatively large breeding territory, resulting in much lower breeding densities. The piping plover is mainly monogamous though sequential polyandry has been occasionally observed (Haig 1992). The nest is a simple scrape on the ground, lined with pebbles. Normal clutch size is four, and no more than one brood of young is raised in a breeding season. Both adults share in incubation and care of the young (Service 1988). Piping plovers nest on sparsely vegetated sandbars, aggregate mining spoil piles, and reservoir shorelines. Piping plovers also nest on shorelines of alkali lakes in the prairie pothole region of the United States and Canada. Nesting habitats on the Platte, Niobrara, and Missouri Rivers typically are dry sandbars located midstream in wide, open channel beds, with less than 25 percent vegetative cover (Faanes 1983, Schwalbach 1988, Ziewitz et al. 1992). These conditions provide the essential requirements of wide, horizontal visibility; protection from terrestrial predators; isolation from human disturbance; and sufficient protection from rises in river levels. The optimum range for vegetative cover on nesting habitat has been estimated at 0 to 10 percent(Armbruster 1986). Schwalbach(1988) found that 89 percent of the piping plovers studied nested in areas of less than 5 percent vegetative cover, and that 63 percent nested in areas where vegetation height was less than 4 inches. On the Missouri River, average vegetation height on nesting islands ranged from 2.5 to 11.5 inches. Piping plovers forage visually for invertebrates in shallow water and associated moist substrates. Corn and Armbruster(1993a) emphasize the importance of river channel habitat for foraging. Although the food base is similar taxonomically, invertebrate catch rates and densities are higher on river channel sites than on spoil piles. Invertebrate catch rates also increased more dramatically over the course of the summer on riverine sites than on sand pit sites. Substrate moisture most likely explains these differences in invertebrate catch rates. The dominant invertebrate taxa collected from both sites were species associated with moist, sandy environments. Piping plovers using aggregate mining locations concentrated their foraging effort along sand pit shorelines where substrate moisture was highest. Piping plovers foraging on river channel sites, where substrate moisture did not vary with distances from water's edge, tended to forage at all distances from water's edge. Aggregate mining locations likely had lower invertebrate abundance of dominant taxa because of reduced area of moist sand in pit shorelines relative to river channel shorelines (Corn and Armbruster 1993a). Food availability can be critical for piping plovers. Chick mortality is correlated with reduced growth rates (Cairns 1982),potentially a result of reduced food availability. During the breeding season, energy demands on shorebirds are typically higher than energy intake rates (Ashkenazie and Safriel 1979), and even on the best of foraging habitats, breeding shorebirds may not be able to forage efficiently enough to meet those demands(Evans 1976). In areas where invertebrate densities are not high, such as the riverine habitats occupied by piping plovers on the northern Mr. Timothy Carey 18 Great Plains, reductions in invertebrate density, and thus in feeding efficiency can reduce shorebirds' abilities to minimize the energy deficit they are likely to face in this season (Goss-Custard 1977a and 1977b, Connors et al. 1981). Status and Distribution The historical breeding distribution of the northern Great Plains population of the piping plover included beaches and sandbars of the prairie rivers and alkali wetlands from Alberta, Canada, south to the Texas Panhandle and east to Iowa (Service 1988). The current breeding range for the Great Plains extends from alkali wetlands in southeastern Alberta through southern Saskatchewan and Manitoba to Lake of the Woods in southwestern Ontario and northwestern Minnesota, south along major prairie rivers including the Yellowstone, Missouri,Niobrara,North Platte (Lake McConaughy), Platte, and Loup Rivers, reservoirs in southeastern Colorado, and alkali wetlands in northeastern Montana,North Dakota, and South Dakota. Occasional breeding has occurred in Oklahoma and northern Saskatchewan. The piping plover winters along Gulf Coast beaches and mud flats from Florida to northern Mexico. Large numbers of piping plovers are observed wintering along the Texas coast. Band return data indicate that most Great Plains piping plovers winter along the Gulf Coast, though a few have been observed along the Atlantic coast (Service 1988). Population Dynamics The 1991 international piping plover breeding and wintering census represented the first complete census of all known piping plover breeding sites and most wintering sites in North America(Haig and Plissner 1992). This comprehensive census was repeated in 1996 (Plissner and Haig 1997) and 2001 (Ferland and Haig 2002). Currently, piping plovers are widely distributed in small populations across their breeding range. The majority of adults (63 percent) are found in the Great Plains while the number of birds and breeding sites on the Great Lakes remains small. During the 1991 international census, 236 piping plovers were counted along the North Platte (Lake McConaughy shoreline), Platte, Loup, and Elkhorn Rivers. An additional 162 piping plovers were censused along the Niobrara River. The resulting total of 398 piping plovers censused in Nebraska represented 19 percent of the United States Great Plains population and 11 percent of the total Great Plains population. During the 1996 international census, 259 piping plovers were counted along the North Platte, South Platte, Platte, Loup, and Elkhorn Rivers in Nebraska, and another 107 piping plovers along the Niobrara River, resulting in a total of 366 birds located in Nebraska. The 366 piping plovers counted represent 23 percent of the United States Great Plains population and 11 percent of the total Great Plains population. Mr. Timothy Carey 19 The third International Census was conducted in 2001 (Ferland and Haig 2002). The census - documented 5,945 adult piping plovers. From the United States Northern Great Plains/Prairie Canada, 2,953 individuals were counted. The Atlantic Coast(including Canada) accounted for 2,920 individuals. The Great Lakes reported 72 individuals. On the wintering grounds, 2,389 piping plovers were located. Table 1 compares breeding survey results among 1991, 1996, and 2001 for the United States northern Great Plains/Prairie Canada piping plovers (Service 2003). This represents a decrease of 18 percent and 25 percent from the 1996 and 1991 census totals, respectively. When considering the entire United States northern Great Plains/Prairie Canada population, 7.2 percent of the birds were found in the Platte River basin in 2001. The National Research Council (NRC) (2004) concluded that the Service used appropriate scientific knowledge when designating critical habitat for the piping plover. Table 1. International Piping Plover Census Results 1991-2001. LOCATION ADULTS TRENDS 1991 1996 2001 1991-1996 1996-2001 1991-2001 U.S.Northern Great Plains/Prairie Canada 3,469 3,286 2,953 -5.3% -10.1% -14.9% Population fluctuations are prominent in prairie habitat because precipitation and drought can significantly influence annual habitat availability(Goossen et al. 2002). Populations on the Elkhorn, Loup, and central Platte River areas declined between 1996 and 2001, while the population on the Missouri River increased several fold (Service 2003). The large increase on the Missouri River is likely due to substantial increases in habitat availability due to flood events in 1997. Ryan et al. (1993) developed a stochastic population growth model, using empirical, demographic data and indicated that the Great Plains piping plover population is declining 7 percent annually. Unchecked,this decline would result in extirpation of the species in approximately 80 years. They used the simulation model to predict reproductive and survival rates necessary to stabilize and increase the population. Ryan et al. (1993) stated, "When recent adult(0.66) and immature (0.60) survival rates were held constant, a 31 percent increase--from 0.86 to 1.13 chicks fledged per pair--was needed to stabilize the population. Annual population increases of 1 percent and 2 percent required 1.16 and 1.19 chicks per pair, respectively. Such growth would result in the Great Plains population reaching the level--(2,550)pairs--needed for delisting from the United States ESA protection in 53 and 30 years, respectively. One- and 5-year delays in the initiation of 1 percent population growth caused 13- and 67-year delays respectively in reaching recovery." Mr. Timothy Carey 20 Threats The piping plover was listed, and subsequently critical habitat was designated, because of several factors, including: a substantial decline in individuals and habitat; shrinkage of the breeding range; and other continued threats to the species, its habitat and its range (50 FR 50726, 67 FR 57638). Threats to the species in the Great Plains include--the historic and continued enormous loss of appropriate sandy beaches and other littoral habitats due to recreational and commercial development; damming and channelization of rivers; withdrawal of water for irrigation and other purposes; the drainage and modification of Great Plains wetlands; predation; trampling by large confined herds of cattle; human disturbance from recreational use of rivers, alkali wetlands, and bare, alluvial islands. The Recovery Plan for the plover calls for the maintenance of the distribution and range of the species, protection of essential habitat, and the restoration of nesting habitat(Service 1994b). Essential habitat along the Platte River refers to suitable sandbars in the river channel with appropriate flows. Given the degraded habitat conditions for these birds in the central Platte River, channel habitat restoration and adequate instream flows are necessary. Critical Habitat Designation The Service has designated critical habitat for the northern Great Plains breeding population of the piping plover (i.e., 67 FR 57638, dated September 11, 2002). Critical habitat has been designated for 19 critical habitat units comprised of areas of prairie alkali wetlands and inland and reservoir lakes, totaling approximately 183,422 acres (74,228.4 hectares), and 5 areas found along portions of 4 rivers in the States of Minnesota,Montana,Nebraska, North Dakota, and South Dakota,totaling approximately 1,207.5 river miles (1,943.3 kilometers). Primary constituent elements for the northern Great Plains breeding population of the piping plover consist of physical and biological habitat features essential for the biological needs of courtship, nesting, sheltering, brood-rearing, foraging, roosting, intraspecific communication, and migration. The one overriding primary constituent element(biological) that must be present at all sites is the dynamic ecological processes that create and maintain piping plover habitat. The habitat types, or physical primary constituent elements that sustain the northern Great Plains breeding population of piping plovers are described below: On prairie alkali lakes and wetlands, the physical primary constituent elements include-- (a shallow, seasonally to permanently flooded, mixisaline to hypersaline wetlands with sandy to gravelly, sparsely vegetated beaches, salt-encrusted mud flats and/or gravelly salt flats; (b) springs and fens along edges of alkali lakes and wetlands; and (c) adjacent uplands 200 feet (61 meters) above the high water mark of the alkali lake or wetland. On rivers, the primary constituent elements include--(a) sparsely vegetated channel sandbars and gravel beaches on islands; (b)temporary pools on sandbars and islands; and (c) the interface with the river. On reservoirs the primary constituent elements include--sparsely vegetated shoreline beaches, peninsulas, islands composed of sand, gravel or shale and their interface with the waterbodies. Mr. Timothy Carey 21 On inland lakes (Lake of the Woods) the physical primary constituent elements include-- sparsely vegetated and windswept sandy to gravelly islands, beaches and peninsulas, and their interface with the waterbody. PALLID STURGEON Unless otherwise noted, the following information is from the Pallid Sturgeon Recovery Plan (Service 1993a). Species Description The pallid sturgeon belongs to an ancient lineage of bony fishes, (subclass Paleopterygii), which in North America includes eight species of sturgeon in the Family Acipenseridae. Pallid sturgeon have a flattened shovel-shaped snout; long, slender, and completed armored caudal peduncle, and lack a spiracle. They may be distinguished from the closely related shovel-nosed sturgeon (S.platorynchus) by the paucity of dermal ossifications on the belly, 24 or more anal fm rays, and 37 or more dorsal fin rays. The pallid sturgeon is one of the largest fishes in the Missouri/Mississippi River drainage, approaching 86 pounds. Status and Distribution The pallid sturgeon was listed as endangered on September 6, 1990 (50 FR 36641), and is one of the rarest fishes in North America. The range of the pallid sturgeon once encompassed the Missouri River; the lower reaches of the Platte, Kansas, and Yellowstone Rivers; the Mississippi River below the confluence with the Missouri River, and the Atchafalaya River near its divergence from the Mississippi River(Figure 1). Duffy et al. (1996)stated that the historic range of pallid sturgeon also included the Mississippi River upstream to Keokuk, Iowa, before the river was converted into a series of locks and dams for commercial navigation. Although the species' range is large, catch records are extremely rare, with few captures of sub-adults in recent years. The species appears to be nearly extirpated from large segments of its former range, and may be close to extinction. Since 1980, reported pallid sturgeon observations have most frequently occurred from the Missouri River between the Marias River and Fort Peck Reservoir, between Fort Peck Dam and Lake Sakakawea, within the lower 70 miles of the Yellowstone River to downstream of Fallon, Montana, in the headwaters of Lake Sharpe, from the Missouri and Platte Rivers near Plattsmouth,Nebraska, from the Mississippi River below the confluence with the Missouri, and the Atchafalaya River near its divergence from the Mississippi River. Although critical habitat has not been designated, six Recovery-Priority Management Areas (RPMAs) (Figure 2) have been identified. These RPMAs were selected based upon recent pallid sturgeon records of occurrence and the probability that these areas still provide suitable physical habitat for restoration and recovery of the species. These areas are the least degraded and in some reaches still exhibit a channel configuration of sandbars, side channels, and varied depths. The RPMAs also have one or more major tributaries affecting their hydrology, and physical and chemical characteristics. Mr. Timothy Carey 22 The confluence areas of major tributaries to the lower Missouri and Mississippi Rivers are highlighted in the recovery plan for the pallid sturgeon because of their importance as feeding and nursery areas for large-river fish. The RPMA#4, as described in the recovery plan, is the Missouri River below Gavins Point Dam to its confluence with the Mississippi River; most importantly, within 20 miles upstream and downstream of major tributary mouths, including, but not limited to the Platte, Kansas, and Osage Rivers (Figure 2). , / N Miaa'nti R. Yellowato R. ql. ("\ •latte R .�,, Missies' pi R. �K 3". cwb galas R. 'q£y `a ioR. Auasas f 4? Y Red R. x� Atchafalaya R%ta 111111 ,. a Pallid sturgeon historic range --- Figure 1. Historic Range for the Pallid Sturgeon. Mr. Timothy Carey 23 RIVER REACH A 2 1 \r Is{d 4 3 RIVER REACH B 4 �R to 000s. sk- -II Q ; RIVER REACH C Rod 6 Af Figure 2. Recovery-Priority Management Areas and Reach Designations for Propagation and Stocking Plans. Mr. Timothy Carey 24 LIFE HISTORY Longevity and Growth Sturgeon are generally long-lived, and researchers have estimated pallid sturgeon longevity to be in excess of 40 years. In 1999, Dennis Scarneccia (University of Idaho,pers. comm. 1999) estimated the age of a deceased female pallid sturgeon from North Dakota at over 50 years and possibly as high as 60. Using pectoral fm ray cross sections, Fogle (1963) found growth of fish in Lake Oahe was relatively rapid during the first 4 years, but annual increments decreased to approximately 70 millimeters per year between ages 5 and 10. Carlson and Pflieger (1981) found in a small sample size (n=8), that pallid sturgeon from the Missouri and Mississippi Rivers in Missouri showed slightly slower growth than those from South Dakota. Keenlyne and Jenkins (1993) found that male pallid sturgeon (captured in Louisiana, Missouri, and North Dakota) showed rapid growth from ages five to seven until sexual maturity. Carlson et al. (1985)found the total length of pallid sturgeon to be significantly greater than that of shovelnose in the lower Missouri and Mississippi Rivers for each age group in which comparable data were available. Reproductive Biology Because the pallid sturgeon has become so rare and its riverine habitat fragmented, little is known about reproduction or spawning activities. Basic parameters such as spawning locations, substrate preference, water temperature, or time of year have not been extensively documented. No spawning beds have been located and few larval pallid sturgeon have been recorded by investigators. Instances of reproduction have only been documented in the last several years. The Missouri Department of Conservation(MODOC), through a sturgeon monitoring program, has documented larval and young-of-the year pallid sturgeon in the lower Missouri River(Robert Hrabik, MODOC, pers. comm. 2003). Similarly, U.S. Geological Survey (USGS)monitoring also has documented larval sturgeon in the lower Missouri River(Wilson 2004). Montana Fish, Wildlife and Parks also has documented young-of-the-year pallid sturgeon from the 2002 sampling season(Pat Braaten, USGS,pers. comm. 2003). Keenlyne(1989) concluded that, "because of their low reproductive potential, meeting reproductive needs may be a delicate but crucial strand in the success of sturgeon species, including the pallid sturgeon. Pflieger(1997) reports that as pallid and shovelnose sturgeon are known to hybridize, spawning conditions must be similar. Thus, information on shovelnose sturgeon spawning behavior can be used to make inferences about pallid sturgeon behavior. All sturgeon species spawn in the spring or early summer, are multiple spawners, and release their eggs at intervals. Spawning behavior was observed in 1998 during propagation attempts at the Garrison Dam National Fish Hatchery (NFH). Following the luteniezing hormone injection, spawning behavior was observed between sexually mature male and female pallid sturgeon within 20-foot diameter circular tanks (R. Holm, Service,pers. comm. 1998). The larvae of Acipenserids are generally pelagic, becoming buoyant or active immediately after hatching (Moyle and Cech 1982). Although the downstream migration and behavior of young sturgeon is poorly understood, recent work by Kynard et al. (1998) indicates that the downstream migrational period for larval pallid sturgeon begins at hatching and continues up to day 13, with a decline after day 8. Mr. Timothy Carey 25 Spawning is believed to occur sometime between March through July, depending on location (Forbes and Richardson 1905, Gilbraith et al. 1988). Females collected in June and July in Lake Sharpe, South Dakota, contained mature ova and presumably were in spawning condition. However, 10 years of sampling for young-of-the-year fish in Lake Sharpe have provided no evidence of successful reproduction (Kallemeyn 1983). A telemetered pallid sturgeon, captured by a paddlefish angler on May 29, 1993, on the Yellowstone River was gravid, with fully developed eggs. Bramblett (1996) found pallid sturgeon aggregation areas in the Yellowstone River during spring and early summer that may indicate potential spawning areas. A female pallid sturgeon was captured in the Platte River on May 3, 2001 (E. Peters, University of Nebraska,pers. comm. 2001). While surgically implanting a transmitter in order to track the fish,Peters determined that it was gravid, containing eggs that were ready to be spawned. Kallemeyn(1983)reported that pallid sturgeon males reach sexual maturity at 53.3 to 58.4 cm. Keenlyne and Jenkins (1993)that sexual maturity for males is reached at 5 to 7 years. They estimated that females are 9 to 12 years old before egg development begins and first spawn may not occur until age 17 or older. Both males and females probably do not spawn annually (Keenlyne and Jenkins 1993). Observations of pallid sturgeon at Gavins Point NFH suggest that males could be induced to spawn annually, but females would likely be able to spawn once every 3 to 7 years or more (H. Bollig, Service, pers. comm. 2000). Time of pallid sturgeon sexual maturity and the length of intervals between spawning is likely influenced by available prey, environmental conditions, and other factors. Keenlyne et al. (1992) estimated fecundity for a female pallid sturgeon taken from the upper Missouri River. They found the mass of mature eggs weighed 1,952 g, which represented 11.4 percent of total body weight. Total fecundity for the individual was estimated at 170,000 eggs. Very little information is available describing pallid sturgeon spawning cues or requirements. Initiation of pallid sturgeon spawning migrations has been associated with seasonal spring flow differences in rivers (Peterman 1977, Zakharyan 1972, Gilbraith et al. 1988). In the controlled environment at Gavins Point NFH, the highest survival of pallid sturgeon larvae has been observed when spawning is conducted in the third week of June. Eggs held at 14°C generally hatch 8 to 10 days after spawning (H. Bollig, Service,pers. comm. 2000). Experiences have indicated that ideal spawning temperatures in the hatchery environment range from 15.5 to 18.5°C immediately prior to the spawning(S. Krentz, Service,pers. comm. 2001). Pallid sturgeon have adhesive eggs, so spawning in the wild is thought to occur over hard substrates of gravel or cobble with moderate flow(R. Sheehan, SIUC, pers. comm. 2001). Habitat Forbes and Richardson(1905), Kallemeyn(1983), and Gilbraith et al. (1988) describe pallid sturgeon as being well adapted to life on the bottom in swift waters of large, turbid,free-flowing rivers. Pallid sturgeon evolved in the diverse environments of the Missouri and Mississippi Rivers. Floodplains, backwaters, chutes, sloughs, islands, sandbars, and main channel waters formed the large-river ecosystem that provided macrohabitat requirements for pallid sturgeon and other native large-river fish. These habitats were historically in a constant state of change. Mayden and Kuhajda(1997) describe the natural habitats to which the pallid sturgeon is adapted Mr. Timothy Carey 26 as--braided channels, irregular flow patterns, flooding of terrestrial habitats, extensive microhabitat diversity and turbid waters. Today, these habitats and much of the once functioning Missouri River ecosystem has been changed by human developments. Below Omaha,Nebraska, ecological effects of Missouri River mainstem dams are gradually moderated to a degree by in-flowing tributaries. For example, the Missouri River channel bed below Gavins Point Dam has degraded about 9-10 feet, severing floodplain functions. However, degradation ceases just above the lower Platte River near Omaha, likely influenced by Platte River sediment and inflows. Flooding in the Missouri River floodplain is most prevalent from the mouth of the Platte River downstream to the Kansas border, due to Missouri River flows, inflows of the Platte River and other tributaries, or a combination of both, and because of a narrow channel and levees. The historic floodplain habitat of the Missouri and Mississippi Rivers served important functions for the native large-river fish. Floodplains were the major source of organic matter, sediments and woody debris for the mainstem rivers when floodflows crested the rivers' banks. The transition zone between the vegetated floodplain and the main channel included habitats with varied depths described as chutes, sloughs, or side channels. The chutes or sloughs between the islands and shore were shallower and had less current than the main channel. These areas provided valuable diversity to the fish habitat and probably served as nursery and feeding areas for many aquatic species (Funk and Robinson 1974). The still waters in this transition zone allowed organic matter accumulations, important to macroinvertebrate production. Both shovelnose sturgeon and pallid sturgeon have a high incidence of aquatic invertebrates in their diet (Carlson et al. 1985; Gardner and Stewart 1987). Floodflows connected these important habitats and allowed fish from the main channel to utilize these habitat areas to exploit available food sources. Bramblett(1996)noted that because macrohabitats utilized by pallid sturgeon were more specific and restrictive than those of shovelnose sturgeon, features in these macrohabitats may be more important to pallid sturgeon than to shovelnose sturgeon. He found that macrohabitats used by pallid sturgeon were diverse and dynamic. For example, pallid sturgeon used river reaches with sinuous channel patterns and islands and alluvial bars which generally have more diversity of depths, current velocities, and substrates than do relatively straight channels without islands or alluvial bars. The diversity of channel features such as backwaters and side channels also was higher. The subclimax riparian vegetational series in these areas are indicative of a dynamic river channel and riparian zone (Johnson 1993). Pallid sturgeon substantially use the downstream edges of alluvial bars (Snook 2001). Habitats frequently used were generally characterized by sharp changes in depth. Individual fish used the same length of bar edge repeatedly, and held on this type of habitat for several weeks at a time. Sheehan et al. (1998) found during middle Mississippi River telemetry studies, that pallid sturgeon exhibited positive selection for main channel border and downstream islands tips, depositional areas between wingdams, and deep holes off of wingdam tips. This seems to correlate well with findings of Carlson et at (1985). Sheehan et al. (1998) speculated that between wingdam areas and downstream island tips may be used as velocity refugia and/or feeding stations. Mr. Timothy Carey 27 Pallid sturgeon are most frequently caught over a sand bottom, which is the predominant bottom substrate within the species' range on the Missouri and Mississippi Rivers. Constant et al. (1997) found that pallid sturgeon spend considerable time associated with sand substrates, and noted that preference for sand substrates in low slope areas suggests that pallid sturgeon use such areas as current refugia(e.g., utilize sand-wave troughs created as bed-material moves along the river bottom). Snook(2001) and Bramblett(1996) found that pallid sturgeon select for sandy substrates, particularly sand dunes and avoid substrates of gravel and cobble. Movements Movements of 15 radio-tagged pallid sturgeons were monitored in the Missouri River below its confluence with the Yellowstone River during the period 1992-1994. All 15 pallid sturgeon moved into the Yellowstone River during April, May, or June of each year. During such times, median discharge in the Yellowstone River tripled, and was significantly higher than in the upper Missouri River. Yellowstone River turbidity values were more than 20 times greater than those in the Missouri River during these times (Bramblett 1996). The home range of the individual fish tracked in Hurley's study ranged from 0.97 to 97.04 kilometers, with a study mean of 34.12 kilometers. The home range of each sturgeon in Bramblett's (1996) study was from 7.7 to 205.3 miles (12.4 to 330.4 kilometers). Studies of diel movement patterns performed by Erickson(1992) in Lake Sharpe, South Dakota, and Hurley (1996) in the middle Mississippi River produced dissimilar results. It appears that across their range, pallid sturgeon would exhibit different diel movement patterns (Hurley 1996); however, no explanation for this phenomenon has been extended. The USGS (DeLonay and Rabeni 1998) is conducting a project developing biotelemetry methods and habitat assessment capabilities to document movement and habitat use of large-river fishes in the lower Missouri River. Pallid and shovelnose hybrid sturgeon have been tracked using surgically implanted ultrasonic transmitters. Preliminary findings show that pallid sturgeon move long distances in relatively short periods of time. Pallid sturgeon moved distances greater than 25 miles downstream and greater than 15 miles upstream per day, while they exhibited maximum seasonal movements of greater than 75 river miles. During all seasons, pallid sturgeon used locations of high current velocity (0.5 - 1.5 m/sec) at the channel margin, near sand islands and.off the ends of wing deflectors, usually over a sand substrate. Depth at location ranged from less than 1 to 9 meters. Food Habits Carlson et al. (1985) reported that both shovelnose sturgeon and pallid sturgeon have a high incidence of aquatic invertebrates in their diet; however, the pallid sturgeon had a greater proportion of fish(mostly cyprinids) than did shovelnose. Other researchers also reported a higher incidence of fish in the diet of the pallid sturgeon than in the diet of shovelnose (Held 1969). Although pallid sturgeon are assumed to consume larger numbers of fish than shovelnose, most piscivorous Missouri River species eat large quantities of aquatic insect larvae in early life and even as adults (Modde and Schmulbach 1977). Given their adaptations for non-visual feeding,turbidity would appear to play an important role in feeding success. Modde and Schmulbach (1977) found that pallid sturgeon could be expected to forage efficiently for fish and benthic invertebrates in highly turbid areas. Mr. Timothy Carey 28 A large pallid sturgeon adult and numerous shovelnose sturgeon were observed on video tape feeding in relatively clear water in the tailrace of Fort Peck Dam on the Missouri River in Montana. The large adult pallid sturgeon"stood on its fins" in a stationary position allowing food organisms to wash with the current beneath it(S. Krentz, Service, pers. comm. 1994). During April of 1999, adult pallid sturgeon were collected near the mouth of the Yellowstone River. Several adult pallid sturgeon were observed with larger(greater than 6 inches) food items distending the abdomen. Upon closer examination, one of the pallid sturgeon was observed with a 9-inch long Goldeye (Hiodon alosoides)protruding into the mouth cavity (S. Krentz, Service, pers. comm. 1999). Population Size Since 1988,pallid sturgeon researchers have collaborated on studies to gather information about the species including estimates of fish numbers (Keenlyne 1995). This collaboration has allowed workers to identify where populations still remain and to obtain rough estimates of present abundance of the species. Population size in the upper Missouri River basin above Gavins Point Dam is estimated to be between 325 and 550 adult fish, with an aging population and no indication of recruitment at that time (Duffy et al. 1996). Subsequently, Kapuscinski (2003) estimated the pallid sturgeon population in RPMA#2 (the Missouri River between Fort Peck Dam and the headwaters of Lake Sakakawea, and the lower Yellowstone River) at 151 adult fish, down from 255 adult fish in 1991. Obtaining estimates of current abundance in the channelized Missouri River downstream from Sioux City, Iowa, to the mouth and the Mississippi River downstream from the mouth of the Missouri River is complicated by the difficulties of sampling rapidly flowing river sections. Abundance estimates for these parts of the range by Duffy et al. (1996) were not considered reliable due to the lack of mark/recapture data. Glen Constant, at Louisiana State University, estimated the pallid sturgeon population in the Atchafalaya River to range from 2,750 to 4,100 fish(Duffy et al. 1996). This estimate is based on tag returns and telemetry studies. However, a high incidence of hybridization is occurring in the Atchafalaya River and Mississippi Rivers (Keenlyne et al. 1994). This makes estimation of the number of pure pallid sturgeon in these river systems difficult(Duffy et al. 1996). Population Variability and Stability Sturgeons generally are K-strategists, a term used to describe species exhibiting slower development, delayed and repeated reproduction, larger body size, greater individual competitive ability, relatively low mortality rates, and long life spans. Because of this combination of life history traits,pallid sturgeon have a relatively low capacity for population increase (Boreman 1997). Mr. Timothy Carey 29 Occurrence of pallid sturgeon captures in fishery surveys of the upper Missouri River main stem reservoirs has sharply declined since the early 1950s. Range-wide, only three collections of young pallid sturgeon have been documented in recent years--in 1998, South of Cape Girardeau in the middle Mississippi River(Peterson and Herzog 1999); in 1998 and 1999, at Lisbon Chute in the lower Missouri River(J. Milligan, Service, pers. comm. 2001); and in 2002, in the upper Missouri River below Fort Peck Dam (Pat Braaten, USGS,pers. comm. 2003). This low rate of capture may be due to low reproductive success or inability of standard sampling gear to capture young pallid sturgeon. The lower Yellowstone River, in RPMA#2 is believed to exhibit high potential reproductive habitat for the pallid sturgeon. Linear regression of population declines indicate that the pallid sturgeon population in RPMA #2 will go extinct in 2018, but extirpation could occur sooner, as individuals reach an old-age threshold(Kapuscinski 2003). In addition, although larvae were collected in RPMA#2 in 2002, their post-hatch drift may carry them into the lentic waters of Lake Sakakewea,which does not provide the necessary habitat for rearing (S. Krentz, Service, pers. comm. 2003). In recent years, pallid sturgeon populations have been augmented by release of hatchery-reared fish. In 1994,the MDOC released approximately 7,000 fingerlings in the Missouri and Mississippi Rivers and an additional 3,000 fingerlings were stocked in 1997 (Graham 1997, 1999). Since stocking in 1994, approximately 86 pallid sturgeon returns have been reported, mostly in the Mississippi River downstream of St. Louis (Graham 1999). Thirty-five, 12-to 14-inch fish raised at Natchitoches NFH were stocked in the lower Mississippi River in 1998 (Kilpatrick 1999). Also in 1998, 745 hatchery-reared yearling pallid sturgeon were released at 3 sites in the Missouri River above Ft. Peck Reservoir(Gardner 1999). In 2002, a total of 1,540 juvenile pallid sturgeon, and in 2003, a total of 5,230 yearling pallid sturgeon, respectively; were stocked at various locations in the Missouri River below Gavins Point Dam. Despite stocking efforts,pallid sturgeon remain rare throughout their range, and low tag return rates have made it difficult to assess the success of the stocking program. Reasons for Listing and Continuing Threats Destruction and alteration of habitats are believed to be the primary cause of adverse effects on reproduction, growth, and survival of the pallid sturgeon. Six mainstem dams on the Missouri River block pallid sturgeon migration and have inundated spawning and nursery areas. These dams influence the remaining mainstem riverine habitat by reducing sediment and organic matter transport and deposition, reducing turbidity, reducing overbank flooding, causing channel bed degradation and flow modification, and altering water temperature through year-round cold water releases. Flow regimes, sediment transport dynamics, and floodplains of major tributaries in the lower Missouri River basin have been similarly altered as well. Sediment and discharge are the raw material and driving force, respectively, for habitat development in large floodplain rivers, such as the Missouri, Platte, and Mississippi. Before the Missouri River was channelized and impounded, it annually eroded 3.1 hectares/kilometer of its floodplain (Corps 1981). Erosion introduced organic matter and large woody debris from the floodplain, along with sediment in the form of rock, gravel, sand, silt, and clay. River impoundments have eliminated 60 to 80 percent of this material mainly due to sediment Mr. Timothy Carey 30 entrapment behind impoundments. The lack of sediment upset the natural channel equilibrium; sediment-poor water below dams removed sediment from the channel bed, causing channel degradation. Bed degradation has resulted in the loss of connection with shallow backwater areas of the floodplain, important nursery habitat for larval fish. Reduced turbidity below the dams is believed to adversely affect the pallid sturgeon by increasing predation on young fish by visual predators such as northern pike (Esox lucius) and walleye (Stizostedion vitreum). It also is suspected that decreased turbidity has affected prey availability and vulnerability to sturgeon predation. Operations of mainstem Missouri River dams and numerous reservoirs on tributaries have greatly altered the seasonal and daily hydrograph throughout the Missouri River basin. Before the reservoirs, peak runoff periods in the Missouri River basin generally occurred in March-April and May-June. Today, this hydrograph is opposite of the natural cycle, with reduced flows from April to July and increased flows from July to April. The lower Missouri River gradually regains some elements of the natural flow regime due to inflowing unregulated tributaries. Elements of the natural hydrograph are essential for many life requirements of native large-river fish like the pallid sturgeon. Hesse and Mestl (1993) showed significant negative relationships between indices of river discharges due to flood control actions in the spring and year-class development for a number of fish in the Missouri River. Although the sample size of pallid sturgeon was too small to model, a clear relationship was present between poor year-class development in most native species studied and the present artificial hydrograph. In addition to shifts in the seasonal hydrograph, operation of the mainstem dams causes water level fluctuation between mainstem reservoirs as great as 6 feet, disrupting macroinvertebrate communities and larval fish by de-watering backwater areas at rates not found naturally. Channelization, channel stabilization, and snag removal for navigation have reduced important habitat features for pallid sturgeon and food production. Snags influenced erosion and deposition, creating pools, gravel bars, and depositional areas. Snags also provide habitat for aquatic insects. From Sioux City, Iowa, to its mouth, the Missouri River has been changed from a diverse assemblage of braided channels to a single narrow channel of rather uniform width and swift current(Funk and Robinson 1974). The middle Mississippi River from the mouth of the Missouri River to the mouth of the Ohio River has been extensively altered due to channel modification. Channel modifications on the lower Mississippi River from the Ohio River confluence to near the Gulf of Mexico also have eliminated major natural floodways and reduced the floodplain by 90 percent (Fremling et al. 1989). Sport and commercial harvest probably contributed to the decline of the pallid sturgeon. Historically, pallid, shovelnose, and lake sturgeon(Acipenser fulvescens) were commercially harvested on the Missouri and Mississippi Rivers (Helms 1974). Combined harvests (all sturgeon species) as high as 430,889 pounds were recorded in the Mississippi River in the early 1890s, but declined to less than 20,062 pounds by 1950. Today, some mortality still occurs from both sport and commercial fishing activities. Mr. Timothy Carey 31 In January of 1999, a previously unknown iridovirus was detected in shovelnose sturgeon being held at Gavins Point NFH. Subsequently,the virus was detected in pallid sturgeon being held at Valley City NFH. The virus appears to affect primarily young-of-the-year fish. Very limited mortality was observed, and available evidence indicates that surviving fish may recover completely. The origin of the virus in the hatchery system is as of yet unknown,but it likely occurs naturally in the Missouri River system(H. Bollig, Service, pers. comm. 2001). In addition, in July of 2001, the Blind Pony State Fish Hatchery near Columbia, Missouri, lost the entire year's production of pallid sturgeon young to what is believed to be a herpes virus (S. Krentz, Service, pers. comm. 2002). Although more information is needed, pollution is a likely threat to the pallid sturgeon over much of its range. Various fish-harvest and consumption advisories exist or have existed as a result of human-caused pollution from near Kansas City, Missouri, to the mouth of the Mississippi River. Polychlorinated biphenyls, cadmium, mercury, and selenium have been detected at elevated concentrations in tissue of three pallid sturgeon collected from the Missouri River in North Dakota and Nebraska. Detectable concentrations of chlordane, DDT (including its metabolites), and dieldrin also were found. The prolonged egg maturation cycle of the pallid sturgeon, combined with an inclination for certain contaminants to be concentrated in eggs, could make contaminants a likely agent reducing reproductive success. Carlson et al. (1985)suggested that hybridization had occurred between pallid sturgeon and shovelnose sturgeon in the Missouri and middle Mississippi Rivers. Suspected hybrids also have been reported in commercial catches on the lower Missouri River. Early research (Bailey and Cross 1954) did not report hybrids, suggesting hybridization is a recent phenomenon resulting from human-induced environmental changes (Carlson et al. 1985). Such changes include reduced habitat availability and spawning cues due to water impoundments in the Missouri River basin. BALD EAGLE Species Description The bald eagle is a large, long-lived bird of prey. Adults have dark-brown bodies, white heads, and white tails. This adult plumage is not acquired until age four at the earliest. Juveniles go through a series of plumages prior to achieving the adult coloration and in some plumages the young bear a superficial resemblance to golden eagles (Aquila chrysaetos). Life History The bald eagle may live up to 45 years, achieve sexual maturity at 4 to 5 years, and produce one to three young per year. Publications by the Corps (1979), Lincer et al. (1979), Brown and Amadon (1968), and U.S. Bureau of Land Management (1973)provide references on the biology of the species. Survival of individual eagles,particularly those in their first year of life, probably depends heavily on conditions they encounter during the wintering period. The physiological condition of adults at the beginning of each breeding season, an important factor influencing reproductive success, also is affected by how well their energy demands are met in wintering areas. Thus,the survival and recovery of nesting populations depends on the eagles having suitable locations to use throughout the wintering period each year(Service 1983). Mr. Timothy Carey 32 Bald eagles winter throughout the United States, but are most numerous in the west and midwest (Service 1983). Winter habitats typically provide an abundant, readily available food supply in conjunction with one or more suitable night roost sites. Bald eagles prefer to forage in areas with the least human disturbance (Service 1978; McGarigal et al. 1991). The majority of wintering bald eagles are found near open water where they feed on fish and waterfowl, usually taking those which are dead, crippled, or otherwise vulnerable (Service 1983; Lingle and Krapu 1986; Stalmaster and Associates 1990). In addition, bald eagles feed on carrion, small mammals, and game birds (Lish 1975, U.S. Bureau of Reclamation 1981, Lingle and Krapu 1986). Lingle and Krapu(1986) found eagles consumed at least 50 species of fish, birds, and mammals along the North Platte and Platte Rivers during the winters of 1978-1979 and 1979-1980. During migration and at wintering sites, bald eagles that concentrate on locally abundant food tend to roost communally. Communal roosts usually are located in stands of mature old growth conifers or cottonwoods in sheltered areas which provide a more favorable thermal environment and help minimize the energy stress encountered by wintering eagles. Communal roosting also may facilitate food-finding(Steenhof 1976) and pair bonding. The proximity of adequate night roosts to the other habitats required by wintering eagles, such as hunting perches and feeding sites, is important(Steenhof et al. 1980). In some locations, the absence of a suitable night roost may limit the use of otherwise suitable habitat. Freedom from human disturbance also is important in communal roost site selection(Steenhof et al. 1980, U.S. Bureau of Reclamation 1981, Buehler et al. 1991). Continued human disturbance of a night roost may cause eagles to abandon an area(Hansen et al. 1981, Keister 1981). Population Dynamics Although eagle population studies have revealed that both reproduction and survival are important, changes in survival rates seem to have more effect on the population than similar changes in reproduction rates (Grier 1980). Hypothetical population modeling indicates it is possible for eagle populations with lower reproduction but adequate survival to do better than other populations with higher reproduction but poor survival. Adult eagles must prepare themselves for the next breeding season, and subadults and immature eagles must survive stressful environmental conditions. Therefore, maintaining and/or improving winter survival is crucial to eagle recovery (Service 1978, 1983). Status and Distribution The bald eagle (Haliaeetus leucocephalus) is listed as threatened in the 48 conterminous United States. Nebraska fails within the area of the Northern States Bald Eagle Recovery Plan (Service 1983). The primary objective in this area is to reestablish self-sustaining populations of eagles in suitable habitat throughout the Northern States Region. Loss of suitable habitat, mortality from shooting, trauma,poisoning, diseases, electrocution, and other causes, and reduced reproduction caused by environmental contaminants are the most important causes of bald eagle population decline. Mr. Timothy Carey 33 The decline in nesting populations during the 20th centwy has been attributed to habitat loss, environmental contamination, electrocution, shooting, poisoning, and trapping (Service 1983). Numerous instance of bald eagle and golden eagle poisoning are caused by unlawfully use of pesticides and other chemicals for predator control. By the late 1960s, the pesticide Dichloro-diphenyl-trichloreothane (DDT) and its metabolites had caused widespread reproductive failures and resulted in drastic decreases in eagle numbers continent-wide (Sprint et al. 1973, Wiemeuyer et al. 1972). Other contaminants such as polychlorinated biphenyls and heavy metals such as mercury and lead may contribute to increased eagle mortality in some areas, although the impact of DDT and other contaminants on eagles in Nebraska has not been quantified. No nests were recorded in Nebraska for approximately 100 years. Secondary poisoning of eagles from eating lead-poisoned prey, particularly ducks and geese, was a concern in the early 1980s by Pattee and Hennes (1983). Of 650 eagles sampled,they reported that 7.2 percent likely died from lead poisoning. Their field evaluations in Missouri and Minnesota found 9 to 11 percent of digested eagle pellets contained lead shot. However, Lingle and Krapu(1988) found in a wintering eagle study (1978-1980) in Nebraska that cast pellets contained a small percentage (0.3 percent)of lead shot. Due to the use of nontoxic shot being phased in during the 1980s and now required across the nation, the potential for eagles to suffer ill effects or death from lead shot ingestion has likely decreased. Loss of bald eagle habitat due to land development and increasing human populations is a serious problem in some areas (Service 1983). Increased human activity and various land developments can adversely affect the suitability of breeding and wintering habitats (Juenemann and Frenzel 1972, Lish 1975, Grubb and King 1991). Although actions or developments that detrimentally affect separate areas may not appear to be jeopardizing the species,the cumulative effect of many seemingly unimportant actions could be deleterious to bald eagles (Service 1983). Despite localized problems, bald eagle nesting activity in the Northern States Recovery Region has followed an improved national trend. Nesting in the Northern States Recovery Region doubled in the past 10 years, from less than 700 to over 1,400 occupied territories. WESTERN PRAIRIE FRINGED ORCHID The western prairie fringed orchid was listed as a threatened species on September 28, 1989 (57 FR 39863). Unless otherwise noted, the following information is from the Platanthera praeciara (western prairie fringed orchid) recovery plan(Service 1996). Species Description The western prairie fringed orchid is a smooth, erect, 2-to 4-foot tall perennial species of terrestrial and palustrine communities in the North American tallgrass prairie biome. The two to five elongated leaves are hairless and thick. The open, spike-like inflorescence bears up to two dozen showy, 1-inch wide, white flowers. Mr. Timothy Carey 34 Life History The western prairie fringed orchid is most often found on unplowed, calcareous prairies and sedge meadows, but has been observed at disturbed sites in successional communities (e.g., roadside ditches, borrow pits, and old fields). The fringed orchid occurs in several kinds of fire- and grazing-adapted communities dominated by graminoid (grassland) species. Tallgrass prairies generally are dominated by big bluestem (Andropogon gerardii), little bluestem (Schizachyrium scoparium), and Indian grass (Sorghastrum nutans), with switchgrass (Panicum virgatum) and tufted hairgrass (Deschampsia caespitosa) common associates in wetter sites. These prairies generally support a great variety of perennial and annual grasses and forbs with few shrubs unless fire or grazing is suppressed. The fringed orchid generally occurs within the wetter areas of such prairies or in associated sedge meadows. Sedge meadows occur in seasonally hydric to wet-mesic conditions and are dominated by perennial cyperaceous tan, especially sedges (Carex spp.) and spikerushes (Eleocharis spp.). A variety of perennial and annual grasses and forbs also occur in this community type, with shrubs becoming increasingly more prevalent northward. Root systems of all Platanthera species are fusiform tubers that regenerate during the growing season by forming a new tuber and a perennating bud, which give rise to vegetative shoots the following season, the major mode of perpetuation of established populations. Infrequently these buds may form multiple tubers that subsequently may become isolated from the parent plant (Bowles and Duxbury 1986, Currah et al. 1990). Vegetative shoots develop from a perennating bud and emerge from the soil in the late spring after a period of soil warming, generally from early May in the south to late May in the north. Two months of vegetative growth may pass before full development of the inflorescence. Plants bloom from mid-June in the south to late July in the north. Reproductive success, survivorship, and mortality may be limited at several stages in the life cycle of the fringed orchid (Bowles and Duxbury 1986, Service 1996). Fruit production probably is pollinator limited. Seedling establishment may be linked to edaphic factors controlling soil mycorrhizae, the availability of suitable microhabitats, and competition. Status and Distribution The western prairie fringed orchid was distributed historically throughout much of the western Central Lowlands and eastern Great Plains physiographic provinces of the central United States (Lobeck 1957) and Interior Plains in extreme south-central Canada(Brownell 1984). Comparison of the historic and extant ranges shows that the species has apparently been extirpated from South Dakota, with significant reductions in counties of occurrence in Missouri, Iowa, southeastern Kansas, and eastern Nebraska. Historic(observed prior to 1970 and/or confirmed destroyed), presumed extant (observed since 1970), and unverified reports exist for more than 203 sites in 109 counties in eight States and one Canadian province. Extant populations of the fringed orchid occur at 175 sites in 42 counties in 6 States--Iowa(15 counties),Kansas (7 counties), Minnesota(9 counties), Missouri(3 counties), Nebraska(6 counties),North Dakota (2 counties), and in the Canadian Province of Manitoba. Mr. Timothy Carey 35 The western prairie fringed orchid has declined significantly throughout its historical range largely due to habitat loss and degradation (Freeman and Brooks 1989). Conversion of prairies for row crops, fire suppression, haying, and land development are factors which contributed to the species' decline. Five Kansas populations are known or assumed to have been destroyed due to conversion of prairies for agriculture; three of these since 1969. Fire suppression was a factor in the establishment of shrubby vegetation at two sites in the Nebraska sandhills where the western prairie fringed orchid formerly occurred. Shading by the shrubbery may have contributed to the elimination of these populations. Annual mowing of prairies for hay is a common practice in Kansas, Nebraska, and South Dakota. This practice,which typically occurs prior to the maturation of the fringed orchid's fruits, may have contributed to the decline of the species. Stream channelization and draining of seasonally wet prairies in the Nebraska and South Dakota sandhills probably adversely impacted the species by altering the hydrologic regime. In most instances, channelization and draining was done to permit reliable access to wet prairies for hay. Other agricultural practices, such as grazing and herbicide use, also may have impacted the species. The fringed orchid recovery team recognizes the destruction of fringed orchid habitat for cropland as the single most irreversible threat to the species (Service 1996). It is likely that this threat varies from site to site, depending on local climate, groundwater hydrology, and soil characteristics. ENVIRONMENTAL BASELINE The environmental baseline provides an analysis of the effects of past and ongoing human and natural factors leading to the current status of the species, its habitat, and ecosystem, within the action area. Much of the information on the existing habitat conditions pertain to all four listed species; therefore, before describing the status of each species in the action area, we present general habitat-related baseline information on vegetation,hydrology, and prey base populations. HYDROLOGY AND SEDIMENT TRANSPORT BASELINE The effects to the Platte River system from water development are extensive. The Platte River basin is one of the most highly developed river basins in the United States in terms of the amount of water stored and diverted compared to the total annual flow(USGS 2000, as cited in U.S. Department of Interior(DOI)2003). A thorough and detailed description on the habitat baseline of the Platte River changes to hydrology can be found in DOI (2003). Here we present a summary of the baseline from that document. The Platte River in Nebraska before the 1880s was a broad and braided river subject to high spring floods, great loads of sediment, and occasional summer droughts. These conditions caused continuous movement of the braided river channels and sandbars, resulting in a very broad, shallow, sandy, and generally unvegetated river channel (Murphy et al. 2004). The following changes affect the listed species within the action area: Mr. Timothy Carey 36 1. Annual Flow Volume. Storage of water in reservoirs has decreased the amount of water flowing in the Platte River System. Total storage in the basin currently equals about 7.5 million af, which is about 13 times the average annual flow of the Platte River at Brady, Nebraska, and about 6 times the average annual flow in the central Platte River at Grand Island,Nebraska(Service 1997). The net consumptive use approximates 2.4 million af annually. Average annual flow volume at Grand Island has been reduced by approximately 50 percent from pre-development levels to 1.4 million af(DOI 2003). 2. Size of Peak Flows. During the period 1902-1909,the average annual Platte River peak flow (i.e., the average of the annual maximum of mean daily flows) at North Platte was 20,500 cfs and the mean annual flow rate was 2,900 cfs (Stroup et al. 2001). Water resource development projects in the Platte River basin captured the high spring flows and flattened the natural hydrograph. After 1940 and the completion of several large reservoirs,peak flows at North Platte, Nebraska, seldom exceeded 5,000 cfs. 3. Relative Magnitude of Spring vs Summer Flows. The natural Platte River hydrograph had two annual high flow periods--one in February and March in response to snow melt on the Plains, and the second in May or June caused by snowmelt in the mountains. As the construction of reservoirs in the basin increasingly captured more of the high spring flows the magnitude of the high spring flows (and potential height of sandbars)was reduced relative to the summer thunderstorm event flows, increasing the incidence of sand bar inundation (Murphy et al. 2004). This effect results in a decreased amount of sandbar breeding habitats for least terns and piping plovers that are protected from inundation from summer thunderstorms. 4. Sediment Transport. An estimated 4.25 million tons of sediment are trapped annually behind reservoirs on the North Platte and South Platte Rivers (Simons and Associates 2000). Overall,the sediment supply to the central reach of the Platte River has been reduced by over 80 percent(Simons and Associates 2000). The quantity and type of sediment carried by a river have a significant effect on the shape and character of the river corridor and, in turn, impact habitat parameters important to the species addressed in this biological opinion. A reduction in flow or sediment supply resulting from storage reservoirs and water diversions produces a corresponding reduction in sediment transport capacity. Abrupt changes in river flow also impact sediment transport, creating areas of erosion or deposition. The Platte River flow is changed by water diversions and canal returns, causing sediment to be deposited on the channel bed (aggradation) in some reaches and eroded (degradation) from other reaches (DOI 2003). 5. Distribution of Sediment. Abrupt changes in river flow also impacts sediment transport, creating areas of erosion or deposition. Much of the South Platte River's sediment load is deposited in the reach between the Korty Diversion Dam and Paxton,Nebraska, and much of the load carried by the main river at the City of North Platte is deposited between the cities of North Platte and Lexington, Nebraska. Although sediment is dredged from both canals and redeposited below the points of diversion, the reduced flows downstream of the diversion Mr. Timothy Carey 37 points are insufficient to transport the sediment load (DOI 2003). Consequently, these river reaches have aggraded. Dense vegetation that has invaded much of the original river channel may have exacerbated aggradation. 6. Channel Incision. Most of the water within long reaches of the North Platte and Platte Rivers is diverted into canals that parallel the river. Based on recent measurements the channel below the J-2 Return has incised 15 to 18 feet since the 1940s. Field surveys and sediment modeling indicate that bed degradation downstream of the J-2 Return prevails under the present conditions. Over the 13-year period between measurements, incision was approximately 6 feet immediately downstream from the J-2 Return Canal, and 2.5 feet of incision 18 miles downstream (Murphy et al. 2004). 7. Sediment Grain Size. The median grain size in the central reach of the Platte River has doubled since the pre-development period (Simons and Associates 2000; Murphy et al. 2004). Historically, median grain sizes at Kearney and Grand Island were similar, 0.35 mm and 0.40 mm,respectively (Murphy et al. 2004). Today, river sediment has coarsened significantly in the western upstream reach of the central Platte River, with median grain size at Overton increasing to 1.0 mm. The effect has only partially reached Grand Island where the median grain size has increased to 0.65 mm. (DOI 2003). The increase in grain size represents an eroding bed and decreases the mobility of that river bed which, in turn, contributes to the evolution of a narrower and deeper channel shape. 8. Channel Width. Reductions in flow and the supply of medium-grain sand to the central Platte River has resulted in vegetation encroachment and a narrower river. As river flow and sediment load decrease the width of channel that is inundated is decreased along with the regular shifting of sand. Vegetation is then able to colonize the area of the channel that is no longer regularly inundated and active. Channel widths in many areas have been reduced to 10 to 20 percent of their former size due to reduced sandbar scouring and shifting of alluvial sediments. 9. Vegetation. Encroachment of woody vegetation across the formerly wide expanses of the active alluvial river bed are described by Williams (1978), Eschner et al. (1983), Sidle et al. (1989), Peake et al. (1985), Johnson(1994, and 1996), McDonald and Sidle (1992), and Currier (1995 and 1996), Simons and Associates (2000), Murphy et al. (2004), and DOI (2003). Much of the former river channel is presently dominated by riparian woodland. These changes are documented in more detail below. STATUS OF PREY POPULATIONS The altered hydrology described above has impacted populations of prey items used by the listed species in the action area. The reduction of flow from existing water depletion results in elevated water temperatures during summer, which adversely affects the forage fish community (Dinan 1992). Fish kills reported in 6 of 9 years in the central Platte River are attributed to low flows and elevated water temperatures. Forage fish used by least terns and bald eagles in the central Platte River are likely negatively impacted by depletions below 1,200 cfs from Mr. Timothy Carey 38 February 1 through September 15, and below 1,000 cfs from September 15 through January 31. Flows are below the 1,200 cfs level 33 percent of the time, and below the 1,000 cfs level 48 percent of the time. PLATTE RIVER HABITAT BASELINE Maps of the Fort Kearney to Grand Island area produced in 1847 indicate extensive areas of wetlands, "sloughs," and "bayous" in the Platte River valley. However, in the past century, both springtime discharges and wet meadow acreage have decreased substantially(Williams 1978; Currier et al. 1985, Sidle et al. 1989). Between 1938 and 1982, approximately 112,800 acres (55 percent) of wet meadow habitat along the Platte and North Platte River valleys were converted to other uses; the valleys continue to exhibit a downward trend (Sidle et al. 1989). Groundwater levels in the central Platte River valley help maintain about 11,330 acres of remaining wetland meadow habitat(Sidle et al. 1989), or about 4.8 percent of the area of the Platte River valley near the river. However, the effective habitat value of remaining wetland meadows is further reduced due to the small size and discontinuity (fragmentation) of the parcels. As a consequence of a reduction in base flow and magnitude of spring discharges during the past 80 years, woody vegetation has increased dramatically along the Platte River. These altered hydrologic conditions have resulted in a narrower, more entrenched river channel, and have substantially reduced the occurrences of overbank flooding and scouring that naturally eliminate woody vegetation from the stream channel and its floodplain. The result has been the development and encroachment of a woody riparian vegetation community along an increasingly narrow river channel. Presently, much of the former river channel is dominated by woodlands and surrounded by croplands. Dams have dramatically reduced the amount of alluvium reaching the central Platte (Lyons and Randall 1988). The 62-mile reach from the confluence of the North and South Platte Rivers to the Johnson 2 Hydropower Return(J-2 Return) near Lexington, Nebraska, is no longer used by whooping cranes and is unsuited for least tern or piping plover nesting. The 37-mile reach from the J-2 Return to Kearney, Nebraska, also is heavily forested, and migratory birds requiring open alluvial habitats are abandoning this reach. Most of the remaining open alluvial habitat of the central Platte River is located in short segments of the 40-mile reach between Kearney and Grand Island, Nebraska. Channel incision and bed material coarsening associated with channel narrowing are indicative of sediment starvation. Lyons and Randle(1988) estimated that sediment transport past Overton and Grand Island from 1958 to 1986 equaled 698,000 and 706,000 tons per year,respectively. Maintenance of these sediment loads requires a significant sediment supply. Instead, roughly 60 percent of the annual flow at Overton is sediment-free discharge from the J-2 Return. Upstream of the J-2 Return, flow diversions interrupt sediment movement through the system and impair new sediment import into the central Platte River. Under current conditions, bank erosion is relatively minor (Corps 1989), so some of the sediment transported from the central Platte River system is likely coming from the channel bed. Randle and Woodward(1991) suggested that the channel bed is coarsening as the finer sediment is removed, and that reduced sediment loads are an important cause of channel narrowing. The Mr. Timothy Carey 39 Federal Energy Regulatory Commission(1994) concluded that, coupled with bed material coarsening, the observations of sediment loads past Overton and Grand Island indicate there is a continued tendency for channel incision in the Platte River. SUMMARY The net effects of water development and the other various actions comprising the environmental baseline include continued and increased consumption of Platte River basin water resources, continued trapping of sediment behind dams and deteriorated sediment transport processes, degradation of habitats by expansion of bank stabilization efforts, expanded destruction of habitats by sand and gravel mining operations, increased conversion of native grasslands to other uses, increased human disturbance in habitats resulting from conversion of abandoned sand and gravel pits to "lakeside"housing developments, and high incidences of predation on terns and plovers exacerbated by existing and continuing habitat degradation. Arresting habitat loss and enhancement of the existing, severely degraded Platte River ecosystem are necessary for the continued existence of the whooping crane, least tern, piping plover, and pallid sturgeon. The severity and extent of habitat degradation and destruction existing within the Platte River valley ecosystem has resulted principally from development of Platte River basin water resources. Given the current Platte River habitat conditions and the precarious population status of each of these four species, the Service concludes that the survival and recovery of these species cannot be ensured under deteriorating environmental conditions. STATUS OF THE SPECIES WITHIN THE ACTION AREA Whooping Crane The Platte River plays a key role in providing habitat roughly mid-way along the whooping crane's migration route. The river is strategically located along the migratory route to provide necessary secure sites and foraging habitat mid-way through the trip. Whooping cranes use the Platte River during spring (March 23 through May 10) and fall (October 1 through November 15) migrations. More sightings of whooping cranes are reported from Nebraska than from any other State or province in the migration corridor(Allen 1952). Spring sightings are more common along the central Platte River than any other habitat area(U.S. Fish and Wildlife Service Cooperative Whooping Crane Tracking Project, unpublished data). Because an estimated 83 percent of whooping crane mortality occurs during migration and nesting, the presence of protected migration habitat is essential in conserving the species. The Whooping Crane Recovery Team considers habitat modification as a mortality factor that affects loss of individuals and decline of the species; and that the key to whooping crane recovery and survival is reduction of mortality during migration(Service 1994a). Whooping cranes that use the Platte River during migration prefer roost sites in river channels that have a wide expanse of water and shallow, submerged, sandbars. Whooping cranes select the widest available channels (wider than 900 feet) where horizontal views are unobstructed by vegetation or channel banks. Channels less than 500 feet wide are seldom used. Usually, Platte Mr. Timothy Carey 40 River stopover sites are at least 0.25 mile from bridges, roads, and occupied dwellings. Upstream and downstream visibility at Platte River roost sites averaged 1.2 miles (Faanes 1992a). Numerous studies have confirmed that sandhill cranes acquire substantial fat reserves and calcium while staging along the Platte River(Krapu et al.1982, Krapu et al.1984, Reinecke and Krapu 1986, and Tacha et al. 1994). We anticipate that the Platte fulfills a similar role for migrating whooping cranes. During migration, whooping cranes forage in small-grain croplands, upland grasslands, and wetland habitat areas where they have been observed feeding on frogs, fish, crayfish, insects, plant tubers, and waste grains (Service 1981). A major part of the whooping crane's energy requirements during migration across the Great Plains probably comes from waste grain in agricultural croplands. Although the proportions of plant and animal food in the diet are not known, whooping cranes require animal matter to satisfy part of their nutritional needs for protein. In general,the foraging strategies of whooping cranes are more closely associated with wetland feeding habitats than are those of sandhill cranes (Johnsgard 1996). Whooping cranes using the Platte River for migration currently experience reduced habitat quality due to human-caused alterations of the system. Reductions of flows below 2,400 cfs during the whooping crane migration seasons adversely affect migration roost habitat. Currently, flow at Grand Island is below this level approximately 60 percent of the time during the spring migration period, and approximately 82 percent of the time during the fall migration period. Water depletions appreciably reduced migrational habitat by adversely altering the open channel roosting and wetland feeding habitats that whooping cranes require. The importance of maintaining traditional habitats such as the Platte River is amplified by the impacts from ongoing conversion of pothole and prairie to hay and grain production, which has made nearly all of the whooping crane's original migrational range unsuitable for use by the species (Service 1986). Whooping Crane Critical Habitat One of the five critical habitat units designated for the whooping crane lies within the action area. The migration corridor of the Aransas-Wood Buffalo whooping crane population in North America overlies the Platte River from the city of North Platte to just east of Grand Island, Nebraska. Within this reach, a 54-mile segment of the Platte River between Lexington and Shelton is designated as whooping crane critical habitat. Critical habitat along the central Platte River was officially designated as follows: "An area of land, water, and air-space in Dawson, Buffalo, Hall, Phelps, Kearny, and Adams Counties with the following boundaries:Platte River bottoms—a strip of river bottom with a north-south width 3 miles, a south boundary paralleling Interstate 80, beginning at the junction of U.S. Highway 283 and Interstate 80 near Lexington, and extending eastward along Interstate 80 to the interchange for Shelton and Denman, Nebr. near the Buffalo-Hall County line" (43 FR 20938). Mr. Timothy Carey 41 The following primary constituent elements were considered in making the critical habitat determination for the Platte River: (1) Nutritional Requirements--The Platte River bottoms provide a dependable source of food, water, and other nutritional or physiological needs for the whooping crane during spring and fall migrations. Insects, crayfish, frogs, small fish, and other small animals as well as some aquatic vegetation and some cereal crops in adjacent crop lands appear to be major items taken during the migration period. (2) Cover or Shelter--The Platte River generally provides whooping cranes with the required open expanse for nightly roosting. The availability of shallow, submerged sand and gravel bars in rivers and lakes appears to be one of the major factors determining whooping crane use of these habitats as roosting sites. Cranes observed during migration are most often found within short flight distances of these wetland areas. (3) Space for Normal Behavior--The Platte River provides needed isolation. Whooping cranes do not readily tolerate human disturbances. A human on foot, at distances of over Q.25 mile, can quickly put a crane to flight. Least Tern No nesting records for interior least terns exist within the action area in Wyoming or Colorado, but in Nebraska, the Platte River constitutes important habitat for the least tern. Along the Platte River, nesting occurs on riverine sandbars and aggregate mining operations from the Missouri River confluence upstream to the North Platte River. The NRC (2004) summarized that river channels were wider and sandbars higher along the lower Platte River, and that nesting habitat may be limited on the central Platte reach. Nesting has occurred along the shoreline of Lake McConaughy on the North Platte River, on sandpits along the South Platte River, and sandpit and riverine sites along the Platte River. Nesting also has occurred at riverine and/or sandpit sites along the Elkhorn, North Loup, and Loup Rivers. The presence of sand and gravel mining operations (sandpits) along the Platte River provides nest sites out of the active channel and, therefore, free from flooding hazard, though at the expense of increased predation. Unlike the piping plover, no comprehensive, or regularly scheduled rangewide census exists for the least tern. So, comparisons between years over broad areas should be viewed with caution. In 1996, 701 least terns (i.e., 69 percent of the total number of interior least terns counted in Nebraska that year) occurred in the Platte River Basin in Nebraska. Of these, 290 least terns were counted along the lower Platte River(Columbus,Nebraska, to confluence with the Missouri River). This represents 65 percent of the least terns on the North Platte, South Platte, and Platte Rivers combined, and 41 percent of the Statewide population. In 2001, 615 least terns were surveyed in the Platte River Basin, representing a decrease of 25 percent from the 1996 census. The impoundment and removal of water from the Platte River have severely altered its hydrograph and resulted in the disappearance of landscape featured that sustain the least terns and piping plovers (Service 1988a, Service 1990b, NRC 2004). The current status of the interior least tern stems largely from habitat loss and degradation of in-channel riverine sandbar Mr. Timothy Carey 42 habitat. Water development for irrigation, power generation, and flood control have caused narrowing, deepening, and stabilization of in-channel habitat. Alteration of the natural hydrograph, along with reduced channel capacity, exacerbated nest and chick losses due to flooding. Reductions of instream flow adversely affect the forage fish prey base of the least tern. Fish communities are adversely affected by existing water depletions when they result in less than 1,200 cfs from mid-May through August(measured at Grand Island). The hydrological baseline indicates flows during the breeding season are now below the 1,200 cfs level approximately 71 percent of the time. Piping Plover No nesting records for interior piping plovers exist within the action area in Wyoming or Colorado, although and adult piping plover was collected during the Warren expedition in Laramie County, Cheyenne, Wyoming in 1892. The impoundment and removal of water from the Platte River have severely altered its hydrograph and resulted in the disappearance of landscape featured that sustain the least terns and piping plovers (Service 1988a, Service 1990b, NRC 2004). The NRC (2004) summarized that river channels were wider and sandbars higher along the lower Platte River, and that nesting habitat may be limited on the central Platte reach. Nesting has occurred along the shoreline of Lake McConaughy on the North Platte River, on sandpits along the South Platte River, and sandpit and riverine sites along the Platte River. Nesting also has occurred at riverine and/or sandpit sites along the Elkhorn, North Loup, and Loup Rivers. On the Platte River system alone, 236 and 203 piping plovers were censused in 1991 and 1996, respectively. This represents 12 percent and 13 percent, respectively, of the United States Great Plains population. Ferland and Haig (2002) noted that despite intensive management of some sandpits and artificially created sandbars in the river, the 1991, 1996, and 2001 International Census' indicate piping plover numbers in the central Platte are declining. In 2001, numbers of piping plovers in Nebraska indicated an 18 percent decline from 1996, and a 23 percent decline from the 1991 census count. A different survey effort has been established specifically for the central reach of the Platte River as part of the monitoring and research component of the future Platte River Recovery Implementation Program. To date, the 2001,2002, and 2003 surveys for least terns and piping plovers have been completed, with no riverine nesting attempts reported in the central Platte River. The Service believes the current lack of riverine nesting upstream of Columbus is the result of extensive habitat degradation, including the elimination of naturally occurring sandbars, caused by depletions to Platte River flows. Water depletions in the Platte River basin have reduced annual instream flow volumes by nearly 70 percent(Williams 1978). Numerous dams and water diversion canals in the upper Platte River basin have reduced water and sediment discharge in the Platte River, resulting in the transformation of wide, open channels to multiple narrow channels separated by wooded islands (Eschner et al. 1983; Williams 1978). This vegetation encroachment eliminated much habitat for Mr. Timothy Carey 43 several species of birds, including piping plovers (Currier et al. 1985; Sidle et al. 1989; Service 1981). Alteration of the natural hydrograph, along with reduced channel capacity, exacerbated nest and chick losses due to flooding. The lower Platte River still experiences periodic high flows which scour vegetation from the channel and pile sand into suitable sandbars for tern and plover nesting(Sidle et al. 1992). Such flows continue to occur because most of the watershed in tributaries of the lower Platte River (Loup, Elkhorn, and Salt Creek Rivers) has not been dammed or diverted. Comparisons of sandbar area, channel width, mean elevation, and maximum elevation of nest sites versus systematic sample sites in the lower and central Platte (Lexington to Chapman,Nebraska) River study areas indicate that terns and plovers select wide channels with a large area of dry, sparsely vegetated sand (Ziewitz et. al. 1992). By these two measures alone, habitat availability was considerably greater on the lower Platte River than on the central Platte River. A greater number of plovers nest on sandpits rather than on the river along the central Platte River(Lingle 1988 and 1989; Sidle and Kirsch 1993); a further indication that riverine nesting habitat is in short supply along the central Platte River. Water development for irrigation, power generation, and flood control have caused narrowing, deepening, and stabilization of in-channel nesting and foraging habitat. The NRC (2004) concluded that current conditions in the central Platte River appear to be compromising the survival of the NGP piping plover, including the lack of hydrological conditions necessary for development and maintenance of nesting habitat. The NRC (2004) further stated that loss of habitat along the river appears to be forcing birds to use alternative sites that are less secure from predators and other sources of disturbance and do not provide suitable habitat for reproduction. Piping Plover Critical Habitat In Nebraska, critical habitat has been designated for portions of the Platte, Loup, and Niobrara Rivers, totaling approximately 440 miles (707.9 kilometers) of river(Unit NE-1). Within the action area, approximately 26 miles (428 km) of critical habitat has been designated on the Platte River from the Lexington Bridge,Nebraska, downstream to the confluence of the Platte and Missouri Rivers. Portions of these Nebraska rivers were designated where piping plovers have been consistently documented since listing. Similar to the Missouri River, portions of the Platte River included in the designation may not be occupied by piping plovers in a given year, but designation was necessary because of the dynamic nature of the river. The designation identified physical and biological features (primary constituent elements)that are essential to the conservation of the species. According to the final rule for critical habitat: The one overriding primary constituent element (biological) that must be present at all sites is the dynamic ecological processes that create and maintain piping plover habitat. Without this biological process the physical components of the primary constituent elements would not be able to develop. These processes develop a mosaic of habitats on the landscape that provide the essential combination of prey, forage, nesting,brooding and chick-rearing areas. The annual, seasonal, daily, and even hourly availability of the habitat patches is dependent on local weather, hydrological conditions and cycles, and geological processes. Mr. Timothy Carey 44 The biological primary constituent element, i.e., dynamic ecological processes, creates different physical primary constituent elements on the landscape. These physical primary constituent elements on the Platte River include (a) sparsely vegetated channel sandbars and gravel beaches on islands; (b) temporary pools on sandbars and islands; and(c) the interface with the river. These habitat types or physical primary constituent elements help sustain the northern Great Plains breeding population of piping plovers Pallid Sturgeon Much of the Platte River system was probably used by large-river fish species of the Missouri River system before water development projects were constructed. It has long been postulated that the Platte River may provide reproductive habitat for pallid sturgeon. This is due to several factors. Timing of captures is concentrated within the period in which pallid sturgeon are believed to spawn, and these captures have tended to occur during higher than average flow conditions during these times. Researchers captured a gravid female pallid sturgeon on May 3, 2001, at approximately Platte River mile 13 (E. Peters, University of Nebraska,pers. comet. 2001). Scaphirhynchus sturgeon larvae have been collected in the Platte River in 1996, 1.998 and 1999. However, these individuals have been too young to positively identify to species (Reade, 2000). Of 43 occurrences of pallid sturgeon reported in the lower Missouri River Basin(below Gavins Point Dam) in Nebraska from 1979 through 2001, 23 are from the Platte River, Elkhorn River, or the Missouri River near the Platte River confluence (Table 2). Thus, 53 percent of the observations in Nebraska are from an area representing about 10 percent of the species range in the State. In theory,pallid sturgeons could travel upstream in the Platte River as far as the Kearney Diversion Dam, located just downstream from Elm Creek,Nebraska. In 2002 and 2003, significant numbers of hatchery-reared pallid sturgeon were stocked in the Missouri River in Nebraska, including areas near the mouth of the Platte River. As a result, we cannot determine if numerous captures during this time frame represent habitat specifically selected by pallid sturgeon, or if they may contain individuals simply dispersing from release sites. Therefore, the 2002 and 2003 captures are not included in Table 2. Mr. Timothy Carey 45 Table 2. Occurrence of pallid sturgeon in the lower Missouri River in Nebraska from 1979 to 2001. (Source: Nebraska Natural Heritage Program (NNHP), and pallid sturgeon recovery team (Service, unpublished data). Date Location River Mile* Source 05/10/79 Platte River, Interstate 80 bridge 21.0+ NNHP 06/00/82 Missouri River; mouth of the Platte River 594.0 USFWS 05/29/84 Missouri River; mouth of the Platte River 594.0 NNHP 06/29/85 Missouri River; Washington County 647.0 NNHP 04/00/87 Missouri River; Dixon County 750.0 USFWS 04/05/87 Missouri River 725.0 USFWS 05/02/87 Missouri River; 3 miles upstream of mouth of Platte River 597.5 NNHP 09/10/88 Missouri River; Vermillion River 772.0 USFWS 11/02/88 Gavins Point tailwater 811.0 USFWS 05/06/90 Elkhorn River near Waterloo,Nebraska USFWS 05/15/90 Platte River; 0.25 mile above confluence with Missouri River 0.3+ USFWS 03/31/91 Missouri River; Otoe County 549.6 NNHP 04/06/91 Missouri River, Cass County; 4.5 miles below Platte R mouth 589.5 NNHP 05/01/91 Platte River near mouth 0.0+ USFWS 04/14/92 Missouri River;Nemaha County 525.7 NNHP 05/24/92 Missouri River; Douglas County 613.5 NNHP 05/25/93 Platte River; 1 mile below the mouth of the Elkhorn River 32.0+ NNHP 05/29/94 Missouri River; Cedar County,at mouth of Bow Creek 789.0 NNHP 04/15/95 Platte River; upstream from Hwy 50 bridge at Louisville 17.0+ NNHP 04/15/95 Missouri River; mouth of Platte River 592.5 NNHP 04/16/95 Missouri River; south of Nebraska City 549.4 NNHP 05/29/95 Missouri River; Harrison Co.,IA(Burt Co.,NE) 661.0 NNHP 06/08/96 Missouri River; Burt County 672.8 NNHP 10/24/96 Missouri River; Union Co., SD(Dixon Co.,NE) 751.0 NNHP 11/15/96 Missouri River; Dakota County 737.0 NNHP 05/10/97 Platte River; 150 yards below mouth of Elkhorn River 32.8+ NNHP 05/25/97 Platte River; 0.5 mile below mouth of Elkhorn River 32.2+ NNHP 07/09/97 Missouri River; Cedar County 811.0 NNHP 05/16/99 Missouri River,mouth of Platte River 594.0 NNHP 05/22/99 Platte River, 1 mile east ofAk-Sar-Ben aquarium 20.0+ NNHP 05/24/99 Missouri River,Cass County 590.5 NNHP 07/02/99 Missouri River, Cass County 585.0 NNHP 07/02/99 Missouri River,Cass County 585.0 NNHP 09/05/99 Elkhorn River, 3 miles north of hwy. 36 bridge NNHP 09/16/99 Missouri River,Cass County 590.0 NNHP 01/14/00 Missouri River,Gavins Point tailwater 811.0 NNHP 04/02/00 Missouri River, Cass County 593.0 NNHP 05/17/00 Missouri River,Cass County 588.0 NNI-IP 04/22/01 Missouri River, Cass County 594.0 NNHP 04/23/01 Missouri River, Cass County 592.0 NNHP 05/03/01 Platte River downstream from Hwy 50 bridge 16.0+ NNHP 06/23/01 Missouri River,Burt County 691.5 NNHP 06/30/01 Missouri River, Cedar County 811.0 NNHP * River miles are for Missouri River(Corps),except where noted as Platte River(+). Mr. Timothy Carey 46 The lower Platte River provides some of the least degraded pallid sturgeon habitat remaining in the central part of the species' range. At the same time, the pallid sturgeon habitat provided by the Platte River has been greatly altered and reduced by the effects of water resource development and bank stabilization. In other words,the condition of the lower Platte River, while clearly better than that of the Missouri River, is still substantially degraded. It is not currently known if this habitat has reached dynamic equilibrium, or if it continues to degrade as a result of existing human alterations to the system. The importance of the Platte River to pallid sturgeon recovery is evident within the context of the entire pallid sturgeon range. The species range consists largely of three divisions--a) the upper range, above Gavins Point Dam (the lowest of the mainstem Missouri River dams); b)the middle range, between Gavins Point Dam and the confluence of the Missouri and Mississippi Rivers; and c) the area between the Missouri/Mississippi confluence and the Gulf of Mexico. In the upper Missouri River basin, significant areas of pallid sturgeon habitat appear to be largely intact. However,the population structure in this part of the range is composed entirely of older adult fish, and while larval fish were captured in the upper Missouri River in 2002, it is believed that they may enter the upper reaches of Lake Sakakawea before ending their drift and,therefore, failing to recruit to the adult population(S. Krentz, Service,pers. comm. 2004). Given the lack of recruitment in the upper basin coupled with declining capture rates, Kapucinski (2003) estimated that the upper section of the population will be extinct by 2018. In the other end of the species range, in the lower Mississippi River basin, pallid sturgeon numbers are significantly higher than in the other two sections. Unfortunately, a high rate of hybridization appears to be taking place in this lower part of the range. As a consequence, hybridization may eliminate pallid sturgeon as a species within this lower part of the range as well. With the exception of the Platte River, the middle part of the species range consists of some of the most degraded habitat overall. Nevertheless,this section has had evidence of recent reproduction, and does not appear to be affected as strongly by hybridization as the lower range at this time. As a result,with habitat improvement,the middle of the species range shows the greatest overall potential for maintaining the continued existence, and eventual recovery of the species. Within the degraded middle section of the pallid sturgeon range,the Platte River contains the most intact habitat in terms of hydrology and physical habitat modification. The density of capture records in the lower Platte River and confluence area supports this value to the species (Table 2). The Platte River is the only tributary below Gavins Point Dam that originates in the Rocky Mountains and delivers runoff from mountain snowmelt to the lower basin. As such, while substantial water resource development has substantially altered the hydrograph of the lower Platte River, it continues to retain a semblance of the seasonal flow patterns indicative of Great Plains rivers receiving mountain snowmelt. A review by the NRC (2004) found that the lower Mr. Timothy Carey 47 Platte River remains the habitat with a flow regime most similar to the original, unaltered habitat- of pallid sturgeon. Beyond this, capture records suggest that the Platte River may be used for reproduction, the critical link to continued species persistence and recovery. Several factors support the suggestion that the Platte River may, under certain conditions, provide the features necessary for reproductive use by pallid sturgeon. This is due to several factors. Timing of captures is concentrated within the period in which pallid sturgeon are believed to spawn. Since 1979, 19 of the 23 captures of pallid sturgeon in the Platte River or Missouri Rivers near the Platte River confluence occurred during April, May, and June; the remaining occurrences were in July and September of 1999. These captures also have shown a strong tendency to occur during higher than average flow conditions at those times. Such spring high flow conditions are particularly important for pallid sturgeon, as these conditions are believed to act as a cue to staging and spawning behavior. Twenty of the 23 occurrences correspond with years when flows in the lower Platte River were above normal for the recent period(Louisville gauge, 1970 to 2001). Further, researchers captured a gravid female pallid sturgeon in May 2001 (E. Peters, University of Nebraska,pers. comm. 2001), and Scaphirhynchus sturgeon larvae have been collected in the lower Platte River in 1996, 1998 and 1999. However,these larvae have been too young to positively identify to species (Reade 2000). Suspended sediment concentrations in the lower Platte River increase three-to four-fold during the spring. Concentrations during spring average about 1,100 to 1,500 milligrams/liter(mg/I) (USGS, Louisville gage 1972 to 1976), approximately 35 percent higher than that of the Missouri River at Omaha. These springtime sediment concentrations are equivalent to those found in the Yellowstone River, where other pallid sturgeon populations are concentrated. The high flows during spring and early summer deliver about 80 percent of the total annual amount of suspended sediment in the lower Platte River. The high sediment load and discharge produces in-channel fish habitat(i.e. sandbars, backwaters, and pools) in the lower Platte River that is lacking or in extremely short supply in the channelized Missouri River. While the Platte River provides the most intact hydrographic and morphologic habitat in the highly degraded middle section of the species range, it has been substantially degraded. Spring flows of the central Platte have greatly declined since the early 1900s (Williams 1978, Eschner et al. 1983). The depletion of flows in the upper Platte River basin alone accounts for an approximate 40 percent decrease in May and June flows in the lower Platte River. This results in not only substantially weaker spawning cues and significantly reduced ability to form and maintain macro-bedforms used by pallid sturgeon, but the lower overall flows in the river magnify the effect of hydropower peaking operations in other tributary basins to the lower Platte River. This is due to the lower total volume of flow in the river, causing the diurnal variation in flows to account for a greater percentage of the total flows in the river, accentuating their proportionate effect. These types of river operations have been found to have a negative effect on lake sturgeon(Acipenser fulvescens) spawning(Auer 1996). Faanes (1992b) estimated that other proposed projects in the upper Platte River basin would decrease the remaining flows delivered to the central Platte River by an additional 75 percent. While the NRC (2004) found that current conditions in the lower Platte River do not adversely affect the likelihood of survival or recovery of the pallid sturgeon, it concluded that the loss of lower Platte River habitat would probably result in a catastrophic reduction in the pallid sturgeon population. Mr. Timothy Carey 48 In summary, the lower Platte River is highly important pallid sturgeon-habitat in a part of the range that the Service believes is crucial to the species continued existence and ability to recover. At the same time, the lower Platte River is degraded in its ability to serve its apparent habitat function due to the effects of water resource development in the basin, the majority of which has occurred in the upper parts of the basin, and further degradation of this habitat would likely be catastrophic to the species. Bald Eagle The Platte River, especially the central Platte, is a major wintering area for eagles (Vian 1971, U.S. Bureau of Reclamation 1981, Lingle and Krapu 1986, Stalmaster and Associates 1990). During 1980 to 1996, no other area in Nebraska (with the exception of Harlan County Reservoir) supported more bald eagles on an average than the 30-mile stretch of the Platte River between Darr and Elm Creek. The 6 documented communal night roosts in this area averaged 60 eagles per night (Service 1981). Currently, at least eight communal night roosts exist on the Platte River between Brady and Grand Island, Nebraska. Communal night roosts along the Platte River are within 1.2 miles of the riverbank. The same roosts are typically used every year and are usually located in areas protected from wind, harsh weather, and human disturbance (Service 1978; U.S. Bureau of Reclamation 1981; Lingle and Krapu 1986). In the past 11 years, Nebraska's population of wintering eagles has grown substantially. In 1992, a new high count of 1,292 eagles was recorded by the Nebraska Game and Parks Commission. Wintering bald eagles in Nebraska spend 4 to 5 months on their wintering grounds during a given year(Vian 1971; Lingle and Krapu 1986). Eagles wintering in Nebraska tend to congregate near bodies of water. Major river drainages and large lakes constitute the majority of winter habitat use. Open water and food availability dictate areas of use throughout the winter months. Upland areas may receive use when carrion is available. The importance of the Platte River Basin to bald eagles is evidenced by the fact that an average of 43 percent(335 birds) of the total Statewide wintering population was found in the Basin during the 1982-1994 period. Thirty-two percent of the State population occupied the Platte River, the North Platte River up to Lake McConaughy, and nearby reservoirs. The importance of the Platte River may increase during times of harsh weather conditions; during the abnormally cold winter of 1978-1979, 65 percent of the total Statewide wintering population used the Platte River Basin. From mid-October through early December, bald eagles can be found anywhere between Lexington and Grand Island. Normally the weather is somewhat mild and the river is ice-free during this period. However,beginning in late December of most years, the weather becomes more severe and the river often freezes between Kearney and Grand Island. Eagles then move to a stretch of ice-free river located downstream from the point where J-2 Return flows enter the river. Mr. Timothy Carey 49 Nebraska provides habitat for bald eagles during spring and fall migrations as well as in the winter(Johnsgard 1980). Suitable winter roosting habitat seems to be increasing as the riparian forest along the Platte River matures. The riparian forest is primarily a result of water depletions and reduced peak scouring flows. Suitable foraging habitat continues to be greatly influenced by the operation of water development projects. Reservoir releases from Kingsley Dam and through the J-2 power return helps maintain ice-free, open water in the areas immediately below these facilities, where eagles forage. Water withdrawals at times reduce fishery habitat and affect the species composition, age, and size structure of fish community. Bald eagles rely on larger forage fish as an important food source during the winter, so a reduction in prey availability would represent a threat to their overwinter survival. The availability of large forage fish during the winter is partially dependent upon the frequency of fish kills throughout the year. Low flows and elevated water temperature have resulted in fish kills frequently along the central Platte River. Goldowitz (1996) reviewed information available regarding Platte River fish kills and examined the relationship between their occurrence and instream flows in the river. Between 1974 and 1995, fish kills in the central Platte River have been reported for 10 of the 22 years (45 percent). All reported fish kills occurred at flows lower than 1,500 cfs, and all but one occurred at flows lower than 1,000 cfs. Goldowitz(1996)also demonstrates that fish kills were highly likely in other years but not documented. In addition,the reduction of high springtime flows has facilitated the gradual loss and fragmentation of wet meadow habitats used by waterfowl on which eagles prey. Western Prairie Fringed Orchid Historically,the western prairie fringed orchid was reported from 14 counties in Nebraska. Historical records of the orchid along the Platte River upstream of Kearney County are lacking (Freeman and Brooks 1989). Downstream of Kearney, one distant historical record along the Platte River was documented in June 1891,near Newark, in Keamey County. Orchid surveys were conducted on 370 grassland sites along the Platte and North Platte Rivers during the 1991 flowering season (Wilson and Bray 1991). The surveys found that 34 sites had potential or marginal habitat, but no orchids other than the known population on Mormon Island Crane Meadows were found. The orchid population located on Mormon Island Crane Meadows (MICM) in Hall County, Nebraska(south of the City of Grand Island), is the only known population presently occurring along the Platte River. The MICM property is owned and managed by the Platte River Whooping Crane Maintenance Trust, Inc. a non-profit organization. The MICM orchid population, first discovered in 1978, occurs in wet meadow habitat adjacent to the Platte River. The initial population survey in 1978 found 50 flowering plants, but the number of plants found in the MICM population during recent surveys has been declining. Surveys for the plants were not conducted in 2001, and no flowering or vegetative plants were found during the 2002 and 2003 surveys, perhaps because of drought conditions at the time of the survey. If no plants are found during the 2004 and future surveys, this population may be considered to be extirpated. Mr. Timothy Carey 50 The Platte River floodplain was the first large area of Nebraska converted to agriculture. Soon after settlement, irrigation and drainage of fields began changing the moisture regime in the floodplain(Wilson and Bray 1991). The past century has seen drainage, decreased river flows, and development of intensive agriculture in former wet prairies of the river valley. Consequently, little habitat remains that is suitable for the orchid. The D0I (1990) estimated that 112,791 acres of wet meadow had been lost along the North Platte and Platte Rivers in Nebraska from 1938 to 1982. The Mormon Island Crane Meadows orchid population is the only extant population found within the Great Plains Steppe Province (South-central Great Plains Section) Ecoregion. Maintenance of this population has been identified as a Priority 2 task(i.e., a task that must be taken to prevent significant decline in species population/habitat quality, or some other significant negative input short of extinction) in the recovery plan. The recovery plan task states that the Mormon Island Crane Meadows population should be maintained by protective management, including maintenance of an appropriate hydrologic regime (Service 1996). EFFECTS OF THE ACTION COLORADO The proposed activities are not likely to adversely affect the Ute ladies'-tresses orchid, Colorado butterfly plant,Preble's meadow jumping mouse, and bald eagle in the project area. No other federally listed,proposed, or candidate species occurring in Colorado will be affected by on-site direct or indirect impacts of this project. NEBRASKA A depletion analysis provided by the Corps for the implementation of the proposed project contains average monthly estimated consumptive use. However, the information provided does not contain long-term hydrological scenarios for project operations, and hydrologic models connecting the project area to the endangered species habitats in central Nebraska do not exist. Therefore, the average monthly depletions provided by the co-applicants were carried through the Platte River system as an effect on the corresponding monthly flows in central Nebraska. The monthly depletions of the project for the mining and post-mining phases are summarized in Table 3 and Table 4, respectively. Tables 5 and 6 compare consumptive use(depletions) attributed to project deliveries and storage evaporative losses to median Platte River flow conditions at Grand Island,Nebraska. For purposes of this opinion, it is assumed the consumptive use occurs in Weld County, Colorado. Table 3. Wattenberg Lakes Calculated Flak and Monthly Mining Phase Depletions. OCT Nov DEC JAN FEB MAR APR MAY JUN JUL AUG SEP Daily Consumptive .074 .076 .068 .062 .064 .056 .061 .063 .070 .071 .073 .076 Use (cfs) Monthly Consumptive 4.56 4.52 4.16 3.83 3.58 3.43 3.63 3.89 4.15 4.34 4.48 4.52 Use (al) Mr. Timothy Carey 51 Table 4. Wattenberg Lakes Calculated Daily and Monthly Water Storage Phase Depletions. OCT NOV DEC JAN* FEB* MAR* APR* MAY JUN JUL AUG SEP Daily Consumptive 2.63 5.28 4.34 --- --- --- --- 0.19 0.49 0.36 0.41 0.34 Use (cfs) Monthly 162 314 267 --- --- --- 12 29 22 25 20 Consumptive Use (af) * Net accretions are expected in these months;thus,no depletions are shown. Although depletions of the Project occur throughout the year, depletions during the months of April and May have the greatest effect on the ecological integrity of the river system. This period is typically the period of high run-off in the Platte River basin. Capture of spring-time runoff by water storage facilities within the basin has dramatically reduced the Platte River spring pulse flows in central Nebraska. Pulse flow reductions are a primary cause of the long-term and continuing deterioration of the structure and function of the river system, especially on the habitats on which federally listed species depend during essential stages in their respective life cycles. Table 5. Median Monthly Flow of the Platte River at Grand Island,Nebraska(OPSTUDY model existing conditions) and Mining Phase Depletions for Wattenberg Lakes Project. Average Depletions of Wattenberg Lakes Period Median Flow at Grand Island (cfs) Monthly'(af) Daily(cfs) January 1,564 3.83 .062 February 2,103 3.58 .064 March 2,570 3.43 .056 April 1,734 3.63 .061 May 1,335 3.89 .063 June 1,153 4.15 .070 July 478 4.34 .071 August 331 4.48 .073 September 775 4.52 .076 October 1,008 4.56 .074 November 1,326 4.52 .076 December 1,492 4.16 .068 Mr. Timothy Carey 52 Table 6. Median Monthly Flow of the Platte River at Grand Island, NE (OPSTUDY model existing conditions) and Water Storage Phase Depletions for Wattenberg Lakes Project. Average Depletions of Wattenberg Lakes Period Median Flow at Grand Island (cfs) Monthly (af) Daily (cfs), January 1,564 February 2,103 March 2,570 April 1,734 May 1,335 12 0.19 June 1,153 29 0.49 July 478 22 0.36 August 331 25 0.41 September 775 20 0.34 October 1,008 162 2.63 November 1,326 314 5.28 December 1,492 267 4.34 Spring pulse flows are fundamental to the ecological integrity of the Platte River. Physical and biological processes associated with spring pulse flows help to maintain habitats used by the listed species discussed in this opinion. Decreases in discharge and river stage during normal high flow periods adversely affect groundwater levels in wetland meadows (Hurr 1983, Henszey and Wesche 1993), river system sediment supply and transport(Lyons and Randall 1988), channel maintenance (Currier 1995 and 1996, Johnson 1994), and various other aspects of aquatic ecology(Service 1993b), all of which are essential processes for long-term maintenance of required endangered species habitats. Spring flow depletions negatively impact the ability of the river to maintain wide alluvial channels and promote seedling establishment and riparian woodland expansion along the river (Currier 1995 and 1996, Johnson 1994). Based on demographic studies of cottonwood and willow seedlings, Johnson(1994) found that increased flow in the winter during ice break-up and in late spring (mainly June)were the two primary factors that affect seedling mortality, and germination and recruitment. Decreased flows in late winter reduce ice scouring on seedling removal. Lowered flows during late May and June result in increased seed germination and seedling recruitment on exposed sandbars. Peak flows during other seasons may help remove cottonwood seedlings established during that year. Reductions in flow and the supply of medium-grain sand to the central Platte River has resulted in vegetation encroachment and a narrower river. As river flow and sediment load decrease the width of channel that is inundated is decreased along with the regular shifting of sand. Vegetation is then able to colonize the area of the channel that is no longer regularly inundated and active. Encroachment of woody vegetation across the formerly wide expanses of the active alluvial river bed are described by Williams (1978), Eschner et al. (1983), Sidle et al. (1989), Peake et al. (1985), Johnson(1990, 1994, and 1996), McDonald and Sidle (1992), and Currier (1995 and 1996a), Simons and Associates (2000), Murphy et al. (2004), and the DOI(2003). Much of the former river channel is presently dominated by riparian woodland. Channel widths Mr. Timothy Carey 53 in many areas have been reduced to 10 to 20 percent of their former size (Figure 3) due to reduced sandbar scouring and shifting of alluvial sediments. Habitat conditions within the channels have changed as vegetated areas excluded from the active river channel no longer provide useful habitat for the target bird species (Service 1997). The trend of reduction in channel width mirrors the pattern of coarsening of the riverbed sediments from west to east as described in the previous section. Figure 3 illustrates channel narrowing in the central Platte River near Overton, Nebraska, from 1860 to 1998. Historically, this was one of the widest reaches of the river and it is now one of the narrowest. Murphy et al. (2004) have concluded that while the western part of the habitat reach has fully narrowed and probably reached equilibrium the section from Kearney to Chapman, Nebraska, could continue to narrow to roughly 800 feet (total width of all channels). Similar narrowing trends have occurred on the North and South Platte Rivers, although the effect is not as pronounced (Simons and Associates 2000). Platte River Channel W idths versus River Mile 325 300 275 250 - 225 200 175 150 6 000 6,000 North Platte, NE O verton ` - G rand Island - 5000 5.000 i f e - 2,000 -e-1665 l - 2.000. +1999 a- +-193a a 15] 1963 p '� 1,000 b l I - 325 300 275 250 225 200 175 150 P iv or Mile Figure 3. Platte River channel widths at various times and locations. Mr. Timothy Carey 54 In summary, the primary reasons for Platte River channel narrowing are believed to be: - - a) The substantial reduction of mean river flow and peak flows caused by the construction of large storage reservoirs commencing in 1909; b) Colonization by vegetation, especially the portions of the channel no longer inundated by river flow; c) Reductions in the medium size sand supply, primarily from the North Platte River; d) Coarsening of the sand supply from the reduced contribution of North Platte River sediments and increased relative contribution of the South Platte River; e) Channel incision caused by clear-water return flows from the J-2 Hydropower Return Canal. The project will contribute to the cumulative reduction in spring flows. This cumulative reduction results in forestation of the channel and loss of wide alluvial channel habitats. Permanent establishment of vegetation in the river channel reduces the feeding, nesting, and roosting habitat available to the listed species covered in this biological opinion. Over the past half century, the open channel habitats have been entirely eliminated in some reaches of the Platte River in central Nebraska, and reduced by 70 to 90 percent in the remaining Platte River reaches. This reduction adversely affects the listed species by reducing the amount of secure habitat available to their use. In the most extreme case, least tems and plovers are no longer able to successfully nest along the Platte River due to these habitat changes. The project would result in adverse effects to federally listed species by contributing to reduced pulse flows resulting in reduced sediment transport. Diminished pulse flows will further reduce the river's ability to transport sediment past diversion structures and through the river system. As South Platte River pulse flows are reduced, a greater proportion of the total remaining river discharge reaching central Platte habitats is diverted through canal works. The waters diverted for hydropower and cooling are returned to the river through the Sutherland Power Return at North Platte,Nebraska, and the J-2 Return near Lexington,Nebraska, as sediment-free discharge. The discharges reacquire sediment load from the downstream river channel and bed. Kircher(1983) and Lyons and Randle (1988) found coarsened sediment particle size below hydropower returns. The long-term decline of stage/discharge rating curves at USGS flow gauging stations within and immediately upstream of the endangered species habitats (Service 1990b) are indicative of the adverse channel changes expected when channel bed degradation/incision occurs. Bed degradation will in turn cause a decline in floodplain groundwater levels and channel narrowing. The project's depletions would contribute incrementally to the cumulative reduction of groundwater levels and decreases in the frequency and duration of soil column saturation. Groundwater levels during the growing season, especially May and June, are necessary to maintain the long-term biological functions of wet meadows for listed species. Wetland habitats associated with the river (i.e., subirrigated wet meadows, backwaters, and sloughs) require Mr. Timothy Carey 55 periodic saturation near or above the soil surface to maintain their physical, biological, and chemical characteristics. Research indicates that river stage and discharge are the most dominant hydrological influences on groundwater levels of subirrigated wet meadows (USGS 1964, Henszey and Wesche 1993, Wesche et al. 1994) and that groundwater levels can respond rapidly to changes in river stage (Hurr 1983). As a result of the project's depletions, especially during May and June, the structure and function of wet meadows would contribute to the incremental change to drier conditions, causing biological productivity of aquatic and semiaquatic wet meadow communities to decrease. Decreased frequency and duration of saturated soils also likely facilitate conversion of wet meadows to other land uses, thus contributing to fragmentation of meadow habitat. The effect that Platte River ecosystem changes discussed in this section have on the individual endangered species and their habitats are discussed below. Whooping Crane Depletions caused by the proposed action would contribute to the cumulative adverse effect to whooping cranes that results from the impacts to their habitat in the central Platte River. Three types of cumulative adverse impacts to whooping cranes will be exacerbated by depletions caused by the proposed action--(a) channel widths suitable as stopover roosting habitat will be reduced; (b) groundwater recharge will be reduced, adversely impacting the structure and function of wet meadow feeding areas, and(c) in river reaches where sufficiently wide channels remain, roost habitat quality (water width and depth)will be degraded. The rationale for the first two factors is described above. The third factor affecting migrational habitat for whooping cranes is the direct influence that depletions during the whooping crane migration will have on aquatic roosting habitat. Instream flow modeling of whooping crane roost habitat indicates that the quality and amount of Platte River roost habitat is adversely affected by flow reductions below 2,400 cfs. From 1994 through 2004, daily mean flow at Grand Island was below this level approximately 76 percent of the time during the spring migration period, and approximately 71 percent of the time during the fall migration period from 1994 through 2003. Additional depletions during migration periods further degrades the quality of roost habitat available in the central Platte River. The effect of the proposed action's depletions,though small in magnitude, nevertheless would be an incremental contribution to a substantial cumulative loss of wide-channel habitats, wet meadows, and aquatic roosting habitat within the channel. As a result of habitat loss, migrating cranes are required to seek other less suitable stopover sites, which in turn subjects them to increased physiological stress, risks of predation and disease, and flight hazards (e.g., power lines and fences). Whooping Crane Critical Habitat By incrementally contributing to depletions of Platte River flows and consequent effects to the central Platte River, the project adversely affects each of the following primary constituent elements of designated critical habitat along the Platte River: Mr. Timothy Carey 56 1. Nutritional Requirements. The diverse Platte River bottoms, including wet meadows, sloughs and backwaters, provide a dependable source of food, water, and other nutritional or physiological needs for the whooping crane during spring and fall migrations. Insects, crayfish, frogs, small fish, and other small animals as well as some aquatic vegetation are abundant in these diverse habitats, and provide whooping cranes with nutrition not available from agricultural crops. Lowering of the groundwater table through depletions to high spring flows reduce the quality and productivity of adjacent, subirrigated wet meadows. Depletions to river flows incrementally contribute to the transformation of wet meadows to drier conditions and make these areas more vulnerable to conversion to cropland. Some cereal crops (primarily corn) in adjacent croplands appear to be major items taken during the migration period, but these crops will likely not be adversely affected by depletions to Platte River flows. 2. Cover or Shelter. Under certain flow regimes, the Platte River generally provides whooping cranes with the required open expanse for nightly roosting. The availability of shallow, submerged sand and gravel bars in rivers and lakes is one of the major factors determining whooping crane use of these habitats as roosting sites. Depletions to high, spring flows incrementally contribute to the inability of those flows to scour vegetation and maintain the wide, open, wetted channels used by cranes for roosting. In addition, depletions to the river below the Service's instream flow recommendations during spring and fall migration periods incrementally contributes to a reduction in availability of roost habitat at the appropriate • depths near the middle of unobstructed channels. 3. Space for Normal Behavior. Wide, unobstructed, wetted channels with a variety of water depths provide visibility of potential predators and security from human disturbance needed by whooping cranes to rest and feed during migration. Again, depletions to high, spring flows incrementally contributes to the inability of spring flows to scour vegetation and maintain the wide, open, wetted channels needed by cranes for roosting, and(occasionally) feeding during the day. Due to the adverse effects to the primary constituent elements of whooping crane critical habitat, depletions caused by the proposed action would incrementally contribute to the degradation of river channel and wet meadow habitat and, thereby, reduce the ability of the designated critical habitat to function as necessary migratory stopover habitat for the whooping crane. Least Tern and Piping Plover The recovery plans for the least tern and piping plover call for the maintenance of the distribution and range of the species, protection of essential habitat, and restoration of nesting habitat(Service 1988 and 1990a). The Platte River is identified in both recovery plans as essential habitat. Essential habitat along the Platte River is defined as suitable sandbars in river channels with appropriate flows. The proposed action will have a direct and indirect effect on the breeding, foraging, and nesting habitat of the least tern and the piping plover. The proposed action would adversely affect the least tern and piping plover by contributing to the continued loss of open channel and suitable sandbar nesting habitat and an increase in the loss of nests, eggs, and young. The proposed action will deplete flows during May through Mr. Timothy Carey 57 August, a time when the species are nesting and rearing chicks along the Platte River. Bare or sparsely vegetated habitats of a broad, alluvial river channel which are required by terns and plovers for nesting would decrease. Peak flows, which have been associated with the creation and maintenance of sandbars used for nesting (Ziewitz et al. 1992, Sidle et al. 1992 and 1993, DOI 1994) and which naturally occur during May and June, would be diminished by the proposed action. Supply and transport of sediment through the system is essential to maintain channel wide morphology, reduce or prevent bed degradation, and to maintain alluvial habitats used by least tern and piping plover. The proposed action would contribute to a reduction in the frequency and duration of channel forming flows and sediment transport. Channels would likely continue to exhibit tendencies of vegetation encroachment, further reducing least tern and piping plover nesting habitat along the central Platte River. Expansion of woody vegetation along the river channel also would continue to increase vulnerability of nesting terns and plovers to predation from owls, raccoons, opossum, and other predators associated with the forested habitats. Flow reductions below 1,200 cfs during the nest initiation period(mid May to early July) adversely impact the least tern and piping plover. Low flows during this period expose very low-lying sandbars at a time when nest sites are selected and nesting is initiated. Nesting habitat along the central Platte River consists of low-lying islands because peak flows are generally inadequate under existing operations to create higher elevation islands,the preferred nesting habitat of both species throughout their river ranges. The proposed project would contribute to the problems of reduced flow by annually depleting up to 1.10 cfs from the river system. Low-lying areas of the channel are subject to flooding by relatively small fluctuations caused by rain or when water is rejected by upstream diversion projects (e.g., J-2 Return)that frequently occur during the nesting season(i.e., egg laying, incubation, and brooding periods). This results in flooding of nests and mortality of eggs and chicks (Lingle 1993a and 1993b). Project-related depletions would occur during the period of nest initiation. Reductions of wetted channel during the nest initiation, incubating, and brooding periods of May through August increase the exposure and vulnerability of nests, eggs, and chicks to terrestrial predators and human-caused disturbances. Examination of channel morphology related to discharge indicates that the amount and rate of wetted channel area significantly decreases (or conversely,the amount and rate of exposed channel bed significantly increases) as flows are reduced below about 1,200 cfs. The Service has identified this flow level as a standard for evaluating habitat maintenance and flow depletions. Given that flows are already usually below this level, the project would exacerbate already degraded conditions for least tern and plover breeding habitat maintenance. In summary, the proposed action will adversely affect the least tern and piping plover by contributing to vegetation encroachment, reducing sediment transport, and reducing flows necessary for habitat maintenance. These effects have already been realized, especially in the upper and central Platte, from the cumulative effects of depletions similar to those proposed for this action. The lower Platte River would continue to offer the various sandbar and river channel dimensions described as important nest-site characteristics of piping plovers along the Platte Mr. Timothy Carey 58 River. The lower Platte River still experiences periodic high flows which scour vegetation from the channel and pile sand into suitable sandbars for plover nesting (Sidle et al. 1992). Such flows continue to occur because most of the watershed in tributaries of the lower Platte River (e.g., the Loup and Elkhorn Rivers) has not been dammed or diverted. High spring flows scour vegetation and maintain sandbars suitable for nesting, and lower, but more consistent summer flows ensure the availability of food items and isolate sandbars from mammalian predators and human disturbance. Piping Plover Critical Habitat The primary and overriding biological primary constituent element of piping plover critical habitat is the dynamic ecological processes that create and maintain piping plover habitat. Without these ecological processes, the physical components of the primary constituent elements would not be able to develop. These physical habitat characteristics includ--(a) sparsely vegetated channel sandbars and gravel beaches on islands; (b)temporary pools on sandbars and islands; and(c) the interface with the river. The cumulative effect of depletions to river flows (such as those from the project under consideration) causes degradation of the ecological processes responsible for creation and maintenance of the physical primary constituent elements. These ecological processes include a natural hydrograph with high spring flows followed by lower summer flows. The high spring flows scour vegetation from sandbars and islands, and transport and redistribute sediment into new sandbars that can be used by nesting and foraging piping plovers. The spring peak flows need to be sufficient(i.e., produce adequate river stage) to build sandbars of sufficient height to provide secure nesting substrate for the plovers. In the summer, river flows that provide a diversity of moist foraging substrate, including temporary pools on sandbars and an expanse of mudflats on which to forage, are required. The Service believes that summertime flows of approximately 1,200 cfs provide such foraging habitat when adequate sandbars are present in the river. The cumulative impact of depletions to Platte River flows, high spring flows in particular, further degrades the compromised ecological processes that control habitat features necessary for piping plovers. Without high spring flows, and the ephemeral sandbars those flows create and maintain, the critical habitat in the central Platte River cannot provide piping plover breeding and foraging habitat. This impact is felt most strongly in the central Platte River reach. Due to inflows from downstream tributaries,the lower Platte River portion of the designated critical habitat(i.e., below Columbus,Nebraska) continues to function as breeding habitat for the piping plover. Pallid Sturgeon The project under consideration would adversely affect pallid sturgeon by contributing to the cumulative and continuing depletions to flows in the Platte River basin. Water depletions from the upper Platte River basin alone have already reduced May and June flows in the lower Platte River by an estimated 40 percent. Depletions during the spring period adversely affect a number of important variables of pallid sturgeon habitat, including--in-channel habitat structure for the pallid sturgeon and fish it preys upon, turbidity affecting feeding efficiency of pallid sturgeon, nutrient flow affecting composition and abundance of species of the forage fish community, Mr. Timothy Carey 59 temperature affecting gonad maturation and spawning behavioral cues, and interspecific competition for habitat with other species such as the shovelnose sturgeon(Scaphirhynchus platorynchus). These factors most likely reduce the species' range, alter normal behavior patterns, and reduce the species' reproductive capacity. In summary, the lower Platte River is highly important pallid sturgeon habitat in a part of the range that the Service believes is crucial to the species continued existence and ability to recover. At the same time, the lower Platte River is degraded in its ability to serve its apparent habitat function due to the effects of water resource development in the basin, the majority of which has occurred in the upper parts of the basin. Further degradation of this habitat would likely be catastrophic to the species (NRC 2004). Bald Eagle The depletion associated with the proposed action would incrementally diminish fish habitat during some periods. Bald eagles rely on larger fish as an important food source during the winter, and the availability of large forage fish during the winter is partially dependent upon the frequency of fish kills throughout the year. Goldowitz(1996) linked reductions in summer flows and elevated water temperature to fish kills in the central Platte River, which occurred in at least 45 percent of years between 1974 and 1995 (i.e, in at least 10 of the 22 years). Long reaches of the central Platte River dried completely during the summers of 2002, 2003, and 2004. In addition,proposed action depletions in June would likely contribute to reduction or fragmentation of grassland and wet meadow habitat parcels. Conversion and fragmentation of grassland and wet meadows would decrease habitat of Canada geese, mallards, and other waterfowl, all prey items of the eagle in the central Platte River valley. However, water depletions during high flow periods may contribute to expansion of riparian woodlands, thereby potentially increasing winter protection habitat for the eagle. The cumulative loss of fishery habitat would likely have some degree of adverse effect on the foraging efficiency of the bald eagle. Bald eagles would more frequently need to rely on forage sources that are either more scarce, less desirable, or more difficult to obtain. When food is scarce, bald eagles may need to move to other locales along the Platte River or to other regions. Relocation during times of low food supply may stress bald eagles and cause decreased fitness. The adverse effects of proposed action depletions may cumulatively, with other hydrology-modifying actions, influence local Platte River wintering food sources, which may affect foraging efficiency and the condition of wintering eagles, and would likely require that alternative types of prey be more frequently used. Western Prairie Fringed Orchid The project would result in adverse effects to the western prairie fringed orchid by incrementally contributing to habitat dewatering and conversion. When the water table within its habitat drops below the root zone, western prairie fringed orchids experience flowering and increased plant mortality. Mr. Timothy Carey 60 Because river discharge and stage are dominant factors influencing groundwater levels in the "" Platte River valley (USGS 1964, Hun 1983, Henszey and Wesche 1993), spring depletions resulting from the proposed action will contribute to reduced frequency and duration of saturated soil conditions. Depletions associated with the proposed action would contribute cumulatively to flow reductions during the pulse flow season (May and June). This effect in turn would influence the frequency and duration of soil saturation. As a result, low-lying prairies and wet meadows in and near the river will become drier. Conversion, fragmentation, and dewatering of low grassland and meadow habitats may adversely affect the western prairie fringed orchid by-- (a) eliminating habitat; (b) reducing its potential range and distribution; (c)preventing or retarding expansion, colonization, or recolonization; and(d) decreasing the resilience of isolated populations to fluctuations in its numbers caused by environmental stochasticity. Although the project would adversely affect western prairie fringed orchids within the Mormon Island Crane Meadows, only a small proportion of the range of the western prairie fringed orchid lies within the action area, and the project has little influence over the survival and recovery of the species. CUMULATIVE EFFECTS Cumulative effects include the effects of future State, Tribal, local, or private actions that are reasonably certain to occur in the action area considered in this biological opinion. Future Federal actions that are unrelated to the proposed action are not considered in this section because they require separate consultation pursuant to the ESA. At this time, we are unaware of any future actions that would not require separate section 7 consultation under the ESA. CONCLUSION After reviewing the current status of the species,the environmental baseline for the action area, the effects of the proposed action and the cumulative effects, it is the Service's biological opinion that the applicant's proposed action would contribute to the cumulative adverse depletive effects described in the"Effects of the Action"section, and is likely to jeopardize the continued existence of the whooping crane, least tern,piping plover, and pallid sturgeon. We base this conclusion on the following: • Depletions to high spring flows will likely incrementally reduce the reproduction,numbers and distribution of least terns and piping plovers by contributing to the continued loss of riverine breeding habitat for least terns and piping plovers along the central Platte River. • Depletions to flows, especially summer flows, will likely incrementally reduce the reproduction,numbers and distribution of least terns by adversely affecting the fish community(forage base) for least terns. • Habitat loss caused by depletions to flows likely requires migrating cranes to seek other less suitable stopover roost and feeding sites, which in turn subjects them to increased physiological stress, risks of predation and disease, and flight hazards (e.g.,power lines and fences). Mr. Timothy Carey 61 • The cumulative effect of depletions incrementally degrades the value of the lower Platte River, an area vital to the reproduction and survival of the pallid sturgeon. Depletions reduce high flows and sediment loads necessary for spawning cues, and for the creation and maintenance of pallid sturgeon and forage fish habitat in this area vital to the survival of the pallid sturgeon. After reviewing the current status of the species, the environmental baseline for the action area, the effects of the proposed action and the cumulative effects, it is the Service's biological opinion that the applicant's proposed action would contribute to the cumulative adverse depletive effects described in the"Effects of the Action" section, and is likely to result in adverse modification of designated critical habitat for the whooping crane and piping plover. We base this conclusion on the following: • Continued narrowing of wide channels in the central Platte River through incision of the channel bed and coarsening of the average sediment grain size reduces the ability of the Platte River to provide cover and shelter to migrating whooping cranes (i.e., wide open channels for nightly roosting, and necessary isolation from disturbance and predation). • Depletions to high spring flows reduce groundwater recharge, which adversely affects the structure and function of wet meadow feeding areas for whooping cranes • In river reaches where sufficiently wide channels remain, depletions will degrade whooping crane roost habitat quality by reducing wetted width of the channel and decreasing water depth. • Vegetation of islands in the channel caused by depletions to high spring flows will incrementally reduce unobstructed channel widths needed by roosting whooping cranes, and reduce the availability of nesting habitat for piping plovers. • Depletions to the Platte River disrupt the dynamic ecological processes (i.e.,the natural hydrograph, and sediment load and transport)that create and maintain the physical primary constituent elements of piping plover nesting and foraging habitat. These include-- (a) sparsely vegetated channel sandbars and gravel beaches on islands; (b) temporary pools on sandbars and islands; and (c)the interface with the river. It also is the Service's biological opinion that the Project is likely to adversely affect but is not likely to jeopardize the continued existence of the western prairie fringed orchid and the bald eagle. The Service has consistently taken the position that individual projects, when taken cumulatively with the many other depletive actions in the Platte River basin, will contribute incrementally to the alteration of supporting hydrology essential to maintenance of the floodplain and riverine habitats of these species. However, the action area for this project constitutes a small portion of the entire range of these species. Thus, we conclude that the project would not jeopardize the continued existence of the bald eagle or western prairie fringed orchid. REASONABLE AND PRUDENT ALTERNATIVE Regulations (50 CFR §402.02) implementing section 7 of the ESA define Reasonable and Prudent Alternatives as alternative actions, identified during formal consultation, that--(1) can be implemented in a manner consistent with the intended purpose of the action; (2) can be implemented consistent with the scope of the action agency's legal authority and jurisdiction; Mr. Timothy Carey 62 -(3) are economically and technologically feasible; and (4) would, the Service believes; avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of designated critical habitat. The following reasonable and prudent alternative is to be implemented to reduce the adverse effects of the proposed Federal action to the extent necessary to ensure that such action is neither likely to jeopardize the continued existence of listed species nor adversely modify their designated critical habitat. This alternative is primarily based upon the establishment of a Platte River Recovery Implementation Program. This program would be designed to recover the Platte River ecosystem to a point where the conditions in the river corridor meet the needs of the threatened and endangered species, which use the Platte River. The Federal government and the States of Nebraska, Wyoming, and Colorado are currently working to establish this basin-wide Program that would encompass the Platte River ecosystem downstream of the confluence of the North and South Platte Rivers. Implementation of the Program would be accomplished through a cooperative agreement among the appropriate Federal, State, and private entities. The Program would serve as the primary basis for a reasonable and prudent alternative for water projects subject to section 7 consultation under the ESA in order to avoid the likelihood of jeopardizing federally listed species and adversely modifying or destroying their designated critical habitat. Program participants may be required to share the responsibility for conservation and recovery of the listed species and their habitats. PHASE I-INTERIM MEASURES With respect to this consultation, the interim period is defined as that time between the issuance of this biological opinion and when a Program is in place and being implemented. These interim measures are intended to bridge the time period from initiation date of the proposed project to when a Program is signed and being implemented. They are not to be construed as a permanent reasonable and prudent alternative for the life of the proposed action. Because of the direct relationship of instream flows to the maintenance of aquatic, wet meadow, and other floodplain habitats, as discussed in this opinion, this reasonable and prudent_altemative consists of both landscape and flow improvement components. The alteration of the natural hydrograph of the Platte River has led to degradation of floodplain and.in-channel habitats. The viability of the Platte River ecosystem, and the survival and recovery of the federally listed species which depend on it, requires both rehabilitation of portions of the Platte River landscape and restoration of instream flows to the target levels described in this biological opinion. This alternative is based on the Service's determination of this Project's equitable share of a basin- wide solution for the interim period. Based on the Cooperative Agreement, for water related activities for which consultation on a Federal action pursuant to section 7(a)(2) of the ESA will be completed during the term of the Cooperative Agreement as extended, the Service agrees that it will recommend that the Federal action agency engage in or require a non-Federal signatory to engage in certain measures or make certain payments designed to produce defined benefits to the target species and/or their Mr. Timothy Carey 63 associated habitats during the term of the Cooperative Agreement. The Service agrees to require the Federal action agency to make provisions for the changed circumstances that will exist if a Program is implemented, to include provisions in the event a Program is not implemented or terminates, and to incorporate provisions in the event the Cooperative Agreement terminates prematurely. These interim measures call for an annual financial contribution based on--(a) the relationship of the depletions from the Project to the total depletions within the Platte River Basin measured at the Grand Island Streamflow gauge, (b) applying that relationship to the additional water needed to meet the target flows and the additional habitat needed for the listed species in the central Platte River, and (c)the estimated cost of acquiring water and acquiring and restoring riverine habitat. The total average annual depletions within the basin measured at the Grand Island gauge are 2,650,000 af. The average annual shortfall of streamflow needed to meet the Service's target flows is 417,000 af. The total additional riverine habitat needed for recovery of the listed species in the central Platte River is 29,000 acres,which is the additional habitat need identified for the central Platte River(Platte River Management Joint Study 1990). The cost of delivering water on an annual basis is estimated to be $5.50 per af(Dougherty 1994). The cost of acquiring and restoring riverine habitat is estimated to be $2,500 per acre which includes purchase, rehabilitation, operation and maintenance. The following formulas have been developed to determine the annual cost of the interim measures for this Federal action: Project's estimated mining-phase depletions (49.1 afl = .000019 (Co-Applicant#1's share) Total estimated depletion in basin(2,650,000 af) Water: Annual Streamflow shortfall (417,000 af) x .000019 = 7.71 af 7.71 of x $5.50/af= $42.40 = Annual Cost for Water Riverine Habitat: #acres of %depletion Habitat habitat needed x of the project x rest./maint (29,000) (.000019) cost($2,500)/acre 10 years expected life of project = $134.40 Annual Cost for Riverine Habitat CO-APPLICANT # l's TOTAL ANNUAL CONTRIBUTION= $176.80 Project's estimated water storage-phase depletions (793 afl = .0003 (Co-Applicant #2's share) Total estimated depletion in basin(2,650,000 af) Water: Annual Streamflow shortfall (417,000 af) x .0003.= 124.76 af 124.76 of x $5.50/af= $ 686.22 = Annual Cost for Water Mr. Timothy Carey 64 Rivcrine Habitat: # acres of % depletion Habitat habitat needed x of the project x rest./maint (29,000) (.0003) cost($2.500)/acre 20 years expected life of project = $1,084.78 Annual Cost for Riverine Habitat CO-APPLICANT#2's TOTAL ANNUAL CONTRIBUTION= During the MINING PHASE of the project: $1,594.20 (remaining $176.80 provided by Co-Applicant#1 to address mining-related depletions); During the WATER STORAGE PHASE of the project: $1,771.00 Upon issuance of this biological opinion and during each year of the Interim Period, the co-applicants shall: Contribute$176.80 (Co-Applicant 1) and $1,594.20 (Co-Applicant 2) during the mining phase; and contribute $1,771.00 (Co-Applicant 2) during the water storage phase into a fund, established at the National Fish and Wildlife Foundation, for the purpose of acquiring water and/or acquiring and restoring riverine habitat in the Platte River below North Platte, Nebraska. The co-applicants and the Corps have agreed to cooperate with the Service in implementing both the water acquisition and the landscape improvement components. To accomplish this,the Service requests that the co-applicants be instructed to mail a check in the specified amount(referencing the Biological Opinion number on the check), payable to the "National Fish and Wildlife Foundation,"to the point of contact identified at the following address: Rebecca Kramer, Special Funds Program Coordinator National Fish and Wildlife Foundation 28 Second Street, 6th Floor San Francisco, California 94105 We recommend that, along with the check,the project proponents be advised to include a cover letter referencing the Federal action (Project title) consulted on, Biological Opinion number, and date of issuance; and stating that the funds are to be deposited into Account No. 98-166 and used for". . . the acquisition, conservation, recovery, and maintenance of habitat along the Platte River in Nebraska." A copy of this check and the cover letter accompanying the payment also should be sent to the Service's Colorado Field Office at the following address: U.S. Fish and Wildlife Service Ecological Services Field Office 755 Parfet Street, Suite 361 Lakewood, Colorado 80215 Mr. Timothy Carey 65 Once the Foundation has received the co-applicants' initial checks and notified the-Service, formal consultation on the proposed Federal action described above will be concluded. Any need for reinitiation of formal consultation on this proposed action is outlined in the Reinitiation and Closing Statement section below. Although the formulas above are based upon habitat and flow requirements of listed bird species and their habitat needs in the central Platte River, the funds collected also may be used for studies or habitat restoration to offset the adverse modification of designated piping plover critical habitat along the Platte River between Chapman,Nebraska, and Columbus,Nebraska, and for the pallid sturgeon in the lower Platte River. Therefore, any water acquired under these interim measures also would serve as interim measures for the adverse modification of designated piping plover critical habitat and effects to the pallid sturgeon. As an alternative,the co-applicants have the option of acquiring water (7.71 of and 124.76 af; Applicants 1 and 2, respectively) and acquiring and restoring riverine habitat(0.54 acres and 8.68 acres; Applicants I and 2, respectively) themselves in the Central Platte. If the applicants choose to take this option, coordination with and approval by the Corps and the Service would be required. PHASE 2-FORMULATION OF THE PROGRAM The Corps and the co-applicants shall support the formulation and implementation of a cooperative, interstate, and interagency Program designed to provide and improve habitat for federally listed species in the lower Platte River. The Service, in cooperation with other Federal and State Agencies, will determine the mission, purpose, and scope of the actions that the Program will accomplish for the restoration of the habitat of the species of concern. The main goal of the Program would be to restore the central Platte River ecosystem so that it conserves listed species and their habitats. To accomplish that goal, it is anticipated that the Program will address acquisition and protection of instream flows to and through the habitat on the Platte River used by the listed species, acquisition and management of riverine habitats needed for recovery of the listed species and acquisition and management of wet meadow habitats needed for recovery of the listed species. If the Program is implemented, the co-applicants will participate in the Program and will assume any obligations required of Program participants. The Corp's permit will be amended to reflect that fact and to include any responsibilities the co-applicants has assumed as a Program participant. INCIDENTAL TAKE STATEMENT Section 9 of the ESA and Federal regulation pursuant to section 4(d) of the ESA prohibit the take of endangered and threatened species, respectively, without special exemption. Take is defined as to harass,harm,pursue, hunt, shoot, wound,kill, trap;-capture or collect, or to attempt to engage in any such conduct. Harm is further defined by the Service to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass is defined by the Service as intentional or negligent actions that create the likelihood of injury to listed species by annoying it to such an extent as to significantly disrupt normal behavior patterns Mr. Timothy Carey 66 which include, but are not limited to,breeding, feeding or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited taking under the ESA provided that such taking is in compliance with the terms and conditions of this incidental take statement. The measures described below are non-discretionary, and must be undertaken by the Corp so that they become binding conditions of any grant or permit issued to the co-applicants, as appropriate, for the exemption in section 7(o)(2) to apply. The Corps has a continuing duty to regulate the activity covered by this incidental take statement. If the Corps (1) fails to assume and implement the terms and conditions or(2)fails to require the co-applicants to adhere to the terms and conditions of the incidental take statement through enforceable terms that are added to the permit or grant document, the protective coverage of section 7(o)(2) may lapse. To monitor the impact of incidental take, the Corps must report the progress of the action and its impact on the species to the Service as specified in the incidental take statement. [50 CFR§402.14(i)(3)] Whooping Crane, Least Tern, Piping Plover, and Pallid Sturgeon Water depletions cause incidental take in the form of harm by reducing habitat availability and habitat maintenance capability of the Platte River for the whooping crane, least tern, piping plover, and pallid sturgeon as described in the "effects of the action" section in the accompanying biological opinion. Estimating the number of individuals of these species that would be taken as a result of water depletions is difficult to quantify for the following reasons: (1) determining whether an individual forwent breeding as a result of water depletions versus natural causes would be extremely difficult to determine; (2) fording a dead or injured individual would be difficult, due to the large size of the area of effect and because carcasses are subject to scavenging; (3) natural fluctuations in river flows and species abundance may mask project effects, and (4) effects that reduce fecundity are difficult to detect and quantify. According to Service policy, as stated in the Endangered Species Consultation Handbook (March 1998) (Handbook), some detectable measure of effect should be provided, such as the relative occurrence of the species or a surrogate species in the local community, or amount of habitat used by the species, to serve as a measure for take. Take also may be expressed as a change in habitat characteristics affecting the species, such as water quality or flow(Handbook, p 4-47 to 4-48). Because estimating the number of individuals of whooping cranes, least terns, piping plovers and pallid sturgeon that would be taken by the implementation of the RPA included in this biological opinion is difficult, we have developed a surrogate measure to estimate the amount of anticipate take to listed animals in the form of harm. The surrogate we are using is the reduction of water that would occur from the proposed action. We exempt all take in the form of harm to the whooping crane, least tern, piping plover and pallid sturgeon that would occur from the removal of up to 793 of of water depletions annually. Water depletions above the amount addressed in this biological opinion would exceed the anticipated level of incidental take and are not exempt from the prohibitions of section 9 of the ESA. Mr. Timothy Carey 67 Bald Eagle Although individual bald eagles will be adversely affected by the further reduction of water in the Platte River system, we do not anticipate that these effects will rise to the level of incidental take by actually killing or injuring any bald eagles. Therefore,no incidental take is authorized. Should incidental take occur, any and all operations causing such take must cease pending reinitiation of section 7 consultation under the ESA. • Western Prairie Fringed Orchid Section 9 of the ESA does not address the incidental take of listed plant species. Consequently, we have not included an incidental take statement, reasonable and prudent measures, or terms and conditions for the western prairie fringed orchid. We remind you that section 9(a)(2)(B) of the ESA prohibits the removal and reduction to possession and the malicious damage of endangered species on any areas under Federal jurisdiction. REASONABLE AND PRUDENT MEASURES The implementation of the Recovery Program is intended to minimize impacts of water depletions. Therefore, the reasonable and prudent alternative outlined above also will minimize the take that results from the 793 aflyear water depletion. No additional measures are necessary. CONSERVATION RECOMMENDATIONS Section 7(a)(I) of the ESA directs Federal agencies to use their authorities to further the purposes of the ESA by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information. 1. The Corps or the co-applicants should review its water budget to determine if the water use is efficient. Where possible, the applicant should install technologies or practices that would reduce its water consumption. 2. The Corps or co-applicants should attempt to purchase water rights that would offset the depletive effects of its consumption. 3. The Corps or co-applicants should ensure that its intakes,which draw water from the Platte River system, are screened to avoid entraining forage fish or other wildlife species. The Service requests notification of the implementation of any conservation recommendations so we may be kept informed of actions minimizing or avoiding adverse effects or benefiting listed species or their habitats. Mr. Timothy Carey 68 REINITIATION AND CLOSING STATEMENT This concludes formal consultation on the Corp's proposed issuance of a permit for the Wattenberg Lakes Mine Project, to allow aggregate mining, reclamation and water storage. As required by 50 CFR 402.16, reinitiation of formal consultation is required if--(1)take occurs, (2)new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion, (3)the agency action is subsequently modified in a manner that causes an adverse effect to the listed species or critical habitat that was not considered in this opinion, (4) a new species is listed or critical habitat designated that may be affected by the action, (5) if the Program(required by the reasonable and prudent alternative) is not initiated by the term outlined in the Cooperative Agreement, or(6) the Program is initiated by the term outlined in the Cooperative Agreement but does not act as the reasonable and prudent alternative for this Project. If the Program is not implemented, or all obligations under the reasonable and prudent alternative are not fulfilled,the Corps agrees to reinitiate section 7 formal consultation under the ESA and a new opinion will be issued at that time. If reinitiation of consultation is necessary, it is anticipated that consultation can be concluded within 1 year. We believe that permanent reasonable and prudent alternatives can be developed at that time. However, if the Service believes that such alternatives do not exist,the Corps has authority to take appropriate action to avoid violating section 7 of the ESA through funding agreement amendments, termination, or revocation. To facilitate reinitiation of consultation,the Corp's permit should contain a clause enabling the Corps to reinitiate consultation and, subsequently, to amend the terms of the contract. If the Service can be of further assistance,please contact Susan Lipner of the Service's Colorado Field Office in Lakewood at(303) 275-2370. Sincerely, \61.A.-- ici---" RALP O. MORG r ECFY Regional Director Mr. Timothy Carey 69 LITERATURE CITED Adams, S.M., R.B. McLean, and M.M. Huffman. 1982. Structuring of a predator population through temperature-mediated effects on prey availability. Canadian Journal of Fisheries and Aquatic Sciences 39(8):1175-1184. Adolf, S.L. 1998. Distribution, productivity, and habitat use by interior least tems and piping plovers on the Niobrara River in northern Nebraska, 1996-1997. Masters Thesis. South Dakota State University. Allen, R.P. 1952. The whooping crane. National Audubon Society Research Report 3. 246 pp. Allen, G.T., S.H. Blackford and D. Welsh. 1998. Arsenic, mercury, selenium, and organochlorines and reproduction of the interior least terns in the northern Great Plains, 1 992-1994. Colonial Waterbirds. 21(3):356-366. American Ornithologists Union. 1983. Checklist of North American Birds. Allen Press, Inc., Lawrence, Kansas. 876 pp. American Ornithologists Union. 1998. 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Ecology 60:783-799. Atwood, J.L., and P.R. Kelly. 1984. Fish dropped on breeding colonies as indicators of least tern food habits. Wilson Bulletin 96(1):34-47. Audubon, J.J. 1835. Ornithological biography. Volume 3:69. Auer, N.A. 1996. Response of spawning lake sturgeons to change in hydroelectric facility operation. Transactions of the American Fisheries Society. 125:66-77. Mr. Timothy Carey 70 Austin, O.L., Jr. 1932. The birds of Newfoundland, Labrador. Memoirs of the Nuttall Ornithological Club. Cambridge, Massachusetts. Austin, E.A. and A.L. Richert. 2001. A comprehensive review of observational and site evaluation data of migrant whooping cranes in the United States, 1943-99. U.S. Geological Survey. Northern Prairie Wildlife Research Center, Jamestown,North Dakota, and State Museum, University of Nebraska, Lincoln,Nebraska. 157pp. Bailey, R.G. 1980. Description of the ecoregions of the United States. U.S. Department of Agriculture. Miscellaneous Publication No. 1391. Bailey, R.M., and F.B. Cross. 1954. River sturgeons of the American genus Scaphirhynchus: Characters, distribution, and synonymy. Papers of the Michigan Academy of Science,Arts, and Letters 39:169-208. Bailey, R.M., and M.O. Allum. 1962. Fishes of South Dakota. Miscellaneous Publication No. 119, Museum of Zoology, University of Michigan, Ann Arbor. Ballinger, R.E. 1980. Amphibians and reptiles of Mormon Island Preserve with notes on their management. Report for The Nature Conservancy. School of Life Sciences, University of Nebraska-Lincoln. Banks,R.C. 1977. The decline and fall of the Eskimo curlew, or why did the curlew go extinct? American Birds 31:127-134. Banks, R.C. 1978. The size of the early whooping crane populations. Unpublished report. U.S. Fish and Wildlife Service files. 10 pp. Barrows, W.B. 1884. Birds of lower Uruguay. Auk 1:313-319. Bent, A.C. 1929. Life histories of North American shorebirds. Part II. U.S. National Museum Bulletin 146. 412 pp. Binkley, C.S., and R.S. Miller. 1983. Population characteristics of the whooping crane, Grus americana. Canadian Journal of Zoology 61:2768-2776. Blankinship,D.R. 1976. Studies of whooping cranes on the wintering grounds. Pages 197-206 in J.C. Lewis (ed.)Proceedings International Crane Workshop. Oklahoma State University Press, Stillwater. Boreman, J. 1997. Sensitivity of North American sturgeons and paddlefish to fishing mortality. Environmental Biology of Fishes. 48:399-405. Bowles,M.L., and A. Duxbury. 1986. Report on the status of Platanthera praeclara Sheviak and Bowles in Oklahoma, Kansas,Nebraska, South Dakota, and North Dakota. Unpublished report to the U.S. Fish and Wildlife Service, Denver, Colorado. 42 pp. + appendices. Mr. Timothy Carey 71 Boyce,M.S. 1987. Time-series analysis and forecasting of the Aransas-Wood Buffalo whooping crane population. Pages 1-9 in J.C. Lewis and J.W. Ziewitz, eds. Proceedings 1985 Crane Workshop. Platte River Whooping Crane Habitat Maintenance Trust and U.S Fish and Wildlife Service, Grand Island,Nebraska. Boyce, M.S.;and R.S. Miller. 1985. Ten year periodicity in whooping crane census. Auk 102(3):658-660. Boyd, R.L. 1987. Habitat management and population ecology studies of the least tern in Kansas. Kansas Fish and Game Commission. Unpublished Report. Boyd, R.L., and B.C. Thompson. 1985. Evidence for reproductive mixing of least tern populations. Journal of Field Ornithology 56:405-406. Bramblett, R.G. 1996. Habitats and movements of pallid and shovelnose sturgeon in the Yellowstone and Missouri Rivers, Montana and North Dakota. Ph.D. thesis. Montana State University, Bozeman. Brown, C.J.D. 1971. Fishes of Montana. Big Sky Books, Endowment and Research Foundation at Montana State University, Bozeman,Montana. Brown, L., and D. Amadon. 1968. Eagles, hawks, and falcons of the world. McGraw Hill Book Co.,New York. Brownell, V.R. 1984. Status report on the prairie white fringed orchid (Platanthera leucophaea): a rare species in Canada. Unpublished report. 39 pp. Buehler, D.A., T.J. Mersmann, J.D. Fraser, and J.K.D. Seegar. 1991. Non-breeding bald eagle communal and solitary roosting behavior and roost habitat on the northern Chesapeake Bay. Journal of Wildlife Management 55(2):273-281. Cairns, W.E. 1982. Biology and behavior of breeding piping plovers. Wilson Bulletin 94:531-545. Carlson, D.M. and W.L. Pflieger. 1981. Abundance and life history of the lake, pallid, and shovelnose sturgeons in Missouri. Endangered Species Project SE-1-6. Missouri Department of Conservation, Jefferson City. Carlson, D.M., W.L. Pflieger, L. Trail, and P.S. Haverland. 1985. Distribution, biology, and hybridization of Scaphirhynchus albus and S.platorynchus in the Missouri and Mississippi Rivers. Environmental Biology of Fishes 14(1):51-59. Carney,K.M. and W.J. Sydeman. 1999. A review of human disturbance effects on nesting colonial waterbirds. Waterbirds. 22(1):68-79. Mr. Timothy Carey 72 Caswell, H. 1982. Life history theory and the equilibrium status of populations. American • Naturalist 120:317-339. Chase, C. and C. Loeffler. 1978. Arkansas valley shorebird inventory. Colorado Division of Wildlife. Cochnar, J., and D. Jenson. 1981. 1980 Mormon Island Crane Meadows Fish Inventory. Report for The Nature Conservancy. 36 pp. +appendices. Connors, P.G.,J.P. Myerrs, C.S.W. Connors, and F.A. Pitlka. 1981. Interhabitat movements by sanderlings in relation to foraging profitability and the tidal cycle. Auk 98:49-64. Constant, G.C., W.E. Kelso, D.A. Rutherford and D.F. Bryan. 1997. Habitat, movement, and reproductive status of pallid sturgeon(Scaphirhynchus albus) in the Mississippi and Atchafalaya Rivers. U.S. Army Corps of Engineers,New Orleans District. MIPR number W42-HEM-3-PD-27. Research Work Order 22. 78pp. Cooke, W.W. 1910. Distribution and migration of North American shorebirds. Bureau of Biological Survey Bulletin 35:1-100. Corn, J. and M. Armbruster. 1993a. Piping plover diets on the central Platte River. National Ecology Research Center, U.S. Fish and Wildlife Service, Fort Collins, Colorado. 112pp. Coues, E. 1861. Notes on the ornithology of Labrador. Proceedings Academy of Natural Sciences, Philadelphia. 13:215-257. Crawshaw, L.I. 1977. Physiological and behavioral reactions of fishes to temperature change. Journal of the Fisheries Research Board of Canada 34(5):730-734. Cross, F.B. 1967. Handbook of fishes of Kansas. Museum of Natural History, University of Kansas, Public Education Series 3, Lawrence. Currah, R.S., E.A. Smreciu, and S. Hambleton. 1990. Mycorrhizae and mycorrhimal fungi of boreal species of Platanthera and Coeloglossum (Orchidaceae). Canadian Journal of Botany 68:1171-1181. Currier, P.J., G.R. Lingle, and J.G. Van Derwalker. 1985. Migratory bird habitat on the Platte and North Platte Rivers in Nebraska. The Platte River Whooping Crane Critical Habitat Maintenance Trust, Grand Island,Nebraska. 177 pp. Currier, P.J. 1995. Woody vegetation expansion and continuing declines in open channel and habitat on the Platte River in Nebraska. The Platte River Whooping Crane Critical Habitat Maintenance Trust, Grand Island, Nebraska. 37 pp. Currier, P. J. 1996. Channel changes in the Platte River Whooping Crane Critical Habitat Area. Platte River Whooping Crane Maintenance Trust, Grand Island,Nebraska. 37 pp. Mr. Timothy Carey 73 Davis, C.A., and P.A. Vohs. 1993. Role of macroinvertebrates in spring diet and habitat use of sandhill cranes. Transcripts of Nebraska Academy of Sciences XX:81-86. DeLonay, A. and C. Rabeni. 1998. Pallid sturgeon movement and habitat use in the lower Missouri River. U.S. Geological Survey-BRD, Environmental and contaminants Research Center, Colombia,MO. Dinan, K.F. 1992. Application of the stream network temperature model to the central Platte River,Nebraska. M.S. Thesis. Department of Fish and Wildlife, Colorado State University, Fort Collins. Dinsmore, J.J. and S.J. Dinsmore. 1988. Piping plover and least tern population and habitat in western Iowa. Unpublished Report. 17pp. Dirks, B.J. 1990. Distribution and productivity of least terns and piping plovers along the Missouri and Cheyenne Rivers in South Dakota. Masters Thesis. South Dakota State University. 64pp. Dougherty, S. 1994. Letter and enclosures regarding acquisition of recharge credits from Riverside Irrigation District to U.S. Fish and Wildlife Service, Colorado Field Supervisor, dated May 24, 1994. 1 pp. Drewien,R.C., W.M. Brown, and W.L. Kendall. 1995. Recruitment in Rocky Mountain greater sandhill cranes and comparison with other crane populations. Journal of Wildlife Management 59:339-356. Duffy, W.G., C.R. Berry and K.D. Keenlyne. 1996. Biology of the pallid sturgeon with an annotated bibliography through 1994. Cooperative Fish and Wildlife Research Unit, Technical Bulletin# 5. South Dakota State University, Brookings. Dagger, K. M. 1997. Foraging ecology and reproduction success of least tems on the lower Mississippi River. Ph.D. Dissertation, University of Missouri, Columbia. 137pp. • Eddy, S., and J.C. Underhill. 1978. How to know the freshwater fishes, 3`d ed. William C. Brown Communications, Inc. Dubuque, Iowa. 215pp. Elser,A.A.,R.C. McFarland, and D. Schwehr. 1977. The effect of altered stream flow on fish of the Yellowstone and Tongue Rivers,Montana. Technical Report No. 8, Yellowstone Impact Study. Water Resources Division, Montana Department of Natural Resources and Conservation, Helena. Erickson, J.D. 1992. Habitat selection and movement of pallid sturgeon in Lake Sharpe, South Dakota. Masters Thesis. South Dakota State University-Brookings. 70pp. Mr. Timothy Carey 74 Eschner, T.R., R.F. Hadley, and K.D. Crowley. 1983. Hydrologic and morphologic changes in channels of the Platte River Basin in Colorado, Wyoming, and Nebraska: a historical perspective. In Hydrologic and Geomorphic Studies of the Platte River Basin. U.S. Geological Survey Professional Paper 1277-A, U.S. Government Printing Office, Washington, D.C. Evans, P.R. 1976. Energy balance and optimal foraging strategies in shorebirds: some implications for their distributions and movements in the nonbreeding season. Ardea 64: 117-139. Evermann, B.W., and U.O. Cox. 1896. Report upon the fishes of the Missouri River basin. Bulletin of the U.S. Fish Commission. Faanes, C.A., 1983. Aspects of the nesting ecology of least terns and piping plovers in central Nebraska. Prairie Naturalist 15:145-154. Faanes, C.A. 1990. A recent record of Eskimo curlew in Nebraska. Prairie Naturalist 22:137- 138. Faanes, C.A. 1992a. Unobstructed visibility at whooping crane roost sites on the Platte River, Nebraska. Pages 117-120 in D. Wood(ed.), Proceedings 1988 North American Crane Workshop, Wales Lake, Florida. Florida Game and Fresh Water Fish Commission, Nongame Wildlife Program Technical Report#12. Faanes, C.A. 1992b. Factors influencing the future of whooping crane habitat on the Platte River in Nebraska. Pages 101-109 in D. Wood (ed.), Proceedings 1988 North American Crane Workshop, Wales Lake, Florida. Florida Game and Fresh Water Fish Commission, Nongame Wildlife Program Technical Report#12. Faanes, C.A., and S. Senner. 1991. Status of Eskimo curlew in North America. American Birds 45:237-239. Fannin, T.F. and B.J. Esmoil. 1993. Metal and organic residues in addled eggs of least terns and piping plovers in the Platte valley of Nebraska. pp150-158. IN: K. Higgins and M.R. Brashier, eds. Proceedings of the Missouri River and its tributaries: least tem and piping plover symposium. 1993. South Dakota State University Brookings, Br000kings. Farrand, J., Jr. 1977. What to look for: Eskimo and little curlews compared. American Birds 31:137-138. Ferland, C.L. and S.M. Haig. 2002. 2001 International piping plover census. U.S. Geological Survey, Forest and Rangeland Ecosystem Science Center, Corvallis, Oregon. 293pp. Federal Energy Regulatory Commission. 1994. Revised Draft Environmental Impact Statement, Kingsley Dam(FERC Project No. 1417) and North Platte/Keystone Diversion Dam(FERC Project No. 1835) Projects,Nebraska. Washington,D.C. Mr. Timothy Carey 75 Fogle, N.E. 1963. Report of fisheries investigations during the fifth year of impoundment of Oahe Reservoir, South Dakota. South Dakota Department of Game, Fish, and Parks, D.J. Project F-1-R-12, Job 10-11-12. 35 pp. Forbes, S.A. and R.E. Richardson. 1905. On a new shovelnose sturgeon from the Mississippi River. Bulletin of the Illinois State Laboratory of Natural History 7:37-44. Freeman, C.C., and R.E. Brooks. 1989. Status report on Platanthera praeclara Sheviak and Bowles (western prairie fringed orchid) in Kansas, Nebraska, and South Dakota. Freeman, P.W., and K. Perkins. 1992. Survey of mollusks of the Platte River. Final Report to the U.S. Fish and Wildlife Service. University of Nebraska State Museum, Lincoln. 27 pp. + appendices. Fremling, C.R., J.L. Rasmussen, R.E. Sparks, S.P. Cobb, C.F. Bryan, and T.O. Claflin. 1989. Mississippi River fisheries: a case history. Pages 309-351 in D.P. Dodge [ed.] Proceedings of the International Large River Symposium. Canadian Special Publication of Fisheries and Aquatic Sciences 106. Fry, F.E.J. 1971. The effect of environmental factors on the physiology of fish. Pages 1-98 in W.S. Hoar and D.J. Randall, eds. Fish physiology. Volume VI. Environmental relations and behavior. Academic Press. 559 pp. Funk, J.L., and J.W. Robinson. 1974. Changes in the channel of the lower Missouri River and effects on fish and wildlife. Missouri Department of Conservation, Aquatic Series 11, Jefferson City. Gardner, B. 1999. Pallid sturgeon studies above Fort Peck Reservoir 1996-1998. In S. Krentz, ed. Pallid Sturgeon Recovery Update. Issue 10. Gardner, W.M. and P. Stewart. 1987. The fishery of the lower Missouri River, Montana. Federal Aid-Fish and Wildlife Restoration, Project F-46-R-5, Study No. 3. Montana Dept. of Fish, Wildlife& Parks,Helena. Gilbraith, D.M., M.J. Schwalbach, and C.R. Berry. 1988. Preliminary report on the status of the pallid sturgeon,Scaphirhyncus albus, a candidate endangered species. Department of Wildlife and Fisheries Sciences, South Dakota State University, Brookings. Goldowitz, B. 1996. Summer fish kills in the central Platte River: a summary of events, 1974- 1995. Platte River Whooping Crane Maintenance Trust Report. August 1996. Gollop, J.B., T.W. Bally, and E.H. Iversen. 1986. Eskimo curlew: a vanishing species? Saskatchewan Natural History Society, Special Publication 17. Mr. Timothy Carey 76 Goossen,J.P., D.L. Amirault, J. Arndt,R. Bjorge, S. Boates, J. Brazil, S. Brechtel, R. Chiasson, G.N. Corbet, R. Curley, M. Elderkin, S.P. Flemming, W. Harris, L. Heyens, D. Hjertaas,M. Hout, B. Johnson, R. Jones, W. Koonz, P. LaPorte,D. McAskill, R. I. G. Morrison, S. Richard,F. Shaffer, C. Stewart, L. Swanson and E. Wiltse. 2002. National recovery plan for piping plover(Charadrius melodus). National Recovery Plan No. 22. Recovery of Nationally Endangered Wildlife, Ottawa. 47pp. Goss-Custard, J.D. 1977a. The ecology of the Wash. III. Density-related behavior and the possible effects of a loss of feeding grounds on wading birds (Charadrii). Journal of Applied Ecology 14:721-739. Goss-Custard,J.D. 1977b. The energetics of prey selection by redshank Tringa totanus in relation to prey density. Journal of Animal Ecology 46:1-19. Goss-Custard, J.D. 1979. Role of winter food supplies in the ecology of common British wading birds. 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Iowa State Conservation Commission 74-3. 68 pp. Henszey,R.J., and T.A. Wesche. 1993. Hydrologic components influencing the condition of wet meadows along the Platte River,Nebraska. Report to the Nebraska Game and Parks Commission,Lincoln. Habitech Inc., Laramie, Wyoming. 84 pp. Hesse, L.W. 1994. Status of Nebraska fishes in the Missouri River 5. Transactions of the Nebraska Academy of Sciences. Volume 21:99-108. Hesse, L.W., and G.E. Mestl. 1993. The status of paddlefish in the Missouri River,Nebraska. Progress Report, D-J Project F-75-R,Nebraska Game and Parks Commission,Norfolk, Nebraska. 31 pp. Howe, M.A. 1989. Migration of radio-marked whooping cranes from the Aransas-Wood Buffalo population: Patterns of habitat use,behavior, and survival. U.S. Fish and Wildlife Service, Fish and Wildlife Technical Report 21. 33 pp. Hurley, K.L. 1996. Habitat use, selection, and movements of middle Mississippi River pallid sturgeon and validity of pallid sturgeon age estimates from pectoral fin rays. Masters Thesis. Southern Illinois University at Carbondale. 82pp. Hurr, R.T. 1983. Ground water hydrology of the Mormon Island Crane Meadows Wildlife Area near Grand Island, Hall County,Nebraska. Pages H1-H12, in Hydrologic and Geomorphical Studies of the Platte River Basin, U.S. Geological Survey Professional Paper 1277, Washington, D.C. Jernigan, L., R. Soots, J. Parnell and T. Quay. . 1978. Nesting habits and breeding populations of the least tern in North Carolina. North Carolina Sea Grand Publications. UNC-SG-7-07. 39pp. Johnsgard, P.A. 1980. A revised list of the birds of Nebraska and adjacent plains States. Occasional Paper No. 6, Nebraska Ornithologists Union, Lincoln. 170 pp. Johnsgard,P.A. 1996. Museum notes - The cranes of Nebraska. University of Nebraska State Museum. IN: B.C. Ratcliffe, ed. February 1996. Number 93. 4pp. Mr. Timothy Carey 78 Johnson, C.W. -1994. Woodland cxpansion in the Platte River,Nebraska: Patterns and causes. Ecological Monographs 64: 45-84. Johnson, C.W. 1996. Final Report: Channel equilibrium in the Platte River, 1986-1995. Department of Horticulture, Forestry, Landscape, and Parks, South Dakota State University, Brookings. 35 pp. Johnson, K.A. 1982. Whooping crane use of the Platte River, Nebraska--history, status, and management recommendations. Pages 33-43 in J. Lewis(ed.), Proceedings 1981 Crane Workshop, Grand Teton National Park, Wyoming. Johnson,K.A., and S.A. Temple. 1980. `1he migratory ecology of the whooping crane (Grus americana). Draft document. University of Wisconsin, Madison. Johnson,R. 1987. Least tern survey of the Wabash River 1987, and evaluation of available habitat. Endangered Species Progress Report E-1-1. Indiana Department of Natural Resources. Jones, K.H. 2001. 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Updated Report. Office of Ecosystem Protection and Remediation, U.S. Environmental Protection Agency, Region VIII, Denver, Colorado. Zander, B. 1996. Review of instream flows and ambient Nebraska water quality temperature standards of the Platte River downstream of the Kingsley Darn Project(FERC 1417) and Keystone Diversion Dam Project (FERC 1835). Second Updated Report. Office of Ecosystem Protection and Remediation,U.S. Environmental Protection Agency, Region VIII, Denver, Colorado. Ziewitz, J.W., J.G. Sidle, and J.J. Dinan. 1992. Habitat conservation for nesting least terns and piping plovers on the Platte River,Nebraska. Prairie Naturalist 24:1-20. Mr. Timothy Carey 90 Personal Communication Citations - Bollig, H. 2000. Personal Communication. Hatchery Manager. U.S. Fish and Wildlife Service. Gavins Point National Fish Hatchery. Yankton, SD. Braaten, P. 2003. Personal Communication. U.S. Geological Survey: Glascow, MT. Holm, R. 1998. Personal Communication. Hatchery Manager. 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ENT OFT 4 P�-sT/ -yF 3t' y rJ. t 0 '11 I' United States Department of the Interior FISH AND WILDLIFE SERVICE Ecological Services 755 Parfet Street, Suite 361 Lakewood, Colorado 80215-5599 N REPLY REFER TO: ES/CO: COE-Omaha MS 65412 LK APR 2 1 2005 filer 2425�k��1. � Tim Carey, Project Manager U.S. Army Corps of Engineers A.41 Denver Regulatory Office 9307 South Wadsworth Boulevard tbli E``t�tto`g8�9 Littleton, Colorado 80128-6901 Application No.: 200080189 Applicant: Aggregate Industries Dear Mr. Carey: The U.S. Fish and Wildlife Service (Service)received your letter of April 13, 2005, regarding the Wattenberg Lakes project referenced above. You requested concurrence that the project, as proposed, may affect, but is not likely to adversely affect the bald eagle,Haliaeetus leucocephalus, a threatened species. These comments have been prepared under the provisions of the Endangered Species Act of 1973, as amended(16 U.S.C. 1531 et. seq.) (ESA); the Bald and Golden Eagle Protection Act, 16 U.S.C. 668 et seq. (BGEPA); and the Migratory Bird Treaty Act of 1918, as amended, 16 U.S.C. 703 et. seq. (META). For the reasons described below, the Service concurs with your conclusion that the proposed project, may affect, but is unlikely to adversely affect, the bald eagle on and near the project site. Project Background The Wattenberg Lakes project proposes aggregate extraction and reservoir creation on a 421-acre site within the flood plain of the South Platte River in Weld County, Colorado. In a letter to the Corps dated May 10, 2001, the Service commented on winter bald eagle use in the project area, but did not indicate that the proposed project was likely to adversely affect the bald eagle on or near the site. From 2001 to 2004, Service concerns regarding the project centered on avoidance and minimization of impacts to wetlands and wildlife on site, and water depletions to the Platte River system associated with the project that affect listed species (including the bald eagle) downstream in Nebraska. 2 In February 2005 bald eagles were observed constructing a nest on the project site. At a February 25, 2005, on-site meeting and a March 10, 2005, meeting at Aggregate Industries offices, modifications to project plans were discussed that would avoid adverse impacts to the nesting eagles. Measures to avoid impacts to bald eagles were described in the "Wattenberg Lakes Biological Assessment Supplement" (BA Supplement) by Savage and Savage Environmental, that was forwarded to the Corps March 24, 2005. Your letter of Apri113, 2005, listed some of the measures proposed in the BA Supplement: • Establishment of a 0.25-mile buffer zone centered at the tree that contains the bald eagle nest on the project site. • Construction of an earthen berm approximately 10 feet in height along the boundary of the Phase 1/Pond 3 area where the mining impinges on the buffer zone. • Changes to proposed phasing of operations on site. • Annual monitoring of bald eagles and the nest during the duration of the project. The BA Supplement also described some work within the buffer zone in Phase 1/Pond 3 that would occur outside the eagle breeding season, between August 1 and November 14. Your letter also included a proposed permit condition addressing Phase 3 of the project. It stated: • No operations in Phase 3/Pond 2 are approved within the buffer zone without an amendment to the attached Biological Opinion that demonstrates the applicant's ability to protect bald eagles and their nests adjacent to Phase3/Pond 2 operations. We would prefer different wording that would address section 7 of the ESA and protections afforded by other Federal legislation. Suggested wording for this permit condition follows: • No operations in Phase 3/Pond 2 and Mining Area 2 are approved within the buffer zone without Corps of Engineers and Fish and Wildlife Service review of the applicant's ability to protect bald eagles and their nests adjacent to Phase3 operations, consistent with provisions of the Endangered Species Act, the Bald and Golden Eagle Protection Act, and the Migratory Bird Treaty Act. Given the conservation measures proposed by the applicant to avoid impacts to bald eagles on the site and inclusion of a permit condition regarding further review of the project prior to any work within the buffer zone in Phase 3, the Service concurs with your conclusion that the proposed project, may affect, but is unlikely to adversely affect, the bald eagle on and near the project site. These measures do not assure that project operations, as permitted by the Corps, will not result in adverse effects to the bald eagle. Although absolution from liability under the ESA, BGEPA, and MBTA is not possible, the Service Division of Law Enforcement and the Department of 3 Justice have used enforcement and prosecutorial discretion when companies/individuals have made efforts to avoid the unauthorized take of eagles and other migratory birds. As always, reinitiation of consultation under the ESA is required, (1) if unauthorized take occurs, (2) new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion, (3) the agency action is subsequently modified in a manner that causes an adverse effect to the listed species or critical habitat that was not considered in this opinion, or (4) a new species is listed or critical habitat designated that may be affected by the action. We continue to work toward completion of a biological opinion regarding project impacts to listed species, including the bald eagle, along the Platte River in Nebraska. If the Service can be of further assistance, please contact Peter Plage of this office at (303) 275- 2370. Sincerely, Susan C. Linner Colorado Field Supervisor pc: FWS/R6 (B. Fahey) CDOW, Ft. Collins, CO (B. Bibles) EPA, Denver, CO (S. Fowler) Plage Vana-Miller PP1age:COE\2000.80189g:042005 February 15, 2005 Mr. Ed Holloway Petroleum Management LLC 4731 W. 10" Street, Suite G AGGREGATE Greeley, CO 80634 €k3:isTP:Es RE: Weld County Permit Application USR-1350—Wattenberg Lakes Proposed Sand and Gravel Mining Operation and Reservoir Construction Located in: Portions of Sections 25 and 36,TIN,R67W of the 6th P.M.; and; Portions of Section 30 T1N, R66W of the 6th P.M. Weld County Colorado Dear Ed: Thank you for taking time to meet with me last Friday regarding appropriate mining setbacks and access requirements for Petroleum Management's Struck#1 facilities. Based upon our discussion,AI proposes as follows: Al will provide Petroleum Management with twenty-four hours per day, seven days per week access to its existing oil and gas facilities and, unless otherwise agreed upon between Al and Petroleum Management,Al will maintain the following minimum set-backs from such facilities: Wellheads and Production Facilities. Al will mine no closer than 75-feet from the wellhead and will maintain a 125-foot setback along a 180-dgree arc around the wellhead at all times,thus as mining progresses around the well-head,AI will assure that a minimum 125-foot area will be backfilled within a 180-degree arc. All mined areas around the well-head will be finally backfilled to a minimum of 125-feet by 125-feet from the well-head to top of slope and then sloped at a minimum of 3:1,with all backfilling around the well-head to be completed within one year of mining,however, upon 60-days notice by Petroleum Management AI will assure a minimum 125-foot by 125-foot working surface to Petroleum Management. Production Facilities. Al will maintain a minimum mining set-back of 35 feet from production facilities with such area to be reclaimed to a minimum 3:1 slope from the 35-foot set-back. Flowlines and Pipelines_ AI will maintain a minimum mining set-back of 30- feet from existing flowlines and pipelines with such areas to be reclaimed to a minimum 3:1 slope from the 30-foot setback. Access Road. AI will provide a minimum 30-foot wide access throughout mining and upon final reclamation. While we discussed maintaining a 150-foot setback along a 180-degree arc around the wellhead at all Aggregate Industries West Central Region, Inc Connie Nickle Davis,Land Resources 1707 Cole Blvd., Suite 100 P.O.Box 337231,Greeley,CO 80633 Golden, CO 80401 970-336-6526 Fax:970-378-6856 e.. C....mI flnn...+.unity Fn,ninvnr S AGGREGATE II DJSTRI ES Mr.Ed Holloway,Petroleum Management LLC February 15,2005 Page Two times,the final 125-foot back-filling requirement agreed upon does not make this a logical approach- I therefore adjusted the language in the wellhead paragraph accordingly. If the above standards are acceptable, please sign the acknowledgement below and return this letter to me. Very truly yours, ( -C 7- c. Connie Nickle Davis Land Resources Assistant ACKNOWLEDGEMENT STA I L OF COLORADO ) )ss. County of Weld ) The undersigned hereby acknowledges that the mining and reclamation standards set forth herein adequately incorporate the oil and gas activities of Petroleum Management on the subject property of USR-1350, Wattenberg Lakes. Petroleum Management 1 / e.:Z By: �1 The above and foregoing was acknowledged before me this N fl o day of re hr vc:i y 2005,by idii-,2 d 4,de2-✓e,y as Mtn(Gr.;-v tuna b r r for if Petroleum Management. Witness my hand and official seal. ( SEAL) ,-a it/72C-6--) Notary Public My Commission expires: /p I z jot:: cc: Aggregate Industries-WCR,Inc. -File Connie Nickle Davis,Land Resources P.O.Box 337231,Greeley,CO 80633 970-336-6526 Fax:970-378-6856 Aggregate Industries/Kerr-McGee Communications re Wattenberg Weld County USR 1350—Wattenberg Lakes Following is a list of Aggregate Industries' (AI)communications and attempted communications with Kerr McGee(KM): 1. 9/13/01 —Bill Schenderlein original notice to Chris Greneaux at Kerr McGee re Weld Planning Commission hearing on 10/16/01. 2. 10/4/01 —Bill Schenderlein and Connie Davis meeting with Chris Greneaux and Matt Miller;reviewed maps and discussed options with regard to existing and future facilities and possible language for agreement that would acknowledge those options 3. 12/19/01 —Connie Davis sent letter by certified mail to Chris Greneaux reviewing the 10/4/01 discussion and proposing language for an agreement(postal return receipt received). 4. 8/6/04—Connie Davis sent letter by certified mail to Kerr McGee re notice of resumption of permit processes together with reduced copy of DMG Exhibit C Mining Plan with 800-foot and 400-foot drill pads added to drawing. (Postal return receipt received). 5. 8/19/04—While discussing another matter with Matt Miller of Kerr McGee,Connie Davis inquired re the status of the 8/6/04 letter. Matt was not aware of the letter but advised that he and Chris Greneaux would still be the persons with whom AI should meet. Possible meeting dates were discussed and Matt advised that it should be arranged with Chris Greneaux. 6. 8/20/04—Connie Davis called and left VM for Chris Greneaux inquiring if 8/6/04 letter had been given to him and requesting a meeting. 7. 8/23/04—Chris Greneaux returned call, stating that he had not seen the letter. Connie Davis e-mailed 8/6/04 letter and referenced enclosures to Chris and also mailed hard copies to his attention. Scheduled meeting with Chris and Matt Miller for 8/27/04. 8. 8/27/04—met with Chris Greneaux and Matt Miller and reviewed large-scale DMG Exhibit C(without drill pads)and small-scale Exhibit C with drill pads overlaid that had been mailed. Per Chris and Matt's request, a copy of the large-scale Exhibit C was left for them to draw in and note Kerr-McGee facilities and interests. Discussed mining setbacks from existing facilities and directional drill locations for future access to additional interests(noted on copy of DMG Exhibit C drawing during the meeting). Also left with them a copy of the December 19, 2001 letter with proposed language for an agreement. 9. 9/16/04—Connie Davis e-mail to Chris Greneaux requesting response with at least respect to certain areas where AI needed information in order to proceed with pre- mining/slurry wall design work;no response. 10. 9/23/04—Connie Davis mailed letter by certified mail to Chris Greneaux referencing 9/16/04 e-mail, acknowledging error in referencing Merit facilities in that e-mail and re- iterating M's need for obtaining information requested in that e-mail and reviewing the information discussed at the 8/27/04 meeting.(postal delivery receipt received). 11. 11/11/04—Connie Davis called and left VM and sent e-mail to Chris Greneaux,cc'd to Matt Miller,re-iterating info request as contained in the 9/23/04 letter. Received a read receipt from Matt Miller for the e-mail. 12. 11/29/04—Connie Davis received an e-mail from Chris Greneaux advising that they would not locate their facilities on the map and requesting that we do so at some point to use as an exhibit to the eventual surface use agreement.* He advised that Kerr McGee was not interested in selling any of its interests, and he advised that he and Matt would review the proposed language(as provided to them originally in December,2001)but that it would take some time to do so. *The large scale Exhibit C provided to KM during the 8/27/04 meeting in fact identified KM facilities including pipelines. It was at KM's request that they retain that drawing as the basis for adding more detail. A reduced copy of that drawing is attached,and both the Special Review Extraction Plan as submitted with the Weld County USR application and the final plat of the Extraction Plan(Sheet 2 dated 11/17/05)delineate the existing KM facilities and pipelines. NOTES 1. Per 8/27/04 meeting,KM states that they have no interests in: • Phase 1,MA 3 (shown as Phase II MA 3 on final plat dated 11/17/05) • Phase 1,MA 2(shown as Phase III MA 2 on final plat dated 11/17/05) • Phase 2,Pond 1 (remains the same on final plat dated 11/17/05) 2. Per 11/29/04 e-mail from Chris Greneaux,KM is not willing to plug and abandon,relocate or sell their interest in: • Phase 1,Pond 2 existing facility(shown as Phase III MA 1 on final plat dated 11/17/05) • Phase III,Pond 3 future interests in E 'A, SE'/.(shown as Phase I Pond 3 on final plat dated 11/17/05) o KM indicated during 8/27/04 meeting that they could directional drill from drill pads in W'A of SE ' which are outside proposed limits of mining. These locations are noted on final plat dated 11/17/05. 4.Kerr McGee has one existing facility within the proposed limits of mining: • Phase 1,Pond 2 (shown as Phase III Pond 2 MA on final plat dated 11/17/05). o KM indicated at 8/27/04 meeting that mining could occur to within 70 to 80-feet of existing well-heads(notes show 80,we put 70 on the map),with the area to be backfilled to 140 to 150-feet on at least three sides(per discussions,this does not have to be a 150-foot radius from well-head,they just need sufficient room to get drill rig in and tie-down if they have to come in and re-work the well). • AI will maintain appropriate set-backs from existing facilities in accordance with State Division of Minerals and Geology regulations. 5. 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' .. _ E ma I.Ir4 '_ - _ _ 2-_, .,---r-,....,.%„ —,, ‘., N` 4 o a F t�4-, 4 © °I ,%.•�,.._ ,_, Q • • ZNom: Z - Y I ® 3 I � a C m e J STATE OF COLORADO Bill Owens,Governor op•co� Douglas H.Benevento,Executive Director ,�� qb yc Dedicated to protecting and improving the health and environment of the people of Colorado • * 4300 Cherry Creek Dr.S. Laboratory Services Division *tca Denver,Colorado 80246-1530 8100 Lowry Blvd. *1876` Phone(303)692-2000 Denver,Colorado 80230-6928 TDD Line(303)691.7700 (303)692-3090 Colorado Department Located in Glendale,Colorado - ^-y of Public Health http://www.cdphe.state.co.us 4? and Environment July 13, 2004 Aggregate Industries-WCR, Inc. 1707 Cole Boulevard, Suite 100 Golden, Colorado 80401 Re: Section 401 Water Quality Certification Colorado 401 Certification No.: 4021 US Army Corps of Engineers 404 Permit No.: 200080189 Description: Excavate aggregate and construct water storage reservoirs in the area. Sand and gravel deposits will be either wet or dry-mined, and conveyors will be installed to transport the material across the South Platte River to an existing processing facility. Location: Sections 25 and 36, Township 1 North, Range 67 West in Weld County, Colorado. Watercourse:Huett Ditch, Lupton Slough, adjacent wetlands, and South Platte River, South Platte River Basin, Segment COSPUS 16 of Upper South Platte River Sub-basin. Designation: Use Protected • Dear Applicant: The Colorado Department of Public Health and Environment (CDPHE), Water Quality Control Division(Division)has completed its review of the subject Clean Water Act(CWA) Section 404 Permit Application, and our preliminary determination with the issuance of the State of Colorado 401 Certification Public Notice (5 CCR 1002-82.5(B)). This segment is designated "Use Protected" thus no antidegradation review is required. This letter shall serve as official notification that the Division is issuing "Regular Certification" in accordance with 5 CCR 1002-82.5(A)(2). The 401 Certification issued by the Division pursuant to 5 CCR 1002-82.3(C) shall apply to both the construction and operation of the project for which a federal license or permit is required, and shall apply to the water quality impacts associated with the project. This certification does not constitute a relinquishment of the Division's authority as defined in the Colorado Water Quality Control Act, nor does it fulfill or waive any other local, state, or federal regulations. Aggregate Industries,WCR,Inc. July 13,2004 Page 2 If you have any questions or need additional information, please contact John C. Hranac at (303) 692-3586. Sincerely, ee_ d . John C. ac Water Quality Assessor Water Quality Control Division Colorado Department of Public Health and Environment Attachment cc: US Army Corps of Engineers, Denver Regulatory Office US Army Corps of Engineers, Omaha District Office Applicant's Agent, Mr. Brad Florentin, Applegate Group District Engineer,Mr. Brad Simons, Water Quality Control Division w/o attachment File Section 401 Certification Requirements State of Colorado (A) The following requirements shall apply to all certifications: (1) Authorized representatives from the Division shall be permitted to enter upon the site where the construction activity or operation of the project is taking place for purposes of inspection of compliance with BMPs and certification conditions. (2) In the event of any changes in control or ownership of facilities where the construction activity or operation of the project is taking place, the successor shall be notified in writing by his predecessor of the existence of the BMPs and certification conditions. A copy of such notification shall be provided to the Division. (3) If the permittee discovers that certification conditions are not being implemented as designed, or if there is an exceedance of water quality standards despite compliance with the certification conditions and there is reason to believe that the exceedance is caused, in whole or in part, by the project, the permittee shall verbally notify the Division of such failure or exceedance within two (2) working days of becoming aware of the same. Within ten (10)working days of such notification, the permittee shall provide to the Division, in writing, the following: (a) In the case of the failure to comply with the certification conditions, a description of(i) the nature of such failure, (ii) any reasons for such failure, (iii) the period of noncompliance, and (iv)the measures to be taken to correct such failure to comply; and (b) In the case of the exceedance of a water quality standard, (i) an explanation, to the extent known after reasonable investigation, of the relationship between the project and the exceedance, (ii) the identity of any other known contributions to the exceedance, and (iii) a proposal to modify the certification conditions so as to remedy the contribution of the project to the exceedance. (4) Any anticipated change in discharge location and/or quantities associated with the project which may result in water quality impacts not considered in the original certification must be reported to the Division by submission of a written notice by the permittee prior to the change. If the change is determined to be significant, the permittee will be notified within ten days, and the change will be acknowledged and approved or disapproved. (5) Any diversion from or bypass of facilities necessary to maintain compliance with the terms and conditions herein is prohibited, except (i) where unavoidable to prevent loss of life or severe property damage, or (ii) where excessive storm drainage or runoff would damage any facilities necessary for compliance with limitations and prohibitions 401 Certification Requirements.doc herein. The Division shall be notified immediately in writing of each such diversion or bypass. (6) At least fifteen days prior to commencement of a project in a watercourse, which the Division has certified, or conditionally certified, the permittee shall notify the following: (a) Applicable local health departments; (b) Owners or operators of municipal and domestic water treatment intakes which are located within twenty miles downstream from the site of the project; and (c) Owners or operators of other intakes or diversions which are located within five miles downstream from the site of the project. The permittee shall maintain a list of the persons and entities notified, including the date and form of notification. (7) Immediately upon discovery of any spill or other discharge to waters of the state not authorized by the applicable license or permit, the permittee shall notify the following; (a) Applicable local health departments; (b) Owners or operators of municipal and domestic water treatment intakes which are located within twenty miles downstream from the site of the project; and (c) Owners or operators of other intakes or diversions which are located within five miles downstream from the site of the project. The permittee shall maintain a list of the persons and entities notified, including the date and form of notification. (8) Construction operations within watercourses and water bodies shall be restricted to only those project areas specified in the federal license or permit. (9) No construction equipment shall be operated below the existing water surface unless specifically authorized by the 401 certification issued by the Division. (10) Work should be carried out diligently and completed as soon as practicable. To the maximum extent practicable, discharges of dredged or fill material shall be restricted to those periods when impacts to designated uses are minimal. 401 Certification Requirements.doc (11) The project.shall incorporate provisions for operation, maintenance, and replacement of BMPs to assure compliance with the conditions identified in this section, and any other conditions placed in the permit or certification. All such provisions shall be identified and compiled in an operation and maintenance plan which will be retained by the project owner and available for inspection within a reasonable timeframe upon request by any authorized representative of the Division. (12) The use of chemicals during construction and operation shall be in accordance with the manufacturers specifications. There shall be no excess application and introduction of chemicals into state waters. (13) All solids, sludges, dredged or stockpiled materials and all fuels, lubricants, or other toxic materials shall be controlled in a manner so as to prevent such materials from entering state waters. (14) All seed, mulching material and straw used in the project shall be state certified weed-free. (15) Discharges of dredged or fill material in excess of that necessary to complete the project are not permitted. (16) Discharges to state waters not identified in the license or permit and not certified in accordance therewith are not allowed, subject to the terms of any 401 certification. (17) Except as otherwise provided pursuant to subsection 82.7(C), no discharge shall be allowed which causes non-attainment of a narrative water quality standard identified in the Basic Standards and Methodologies for Surface Waters, Regulation #31 (5 CCR 1002-31), including, but not limited to discharges of substances in amounts, concentrations or combinations which: (a) Can settle to form bottom deposits detrimental to beneficial uses; or (b) Form floating debris, scum, or other surface materials sufficient to harm existing beneficial uses; or (c) Produce color, odor, or other conditions in such a degree as to create a nuisance or harm existing beneficial uses or impart any undesirable taste to significant edible aquatic species, or to the water, or (d) Are harmful to the beneficial uses or toxic to humans, animals, plants, or aquatic life; or (e) Produce a predominance of undesirable aquatic life; or (0 Cause a film on the surface or produce a deposit on shorelines. 401 Certification Requirements.doc (B) Best Management Practices: (1) Best management practices are required for all projects for which Division certification is issued except for section 402 permits. Project applicants must select BMPs to be employed in their project. A listing and description of best management practices is located in Appendix I of Regulation No. 82: 401 Certification Regulation 5 CCR 1002-82. (2) All requests for certifications which require BMPs shall include a map of project location,a site plan, and a listing of the selected BMPs chosen for the project. At a minimum, each project must provide for the following: (a) Permanent erosion and sediment control measures that shall be installed at the easiest practicable time consistent with good construction practices and that shall be maintained and replaced as necessary throughout the life of the project. (b) Temporary erosion and sediment control measures that shall be coordinated with permanent measures to assure economical, effective, and continuous control throughout the construction phase and during the operation of the project. 401 Certification Requirements.doc Hello