20220908 - NRA - Badger Gulch Sanitary Sewer.pdf

Denver • Durango • Hotchkiss • Idaho www.eroresources.com

Consultants in Natural Resources and the Environment

Natural Resources Assessment Badger Gulch Sanitary Sewer Line Douglas County, Colorado

Prepared for—

Rampart Range Metropolitan District No. 5 c/o CliftonLarsonAllen LLP 8290 East Crescent Parkway, Suite 300 Greenwood Village, Colorado 80111

(303) 779-5710

Prepared by—

ERO Resources Corporation 1842 Clarkson Street Denver, Colorado 80218

(303) 830-1188 ERO Project #22-180

September 8, 2022 http://www.eroresources.com/

ERO Project #22-180 i

Contents

Executive Summary ................................................................................................................ ii

Introduction

Project Location

Project Area Description

Wetlands and Waters of the U.S Background Project Area Conditions and Regulations Recommendations

Threatened, Endangered, and Candidate Species

Other Species and Habitats of Concern Black-Tailed Prairie Dog Western Burrowing Owl Raptors and Migratory Birds High Priority Habitat and Big Game

Aquatic Native Species Conservation Waters Mule Deer Pronghorn

Other Wildlife

References

Tables

Table 1. Federally threatened, endangered, and candidate species potentially found in in the project area or potentially affected by the project

Figures

Figure 1. Vicinity Map Figure 2. Existing Conditions Figure 3. Nest Survey

Appendices

Appendix A Photo Log

ERO Project #22-180 ii

Executive Summary

Rampart Range Metropolitan District No. 5 (RRMD5) retained ERO Resources Corporation (ERO) to provide a natural resources assessment for the Badger Gulch Sanitary Sewer Line in Douglas County, Colorado (project area). ERO assessed the project area for potential wetlands and other waters of the U.S., federally listed threatened and endangered species habitat, and general wildlife use. Below is a summary of the resources found at the project area and recommendations or future actions necessary based on the current site conditions and federal, state, and local regulations.

The natural resources and associated regulations described in this report are valid as of the date of this report and may be relied upon for the specific use for which it was prepared by ERO under contract to RRMD5. Because of their dynamic natures, site conditions and regulations should be reconfirmed by a qualified consultant before relying on this report for a use other than that for which ERO was contracted.

Wetlands and Other Waters of the U.S. – One ephemeral drainage (Badger Gulch) is shown on the U.S.

Geological Survey (USGS) Parker topographic quadrangle map and the USGS National Hydrography Dataset as occurring along the eastern project area boundary; however, no wetlands or other waters were observed within the project area boundary during the 2022 site visit. As long as project activities avoid impacts on Badger Gulch, no further action regarding wetlands or other waters of the U.S. is necessary.

Threatened and Endangered Species – The project area does not contain habitat for any federally listed threatened or endangered species and no further action regarding federally listed threatened or endangered species is necessary.

Prairie Dogs – Areas of an active black-tailed prairie dog colony were observed in the project area during the 2022 site visit. Colorado Parks and Wildlife (CPW) recommends removing prairie dogs in a humane manner before any earthwork or construction takes place. Currently, the city of Lone Tree does not have any regulations or policies pertaining to prairie dogs. However, Douglas County Parks and Open Space has policies for Prairie Dog Conservation that outline a series of steps to be attempted in situations where the continued existence of a prairie dog colony conflicts with the intended land use (Douglas County 2022).

Burrowing Owls – Burrowing owls could be impacted by the project if work would occur within the CPW-recommended ⅛-mile (660-foot) buffer of any prairie dog burrow (Colorado Parks and Wildlife 2020). If work would occur within the recommended buffer of any burrow during the breeding season (March through October), a burrowing owl survey should be conducted. If owls are present in the project area, activities should be restricted within 660 feet of nest burrows until the owls have migrated from the site, which can be determined through monitoring.

Migratory Birds – ERO observed three unoccupied raptor nests in the vicinity of the project area during the 2022 site visit. These raptor nests, if occupied during the nesting season, could be impacted by the project if there would be human encroachment activities or a physical object or structure is proposed within the CPW-recommended buffer permanently or for a significant amount of time (Colorado Parks and Wildlife 2020). The best way to avoid impacting migratory birds is to conduct ground-clearing activities and construction activities during the nonnesting season. The Eastern Colorado Field Office of the U.S. Fish and Wildlife Service (U.S. Fish and Wildlife Service 2009) and Colorado Department of

ERO Project #22-180 iii

Transportation (Colorado Department of Transportation 2011) have identified the primary nesting season for migratory birds in eastern Colorado as occurring from April 1 to August 31. However, some birds (e.g., eagles, owls, and red-tailed hawks) can nest as early as February or March. Because of variability in the breeding seasons of various bird species, additional nest surveys during the nesting season may also be warranted. ERO recommends that a nest survey be conducted within one week prior to construction to determine if any active nests are present in or near the project area so they can be avoided. Additional surveys may also be warranted to identify active nesting species that could affect development timing (e.g., eagles or red-tailed hawks). If active nests are found, any work that would destroy the nests should not be conducted until the birds have vacated the nests. If possible, ground-clearing activities should occur outside of the migratory bird breeding season, generally April 1 through August 31.

Other Wildlife – CPW released a High Priority Habitat (HPH) table that identifies species and habitats, as well as recommendations to avoid and minimize impacts on wildlife from land use development (Colorado Parks and Wildlife 2021b). An Aquatic Native Species Conservation Water HPH area overlaps the project area, and the project area occurs in mule deer and pronghorn overall range, and pronghorn limited use area (Natural Diversity Information Source 2021). Wildlife, including mule deer and pronghorn, could be temporarily displaced from the project area during construction; however, the project is unlikely to have a long-term adverse effect on HPH areas.

ERO Project #22-180 1

Natural Resources Assessment Badger Gulch Sanitary Sewer Line

September 8, 2022

Introduction

Rampart Range Metropolitan District No. 5 (RRMD5) retained ERO Resources Corporation (ERO) to provide a natural resources assessment for a proposed sanitary sewer alignment along Badger Gulch in Lone Tree, Douglas County, Colorado (project area; Figure 1). On July 25, 2022, Heidi Gerstung, an ecologist with ERO, assessed the project area for natural resources (2022 site visit). During this assessment, activities included a review of potential wetlands and other waters of the U.S. (WOTUS), identification of habitat for federally threatened and endangered species, and identification of other natural resources. In addition to the information gathered during the 2022 site visit, natural resource information was obtained from existing databases and sources such as aerial photography, the Colorado Natural Diversity Information Source (NDIS), Colorado Parks and Wildlife (CPW) map databases, Colorado Natural Heritage Program (CNHP), and other sources (Natural Diversity Information Source 2021; Colorado Parks and Wildlife 2022b; Colorado Natural Heritage Program 2022). This report provides information on existing site conditions and resources, as well as current regulatory guidelines related to those resources. ERO assumes the landowner is responsible for obtaining all federal, state, and local permits for construction of the project.

The natural resources and associated regulations described in this report are valid as of the date of this report and may be relied upon for the specific use for which it was prepared by ERO under contract to RRMD5. Because of their dynamic natures, site conditions and regulations should be reconfirmed by a qualified consultant before relying on this report for a use other than that for which ERO was contracted.

Project Location

The project area is in Sections 13 and 24, Township 6 South, Range 67 West of the 6th Principal Meridian in Lone Tree, Douglas County, Colorado (Figure 1). The UTM coordinates of the approximate center of the project area are 514419mE, 4375318mN of NAD 83 Zone 13N. The longitude/latitude of the project area is 104.832232°W/39.527389°N. The elevation of the project area ranges from 5,900 to 5,950 feet above sea level. Photo points of the project area are shown on Figure 2, and the photo log is in Appendix A.

Project Area

Prepared for: Rampart Range Metropolitan District No. 5 File: 22_180 Figure 1.mxd (GS) September 7, 2022 ±

Figure 1 Vicinity Map

Badger Gulch Sanitary Sewer

Portions of this document include intellectual property of ESRI and its licensors and are used herein under license. Copyright © 2022 ESRI and its licensors. All rights reserved.

0 1,500750 Feet

Location

Pa th

: P

_1

\2

2_

Ba dg er

G ul ch S an ita ry S ew er

L in e N

RA

\M ap s\

_1

F ig ur e 1.

m xd

Sections 13 and 24, T6S, R67W; 6th PM

UTM NAD 83: Zone 13N; 514419mE, 4375318mN

Longitude 104.832232°W, Latitude 39.527389°N

USGS Parker, CO Quadrangle

[b

[b

Ridgegate Parkway

Bristleridge Drive

Me rid ian Vil lag e P ark wa y

Badger Gulch

OHWM 1

OHWM 1

OHWM 1

See Inset 1

Fir st

St re et

See Inset 2

P6

P5

P4

P1

Prepared for: Rampart Range Metropolitan District No. 5 File: 22_180 Figure 2.mxd (GS) September 7, 2022 ±

Figure 2 Existing Conditions

Badger Gulch Sanitary Sewer

0 650325 Feet

Pa th

: P

_1

\2

2_

Ba dg er

G ul ch S an ita ry S ew er

L in e N

RA

\M ap s\

_1

F ig ur e 2.

m xd

Image Source: Google Earth©, June 10, 2021

Photo Point

! Culvert

[b Raptor Nest

Limit of Delineation

Open Water (0.030 ac)

Ordinary High Water Mark (0.198 ac)

Wetland (0.038 ac)

Intermittent Stream (National Hydrography Dataset)

Active Prairie Dog Colony

Project Area Boundary

Inset 1

Wetland 1

OW 1

OHWM 1

Wetland 2

OHWM 1

P2

&OW 2

P3

Inset 2

ERO Project #22-180 4

Project Area Description

The topography of the project area is generally flat, but the surrounding lands slope from plateaus and rolling ridges into tapered drainage basins. The National Land Cover Database (NLCD) maps one primary land cover type in the project area - grassland/herbaceous (U.S. Geological Survey 2016).

Grassland/herbaceous areas are defined by the NLCD as areas dominated by graminoid or herbaceous vegetation, generally greater than 80 percent of the total vegetation.

The overall Badger Gulch Sanitary Sewer Line project area consists of approximately 4,860 feet (0.92 mile) of proposed sewer line, which runs along Badger Gulch from just north of Ridgegate Parkway and heads north to First Street (Figure 1). The southern extent of the project area originates at the culvert outfall from Ridgegate Parkway and terminates just north of the municipal maintenance buildings along First Street (Figure 2).

Badger Gulch, an ephemeral drainage, runs along the eastern project area boundary (Photos 1 and 2) and contains some wetlands and an ordinary high water mark (OHWM) along portions of the gulch (Figure 2). Other portions of the gulch are vegetated with upland species and are characterized as an upland vegetated swale.

Vegetation in the much of the project area currently consists of a mixture of native and nonnative species dominated by kochia (Bassia scoparia), blue grama (Boutelous gracilis), cheatgrass (Bromus tectorum), field bindweed (Convolvulus arvensis), and threeleaf sumac (Rhus trilobata) with some prickly poppy (Argemone polyanthemos), smooth brome (Bromus inermis), rabbitbrush (Chrysothamnus sp.), flixweed (Descurainia sophia), curlytop gum weed (Grindelia squarrosa), sea lavender (Limonium latifolium), Scotch thistle (Onopordum acanthium), western wheatgrass (Pascopyrum smithii), Woods’ rose (Rosa woodsii), scarlet globemallow (Sphaeralcea coccinea), common mullein (Verbascum thapsus), big-bract verbena (Verbena bracteate), and small soapweed (Yucca glauca) (Photos 1 and 2). Areas of an active black-tailed prairie dog (Cynomys ludovicianus) colony occur along the project area (Photo 4).

Unoccupied raptor nests along the central and north portions of the project area were observed during the 2022 site visit (Photos 5 and 6, respectively; Figure 2). Additionally, a few stormwater management structures with temporary standing water occur along the project area (Photo 3).

Wetlands and Waters of the U.S.

Background The Clean Water Act (CWA) protects the chemical, physical, and biological quality of WOTUS. The U.S.

Army Corps of Engineers’ (Corps) Regulatory Program administers and enforces Section 404 of the CWA.

Under Section 404, a Corps permit is required for the discharge of dredged or fill material into wetlands and other WOTUS (streams, ponds, and other waterbodies). On June 22, 2020, the Environmental Protection Agency (EPA) and Corps’ Navigable Waters Protection Rule (NWPR) (U.S. Environmental Protection Agency 2020) to define “waters of the United States” became effective in 49 states and in all

ERO Project #22-180 5

U.S. territories. A preliminary injunction was granted for Colorado. On March 2, 2021, the United States Court of Appeals for the 10th Circuit vacated the stay on the NWPR in Colorado, thereby ruling the NWPR effective in Colorado. After April 23, 2021, jurisdiction of wetlands and other potential WOTUS in Colorado was to be determined using the NWPR. However, on August 30, 2021, the Arizona District Court remanded and vacated the NWPR. In response, the EPA and Corps have halted implementation of the NWPR and, until further notice, are interpreting WOTUS consistent with the pre-2015 regulatory regime (also referred to as the “Rapanos” guidelines). As such, the identification of WOTUS in this report follows the Rapanos guidelines. Potential rulings and guidance in the future could change the results of this report regarding the jurisdictional status of waters and wetlands in the project area.

While ERO may provide its opinion on the likely jurisdictional status of wetlands and waters, the Corps will make the final determination of jurisdiction based on the current rulings.

Under the Rapanos guidelines, the Corps considers traditionally navigable waters (TNWs), wetlands adjacent to a TNW, and tributaries to TNWs that are relatively permanent waters (RPWs) and their abutting wetlands jurisdictional waters. Other wetlands and waters that are not TNWs or RPWs will require a significant nexus evaluation to determine their jurisdiction. A significant nexus evaluation assesses the flow characteristics and functions of a tributary and its adjacent wetlands to determine if they significantly affect the chemical, physical, or biological integrity of downstream TNWs.

Project Area Conditions and Regulations During the 2022 site visit, ERO surveyed the project area for wetlands, streambeds, and open waters;

however, a jurisdictional wetland delineation following Corps guidelines was not conducted during this assessment. One intermittent drainage (Badger Gulch) is shown on the U.S. Geological Survey (USGS) Parker topographic quadrangle map and the USGS National Hydrography Dataset as occurring just east of the project area. During previous assessments conducted by ERO, wetlands and an OHWM were observed along the Badger Gulch (OHWM 1 and Wetland 2; Figure 2). Additionally, an area of open water and wetlands (OW 1 and Wetland 1) were observed southeast of the project area during the 2022 site visit and one area of temporary standing water (OW 2) was observed in the northern portion of the project area (Figure 2). These areas of open water and wetlands appear to be associated with stormwater management structures and would not be considered WOTUS (Federal Register 41217 Vol 51 No. 219, November 13, 1986). The wetlands and open water along Badger Gulch have been previously determined to be jurisdictional (Corps File No. NWO-2015-02227-DEN); however, a new request for an approved jurisdictional determination is pending with the Corps (ERO 2021).

Recommendations

Depending on the new approved jurisdictional determination, if any work is planned along Badger Gulch, a Section 404 permit may be required for the placement of dredged or fill material within wetlands or below the OHWM. No action is necessary regarding the wetlands and open water associated with the stormwater management structures.

ERO Project #22-180 6

Threatened, Endangered, and Candidate Species

ERO assessed the project area for habitat for threatened, endangered, and candidate species under the Endangered Species Act (ESA). Federally threatened and endangered species are protected under the ESA of 1973, as amended (16 United States Code (U.S.C.) 1531 et seq.). Significant adverse effects on a federally listed species or its habitat require consultation with the U.S. Fish and Wildlife Service (Service) under Section 7 or 10 of the ESA. The Service’s Information for Planning and Consultation (IPaC) resource list for the project area identifies several threatened and endangered species that could be potentially affected by the project (Table 1) (Service 2022a).

Table 1. Federally threatened, endangered, and candidate species potentially found in in the project area or potentially affected by the project.

Common Name Scientific Name Status* Habitat

Habitat Present or Potential to be

Affected by Project?

Mammals Gray wolf Canis lupus T Temperate forests, mountains, tundra, taiga, grasslands, and deserts

No

Preble’s meadow jumping mouse (Preble’s)

Zapus hudsonius preblei T Shrub riparian/wet meadows No habitat and located in the block clearance zone Birds

Piping plover** Charadrius melodus T Sandy lakeshore beaches and river sandbars

No habitat and no depletions anticipated

Whooping crane** Grus americana E Mudflats around reservoirs and in agricultural areas

No habitat and no depletions anticipated

Fish Greenback cutthroat trout Oncorhynchus clarki stomias T Clear, swift-flowing mountain streams with cover such as overhanging banks and vegetation and mountain lakes

No

Pallid sturgeon** Scaphirhynchus albus E Large, turbid, free-flowing rivers with a strong current and gravel or sandy substrate

No habitat and no depletions anticipated

Invertebrates Monarch butterfly Danaus plexippus plexippus C Dependent on milkweeds

(Asclepiadoideae) as host plants and forage on blooming flowers;

a summer resident

No

Plants Ute ladies’-tresses orchid

(ULTO)

Spiranthes diluvialis T Moist to wet alluvial meadows, floodplains of perennial streams, and around springs and lakes below 7,800 feet in elevation

No

Western prairie fringed orchid**

Platanthera praeclara T Moist to wet prairies and meadows

No habitat and no depletions anticipated

*T = Federally Threatened Species, E = Federally Endangered Species, C = Candidate for Federal Listing.

ERO Project #22-180 7

**Water depletions in the South Platte River may affect the species and/or critical habitat in downstream reaches in other counties or states.

Source: (U.S. Fish and Wildlife Service 2022).

The proposed project would not affect the gray wolf or greenback cutthroat trout because the project area is outside of the known range of the species and lacks suitable habitat.

The piping plover, whooping crane, pallid sturgeon, and western prairie fringed orchid are species that are affected by depletions to the Platte River system. Based on ERO’s knowledge of the types of activities likely to be implemented as part of the development of the project area, there would be no depletions to the South Platte River. If the project includes activities that deplete water in the South Platte River, such as diverting water from a stream or developing new water supplies, these species could be affected by the project and consultation with the Service may be required.

During the 2022 site visit, ERO assessed the project area for habitat for Preble’s and ULTO. Habitat for Preble’s and ULTO is not present in the project area. The project area is in the Denver metro block clearance zone for Preble’s (U.S. Fish and Wildlife Service 2016). In designating a block clearance zone, the Service eliminated the need for individuals or agencies to coordinate with the Service prior to conducting activities in habitat that otherwise would be deemed to have potential to support Preble’s(Carlson 2000). Although not currently available on the Service’s website, the block clearance zone has been renewed until December 10, 2022. Additionally, the project area occurs completely in previously developed areas, disturbed uplands, and weedy degraded uplands, providing no habitat for Preble’s. The project area does not contain habitat for ULTO because the project area does not contain a perennial tributary to the South Platte River, is in Douglas County, and does not fall within the Service’s habitat guidelines for ULTO surveys (U.S. Fish and Wildlife Service 1992). Because of the reasons listed above, ERO determined that Preble’s and ULTO are unlikely to be present in the project area; therefore, no action is necessary regarding Preble’s and ULTO.

Monarch butterflies migrate through Colorado in the summer, although the project area is not within a designated migration corridor or breeding or overwintering area for this species (U.S. Fish and Wildlife Service 2019). Monarch butterflies are dependent on milkweeds (primarily Asclepias spp.) as a host plant for egg laying and larval development (U.S. Fish and Wildlife Service 2021) and nectar plants for foraging. No milkweeds were observed in the project area during the 2022 site visit. This species may occasionally travel through the project area but are not likely to lay eggs because host plants appear to be lacking. As a candidate species, monarch butterflies are not under federal regulation at this time.

ERO Project #22-180 8

Other Species and Habitats of Concern

Black-Tailed Prairie Dog Species Background The black-tailed prairie dog is a Colorado species of special concern (Colorado Parks and Wildlife 2022a).

Black-tailed prairie dogs are important components of the short and mesic grasslands systems. Threats to this species include habitat loss and degradation, habitat fragmentation, disease (sylvatic plague), and lethal control activities. Typically, areas occupied by prairie dogs have greater cover and abundance of perennial grasses and annual forbs compared with unoccupied sites (Whicker and Detling 1988) (Witmer et al. 2000).

Black-tailed prairie dogs are commonly considered a “keystone” species because their activities (burrowing and intense grazing) provide food and shelter for many other grassland species and have a large effect on community structure and ecosystem function (Power et al. 1996). Prairie dogs can contribute to overall landscape heterogeneity, affect nutrient cycling, and provide nest sites and shelter for wildlife (Whicker and Detling 1988). Species such as black-footed ferret, burrowing owl, prairie rattlesnake, and mountain plover are closely linked to prairie dog burrow systems for food and cover.

Prairie dogs also provide an important prey resource for numerous predators including American badger, coyote, red fox, bald eagle, golden eagle, ferruginous hawk, and other raptors. Prairie dogs also can denude the surface by clipping aboveground vegetation and contributing to exposed bare ground by digging up roots (Kuford 1958) (Smith 1967).

Potential Habitat and Effects Active prairie dog burrows were observed in the project area during the 2022 site visit (Figure 2). Prior to construction, CPW recommends conducting burrowing owl clearance surveys in prairie dog towns that are subject to poisoning or construction projects during the period from March 15 through October 31 (Colorado Parks and Wildlife 2021a). Construction occurring from November 1 through March 14 would not require clearance surveys.

Recommendations ERO observed areas of active black-tailed prairie dog burrows along portions of the project area during the 2022 site visit (Figure 2). Although prairie dogs are not protected under the ESA, CPW recommends attempting to remove, translocate, or exterminate prairie dogs prior to bulldozing an active prairie dog town for humane reasons. Currently, the city of Lone Tree and RRMD5 do not have any regulations or policies pertaining to prairie dogs. However, Douglas County Parks and Open Space (Open Space) has policies for Prairie Dog Conservation that outline a series of steps to be attempted in situations where the continued existence of a prairie dog colony conflicts with the intended land use (Douglas County 2022). While the Open Space policies do not apply to private property, they can be used as a framework to guide management decisions.

ERO Project #22-180 9

Western Burrowing Owl Species Background The western burrowing owl (burrowing owl) is a small migrant owl listed by the state of Colorado as a threatened species and is federally protected under the Migratory Bird Treaty Act (MBTA). Primary threats to the burrowing owl include habitat loss and fragmentation, anthropogenic sources of mortality such as vehicular collisions, and loss of wintering grounds, largely in Mexico (McDonald, Korfanta, and Lantz 2004).

In general, burrowing owls are found in grasslands with vegetation less than 4 inches high and a relatively large proportion of bare ground (Gillihan and Hutchings 2000). In Colorado, burrowing owls are usually associated with black-tailed prairie dog colonies (Colorado Bird Atlas Partnership 2016) ( Andrews and Righter 1992). More than 70 percent of sightings reported in Colorado Breeding Bird Atlases were in prairie dog colonies (Colorado Bird Atlas Partnership 2016).

Burrowing owls usually arrive on their breeding grounds around mid-March to early April and remain until September (Haug and Oliphant 1990). Burrowing owls are typically present in Colorado from March 15 through October 31, with breeding from mid-April through early/mid-August (Andrews and Righter 1992; Colorado Bird Atlas Partnership 2016). CPW suggests conducting burrowing owl clearance surveys in prairie dog towns that are subject to poisoning or construction projects during the period from March 15 through October 31 (CPW 2020).

Potential Habitat and Effects The prairie dog burrows in the project area are potential habitat for burrowing owls (Photo 4; Figure 2).

Inadvertent killing of burrowing owls could occur during prairie dog poisoning, construction, or earthmoving projects during the breeding period, as well as up to a month before egg laying and several months after young have fledged. CPW has a recommended buffer of ⅛ mile (660 feet) surrounding active burrowing owl nests during the nesting season (March 15 through August 31) (Colorado Parks and Wildlife 2021c). Burrowing owls could be impacted by the project if work would occur within CPW’s recommended buffer of any burrows.

Recommendations A burrowing owl survey should be conducted if work would occur within the recommended buffer of any burrow from March 15 through October 31. Additionally, CPW recommends conducting burrowing owl clearance surveys in prairie dog towns that are subject to poisoning and/or construction projects during this period (March 15 through October 31) (CPW 2020). If owls are present within 660 feet of the project area, activities should be restricted until the owls have migrated from the site, which can be determined through monitoring. Construction occurring from November 1 through March 14 would not require clearance surveys.

ERO Project #22-180 10

Raptors and Migratory Birds Migratory birds, as well as their eggs and nests, are protected under the MBTA. The MBTA does not contain any prohibition that applies to the destruction of a bird nest alone (without birds or eggs), provided that no possession occurs during the destruction. While destruction of a nest by itself is not prohibited under the MBTA, nest destruction that results in the unpermitted take of migratory birds or their eggs is illegal and fully prosecutable under the MBTA(U.S. Fish and Wildlife Service 2003). The regulatory definition of a take is to pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect (50 Code of Federal Regulations 10.12).

Under the MBTA, the Service may issue nest depredation permits, which allow a permittee to remove an active nest. The Service, however, issues few permits and only under specific circumstances, usually related to human health and safety. Obtaining a nest depredation permit is unlikely and involves a process that takes, at a minimum, 8 to 12 weeks. The best way to avoid a violation of the MBTA is to remove vegetation outside of the active breeding season, which typically falls between March and August, depending on the species. MBTA enforcement actions are typically the result of a concerned member of the community reporting a violation.

CPW maintains a leadership role with respect to raptor management in Colorado; however, the primary authority for the regulation of take and the ultimate jurisdiction for most of these species rests with the Service under the MBTA and the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668c).

Potential Habitat and Effects A wide variety of bird species use different habitat types in the project area for shelter, breeding, wintering, and foraging at various times during the year. The disturbed uplands, wetlands, and upland grasslands in and adjacent to the project area are potential nesting habitat for migratory birds. During the 2022 site visit, ERO observed red-tailed hawk (Buteo jamaicensis), turkey vulture (Cathartes aura), northern flicker (Colaptes auratus), rock dove (Columba livia), common raven (Corvus corax), American kestrel (Falco sparverius), barn swallow (Hirundo rustica), brown-headed cowbird (Molothrus ater), unknown sparrows (Passer spp.), black-billed magpie (Pica hudsonia), Say’s phoebe (Sayornis saya), western meadowlark (Sturnella neglecta), and mourning dove (Zenaida macroura) in or soaring over the project area.

ERO surveyed the project area for nests during the 2022 site visit. ERO observed three unoccupied raptor nests in large cottonwood trees along Happy Canyon Creek and Badger Gulch within ⅓ mile of the project area (Figure 2 and Figure 3). The size and shape of the nests and their position in the trees suggests they are raptor nests. Raptors such as red-tailed and Swainson’s hawks could potentially use the observed nest. Depending on the species, CPW recommends a ⅓- or ¼-mile buffer from active raptor nests from February through July for human encroachment activities or installation of a permanent or long-standing physical object or structure (Colorado Parks and Wildlife 2020). The breeding season for most birds in Colorado is March through mid-September, with the exception of a few species that begin breeding in February, such as great-horned owls. Because the 2022 site visit was

ERO Project #22-180 11 conducted in late July when many birds are no longer nesting, it is unknown if the nests were active during the breeding season or which species use the nests.

Recommendations To avoid destruction of potential migratory bird nests, vegetation removal should be conducted outside of the April 1 through September 15 breeding season. CPW has identified the primary nesting season for migratory birds in Colorado as occurring from April 1 through September 15 (U.S. Fish and Wildlife Service 2009). However, a few species such as bald eagles, great horned owls, and red-tailed hawks can nest as early as December (eagles) or late February (owls and red-tailed hawks). Because of variability in the breeding seasons, ERO recommends that a nest survey be conducted within one week prior to construction to determine if the observed raptor nests or any other active nests are present in the project area so that they can be avoided. Additional nest surveys during the nesting season may also be warranted to identify active nesting species that may present additional development timing restrictions (e.g., eagles or red-tailed hawks).

If active nests are identified in or near the project area, activities that would directly affect the nests should be restricted. Habitat-disturbing activities (e.g., tree removal, grading, scraping, and grubbing) should be conducted during the nonbreeding season to avoid disturbing active nests, or to avoid a “take” of the migratory bird nests in the project area. Nests can be removed during the September 1 through March 31 nonbreeding season to preclude future nesting and avoid violations of the MBTA.

There is no process for removing nests during the nonbreeding season; however, nests may not be collected under MBTA regulations. If the construction schedule does not allow vegetation removal outside of the breeding season, a nest survey should be conducted immediately prior to vegetation removal to determine if the nests are active and by which species. If active nests are found, any work that would destroy the nests or cause the birds to abandon young in the nest should not be conducted until the birds have vacated the nests.

The CPW has recommended buffer zones of ⅓ mile for active red-tailed hawk nests and ¼ mile for active Swainson’s hawk nests. Activities that would directly impact an active nest, or that would encroach close enough to cause adult birds to abandon the nest during the breeding season, should be restricted.

Construction activities that could potentially be within a red-tailed hawk or other raptor buffer zone should commence outside of the February 15 to September 15 breeding season. Consultation with CPW or the Service may be required if construction is proposed within a buffer zone of an active raptor nest.

Although there is no CPW buffer designated for great horned owls, any active nest should be left undisturbed until the birds have left the nest. CPW recommends consultation with local CPW staff early in the planning phase of project proposals to assess and develop site-specific recommendations based on preexisting conditions (e.g., existing development, topography, vegetation, and line-of-sight to nest).

[b

[b

[b

[b

[b

Me rid ian Vil lag e Park way

East Lincoln Avenue

Ha pp y Can yon Creek

Badg er Gulch

Ridgegate Parkway

Fir st

St re et

Prepared for: Rampart Range Metropolitan District No. 5 File: 22_180 Figure 3.mxd (GS) September 7, 2022 ±

Figure 3 Nest Survey

Badger Gulch Sanitary Sewer

0 1,200600 Feet

Pa th

: P

_1

\2

2_

Ba dg er

G ul ch S an ita ry S ew er

L in e N

RA

\M ap s\

_1

F ig ur e 3.

m xd

Image Source: Google Earth©, June 10, 2021

[b Active Bald Eagle Nest

[b Raptor Nest

Bald Eagle Nest 1/2-Mile Buffer

Raptor Nest 1/3-Mile Buffer

Project Area 1/2-Mile Buffer

Project Area Boundary

ERO Project #22-180 13

High Priority Habitat and Big Game In 2021, CPW released a High Priority Habitat (HPH) table that identifies species and habitats, as well as recommendations to avoid and minimize impacts on wildlife from land use development (CPW 2021).

ERO reviewed data from CPW map databases and determined that one HPH area (Aquatic Native Species Conservation Water) overlaps the project area(Colorado Parks and Wildlife 2021b).

Additionally, the project area is within mapped mule deer overall range, pronghorn overall range, and pronghorn limited use area (Natural Diversity Information Source 2021). ERO assessed the project area for habitat for species and habitats listed in the HPH table during the 2022 site visit, and because mule deer and pronghorn likely frequent the project area, these species are also discussed in more detail below.

Aquatic Native Species Conservation Waters Background Aquatic native species are found throughout Colorado, wherever water resources are present. They are typically sensitive to changes in water quality factors such as temperature, dissolved oxygen, and turbidity. The health of a water resource can often be evaluated based on the presence or absence of certain aquatic species. A major threat to the aquatic native resources in Colorado is urban development, which leads to consumptive water use and dams, as well as aquatic nuisance species, which often outcompete native species for resources.

Potential Habitat and Effects In the project area, Badger Gulch coincides with the Aquatic Native Species Conservation Water HPH.

The presence of wetlands and OHWM in Badger Gulch provides marginal habitat for aquatic native species. Based on ERO’s knowledge of the project, impacts on Badger Gulch would be avoided.

Recommendations For any work conducted in areas mapped in Aquatic Native Species Conservation Water HPH, ERO recommends contacting the local CPW district manager requesting concurrence that the proposed project would not likely affect native aquatic species. Because Badger Gulch is an ephemeral stream and does not contain continuous flows, it is unlikely any aquatic species are present in the project area and no further action is necessary.

Mule Deer Species Background Mule deer are found in all ecosystems in Colorado from grasslands to alpine tundra. Spring and summer ranges are typically mosaics of meadows, aspen woodlands, alpine tundra-subalpine forest edges, or montane forest edges (Fitzgerald 1994). Seasonally, mule deer are relatively sedentary, although most will spend the summer at higher elevations and migrate to lower elevations in the winter. Mule deer diets vary seasonally but generally consist of browse from trees and shrubs, forbs, and grasses.

ERO Project #22-180 14

Potential Habitat and Effects Although the project area is located within mule deer overall range, no mule deer HPH areas, including migration corridors, severe winter range, or winter concentration areas, are located in the project area (CPW 2021). The closest mule deer HPH (mule deer winter concentration area) is located approximately 4 miles northeast of the project area near Parker, Colorado. Although no mule deer were observed in the project area during the 2022 site visit, it is likely that mule deer forage and migrate through the project area.

Recommendations Because no HPH for mule deer occurs in the project area, no action is necessary.

Pronghorn Species Background The American pronghorn inhabits grasslands and semidesert shrublands on rolling topography that provides good visibility (Fitzgerald, Meaney, and Armstrong 1994). Pronghorn tend to favor vast expanses of open areas and are typically sensitive to human presence, including residential and commercial development and habitat loss(Sawyer and Lindzey 2000). Pronghorn primarily occupy grasslands, sagebrush plains, deserts, and foothills; and in Colorado, pronghorn occur on the eastern plains, in large mountain parks and valleys, and in shrublands on the West Slope (Fitzgerald, Meaney, and Armstrong 1994; NatureServe 2022).

Pronghorn are considered browsers, typically feeding on sagebrush throughout the year, in addition to leafy forage in summer (Colorado Parks and Wildlife 2017). They eat several plants that are unpalatable or toxic to livestock, which allows them to coincide in areas alongside cattle. Pronghorns generally live in social groups throughout the year (Byers 1997). Pronghorns typically mate in the fall from mid- September to mid-October, but in the south may start breeding as early as late July (Colorado Parks and Wildlife 2017; NatureServe 2022). In Colorado, pronghorns typically give birth in the first half of June (NatureServe 2022).

Potential Habitat and Effects Although the project area is located within pronghorn overall range and pronghorn limited use area, no pronghorn HPH areas, including migration corridors or winter concentration areas, are located in the project area (Colorado Parks and Wildlife 2021b). The closest pronghorn HPH (pronghorn winter concentration area) is located approximately 29 miles northeast of the project area near Byers, Colorado. During the 2022 site visit, one pronghorn was observed south of the project area crossing Ridgegate Parkway along Badger Gulch, and pronghorns could be temporarily displaced from the project area during construction.

Recommendations Because no HPH for pronghorn occurs in the project area, no action is necessary.

ERO Project #22-180 15

Other Wildlife The project area vicinity provides habitat for a variety of small mammals such as cottontail rabbits (Sylvilagus sp.), deer mice (Peromyscus maniculatus), voles (Microtus sp.), and pocket gophers (Geomyidae). The adjacent grassland habitat likely provides breeding habitat for numerous ground-nesting prairie bird species, and riparian ecosystems typically support many more species of native birds than surrounding grassland or shrubland communities(Knopf and Samson 1994).

Carnivores such as coyote (Canis latrans), raccoon (Procyon lotor), red fox (Vulpes vulpes), grey fox (Urocyon cinereoargenteus), and striped skunk (Mephitis mephitis) are also likely to occur in the project area. These species are typically observed in open grasslands and close to riparian corridors. None of these species or signs of these species were observed during the 2022 site visit and no designated wildlife corridors were mapped in the project area (Natural Diversity Information Source 2021).

As with any human development, wildlife species sensitive to human disturbance are likely to decline in abundance or abandon the area, while other wildlife species adapted to development are likely to increase in abundance. Overall, surrounding and continuing development contributes to a decline in the number and diversity of wildlife species nearby and to a change in species composition to favor species that adapt better to human disturbance.

References

Andrews, Robert, and Robert W. Righter. 1992. Colorado Birds: A Reference to Their Distribution and Habitat. Denver, Colorado: Denver Museum of Nature & Science Press.

Byers, John. 1997. American Pronghorn: Social Adaptations and Ghosts of Predators Past. Chicago University Press.

Carlson, L. 2000. “Colorado Field Supervisor, Colorado Field Office, United States Fish and Wildlife Service.” Letter to Steve Dougherty, ERO Resources Corporation.

Colorado Bird Atlas Partnership. 2016. The Second Colorado Breeding Bird Atlas. Denver, CO.

https://cobreedingbirdatlasii.org/.

Colorado Natural Heritage Program. 2022. “Colorado’s Conservation Data Explorer (CODEX).”

https://codex.cnhp.colostate.edu/.

Colorado Parks and Wildlife. 2017. “Pronghorn Species Profile.”

https://cpw.state.co.us/learn/Lists/Wildlife%20Species/DispForm.aspx?ID=27.

Colorado Parks and Wildlife. 2020. “Recommended Buffer Zones and Seasonal Restrictions for Colorado Raptors.” https://cpw.state.co.us/Documents/WildlifeSpecies/LivingWithWildlife/Raptor-Buffer- Guidelines.pdf.

Colorado Parks and Wildlife. 2021a. “Black-Tailed Prairie Dog.” 2021.

https://cpw.state.co.us/learn/Pages/SOC-Black-tailedPrairieDog.aspx.

Colorado Parks and Wildlife. 2021b. “CPW Recommendations to Avoid and Minimize Impacts to Wildlife from Land Use Development in Colorado.”

ERO Project #22-180 16

Colorado Parks and Wildlife. 2021c. “Recommended Survey Protocol and Actions to Protect Nesting Burrowing Owls.”

Colorado Parks and Wildlife. 2022a. “Colorado Listing of Endangered, Threatened and Wildlife Species of Special Concern.” 2022. https://cpw.state.co.us/learn/Pages/SOC- ThreatenedEndangeredList.aspx.

Colorado Parks and Wildlife. 2022b. “Raptor Database.” Raptor Nest Database provided to ERO Resources Corporation under Non-disclosure Agreement to keep nest location information confidential and sensitive.

Douglas County. 2022. “Douglas County Open Space and Parks Divisions Prairie Dog Conservation Policy.” https://www.douglas.co.us/documents/prairie-dog-conservation-policy.pdf/#:~:text=Any%20prairie%20dog%20relocation%20requires,and%20existing%20prairie %20dog%20populations.

ERO Resources Corporation (ERO). 2021. Request for Approved Jurisdictional Determination for the Ridgegate East Development – Arapahoe Canal, Badger Gulch, and Unnamed Drainages 1 through 4 in Douglas County, Colorado. September.

Fitzgerald, J.P. 1994. Mammals of Colorado. University Press of Colorado.

Fitzgerald, J.P., C.A. Meaney, and D.M. Armstrong. 1994. Mammals of Colorado. Denver Museum of Natural History and University Press of Colorado.

Gillihan, Scott W., and Scott W. Hutchings. 2000. “Best Management Practices for Shortgrass Prairie Birds: A Landowner’s Guide.” Brighton, Colorado: Colorado Bird Observatory.

http://www.rmbo.org/pubs/downloads/bmp.pdf.

Haug, Elizabeth A., and Lynn W. Oliphant. 1990. “Movements, Activity Patterns, and Habitat Use of Burrowing Owls in Saskatchewan.” The Journal of Wildlife Management 54 (1): 27–35.

https://doi.org/10.2307/3808896.

Knopf, Fritz L., and Fred B. Samson. 1994. “Biological Diversity-Science and Action.” Conservation Biology 8 (3): 909–11.

Kuford, Carl B. 1958. “Prairie Dogs, Whitefaces, and Blue Grama.” Wildlife Monographs, no. 3: 3–78.

McDonald, David, Nicole M. Korfanta, and Sarah J. Lantz. 2004. “The Burrowing Owl (Athene Cunicularia): A Technical Conservation Assessment.” Prepared for the USDA Forest Service, Rocky Mountain Region, Species Conservation Project.

http://a123.g.akamai.net/7/123/11558/abc123/forestservic.download.akamai.com/11558/ww w/nepa/91137_FSPLT3_2553024.pdf.

Natural Diversity Information Source. 2021. “Natural Diversity Information Source.” Colorado Parks and Wildlife: Colorado Hunting Atlas. 2021.

https://ndismaps.nrel.colostate.edu/index.html?app=HuntingAtlas.

NatureServe. 2022. “Pronghorn (Antilocapra Americana) Species Profile.”

https://explorer.natureserve.org/Taxon/ELEMENT_GLOBAL.2.100336/Antilocapra_americana.

Power, Mary E., David Tilman, James A. Estes, Bruce A. Menge, William J. Bond, L. Scott Mills, Gretchen Daily, Juan Carlos Castilla, Jane Lubchenco, and Robert T. Paine. 1996. “Challenges in the Quest for Keystones: Identifying Keystone Species Is Difficult—but Essential to Understanding How

ERO Project #22-180 17

Loss of Species Will Affect Ecosystems.” BioScience 46 (8): 609–20.

https://doi.org/10.2307/1312990.

Sawyer, H., and F. Lindzey. 2000. “Jackson Hole Pronghorn Study.” Wyoming Cooperative Fish and Wildlife Research Unit, Larimer, WY.

Smith, Ronald E. 1967. Natural History of the Prairie Dog in Kansas. Lawrence, Kansas: Museum of Natural History, University of Kansas.

U.S. Environmental Protection Agency. 2020. “Navigable Waters Protection Rule Overview.” U.S.

Environmental Protection Agency (EPA). August 27, 2020.

https://www.epa.gov/nwpr/navigable-waters-protection-rule-overview.

U.S. Fish and Wildlife Service. 1992. “Interim Survey Requirements for Spiranthes Diluvialis.”

U.S. Fish and Wildlife Service. 2003. “Migratory Bird Permit Memorandum.”

https://www.fws.gov/migratorybirds/pdf/policies-and-regulations/MBPM-2nest.PDF.

U.S. Fish and Wildlife Service. 2009. “Personal Communication between Pete Plage (U.S. Fish and Wildlife Service) and ERO Resources Corporation.”

U.S. Fish and Wildlife Service. 2016. “Preble’s Meadow Jumping Mouse (Zapus Hudsonius Preblei) Block Clearance Zone for the Denver Metropolitan Area,” September 1, 2016.

U.S. Fish and Wildlife Service. 2019. “Monarch Butterfly Migration.”

https://www.fws.gov/savethemonarch/pdfs/migration-map.pdf.

U.S. Fish and Wildlife Service. 2021. “Monarch Butterfly (Danaus Plexippus) Species Profile.” 2021.

https://ecos.fws.gov/ecp/species/9743.

U.S. Fish and Wildlife Service. 2022. “Information for Planning and Consultation (IPaC) Resource List.”

2022. https://ecos.fws.gov/ipac/.

U.S. Geological Survey. 2016. “National Land Cover Database.” 2016.

https://www.usgs.gov/node/279743.

Whicker, April, and James Detling. 1988. “Ecological Consequences of Prairie Dog Disturbances.”

BioScience 38 (December).

Witmer, Gary, Kurt VerCauteren, Karen Manci, and Donna Dees. 2000. “Urban-Suburban Prairie Dog Management: Opportunities and Challenges.” https://doi.org/10.5070/V419110183.

ERO Project #22-180

Appendix A Photo Log

Photo Log Badger Gulch Sanitary Sewer Line NRA

July 25, 2022

Photo 1 - Upland vegetation in the project area. View is to the northwest.

Photo 2 - Badger Gulch riparian corridor east of the project area. View is to the northeast.

July 25, 2022

Photo 3 - Stormwater management structures along First Street in the northern portion of the project area.

View is to the west.

Photo 4 - Active prairie dog colony in the project area. View is to the south.

July 25, 2022

Photo 5 - Unoccupied raptor nest along the central portion of the project area. View is to the east.

Photo 6 - Unoccupied raptor nest north of the project area. View is to the southwest.

DP4

DP3

CT 20%

DK 30%

MT 30%

CG 20-30%, DK 5%

Ridgegate Parkway

CG 20-30%, DK 5%

Wetland 4 (0.024 ac)

Wetland 5 (0.028 ac)

Prepared for: Merrick & Company File: 6944 BRR Figures 2a - 2e.mxd (GS) June 13, 2018 ±

Figure 2c Biological Resources

Ridgegate Parkway Expansion

0 220110 Feet

Pat h:

P:\

Pr oje cts

\69

Rid geg ate Pa rkw ay

Exp an sio n\M ap s\N

R\B

RR

\69

BR

R F igu res

2a

- 2 e.m xd

Image Source: Google Earth©, October 2015

!. Data Point [b Raptor Nest ! Weed Point

Weed Poly Prairie Dog Colony

Ordinary High Water Mark Wetland Riparian Area Grassland Project Area Boundary

Weed Descriptions BT - Bull Thistle (Cirsium vulgare) CG - Cheatgrass (Bromus tectorum) CM - Common Mullein (Verbascum thapsus) CT - Canada Thistle (Cirsium avense) DK - Diffuse Knapweed (Centaurea diffusa) MT - Musk Thistle (Carduus nutans) PH - Poison Hemlock (Conium maculatum) ST - Scotch Thistle (Onopordum acanthium)

Ba dg er Gu lch

CM 5%

ST 6

ST 1

CM 5%

ST 2%

CT 25%

DK 35%

CT 30%, MT 5%,

CM 10%

MT 10%,

CM 10%

CG 20-30%, DK 5%

CG 20-30%,…