United States Department of the Interior FISH AND WILDLIFE SERVICE u.s. nSH & WILDLIFE SERVICE ~ Ecological Services 5353 Yellowstone Road, Suite 308A Cheyenne, Wyoming 82009 In Reply Refer To: ES-61411/WYIISL0372 SEP 3 2011 Kevin Hsueh, Chief U.S. Nuclear Regulatory Commission Mail Stop T-8F05' Washington, DC 20555 Dear Mr. Hsueh: Thank you for your letter (Docket 0.040-09091) of August 12,2011 received in our office on August 19, regarding the Strata Energy, Inc., in situ Uranium Recovery (ISR) facility at the proposed Ross project site. The proposed project area consists of approximately 1,720 acres of primarily privately-owned land and is located in Oshoto, Wyoming, in Crook County. The project area lies within portions ofT53N, R67W, Sections 7 and 17-19, and T53N, R68W, Sections 12,13 and 24. We previously received a letter dated April 7, 2011, from Miles Bennett, Natural Resources Analyst, Wyoming Department of Environmental Quality, requesting technical review of the application for the Strata Energy Ross Project ISL Permit Application. We responded to this req uest on May 3, 2011, and have enclosed a copy of our response (WY 11TA021 0). Additionally, we have enclosed a copy of "Responses to USF&WS and WG&F comments to Ross ISR Project Permit (I'FN 55/217)" dated June 30, 2011, from WWC Engineering. You have requested information regarding species listed under the Endangered Species Act of 1973, as amended (Act), 16 U.S.c. 1531 et seq. In response to your request, the U.S. Fish and Wildlife Service (Service) is providing you with recommendations for protective measures for threatened and endangered species in accordance with the Act. We are also providing recommendations concerning migratory birds in accordance with the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703, and the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. 668. Wetlands are afforded protection under Executive Orders 11990 (wetland protection) and 11988 (floodplain management), as well as section 404 of the Clean Water Act. Other fish and wildlife resources are considered under the Fish and Wildlife Coordination Act, as amended, 16 U.S.c. 661 et seq., and the Fish and Wildlife Act of 1956, as amended, 16 U.S.C. 742a-742j. 1
In your letter, you requested that we also address the potential for Migratory Birds of High Federal Interest (MBHFI) to nest within or adjacent to the proposed permit area. The Service does not maintain site-specific information on the nesting locations of the birds on the MBHFI list (copy enclosed). Site-specific nest location information may be available from the Wyoming Game and Fish Department (WGFD), applicable land management agencies, or through speciesspecific surveys conducted on site. If site-specific information indicates that MBHFI do occur at or in the vicinity (e.g., 1 mile) of the proposed project area, we can provide additional site and species-specific recommendations. In accordance with Section Tc) of the Act, we have determined that the following species or their designated habitat may be present in the proposed project area. We would appreciate receiving information as to the current status of each of these species within the proposed project area. Listed, Proposed, Candidate Species and their Designated and Proposed Critical Habitat that may be in the proposed Project Area Species Scientific Name Status Habitat Ute Ladies'-tresses Spiranthes diluvialis Threatened Seasonally moist soils and wet meadows of drainages below 7,000 ft. elevation Greater Sage-grouse Centrocercus Candidate Sagebrush communities urophasianus Ute Ladies'-tresses: Ute ladies'-tresses (Spiraruhes diluvialisy is a perennial, terrestrial orchid, 8 to 20 inches tall, with white or ivory flowers clustered into a spike arrangement at the top of the stem. Ute ladies' -tresses typically blooms from late July through August; however, depending on location and climatic conditions, it may bloom in early July or still be in flower as late as early October. Ute ladies' -tresses is endemic to moist soils near wetland meadows, springs, lakes, and perennial streams where it colonizes early successional point bars or sandy edges. The elevation range of known occurrences is 4,200 to 7,000 feet (although no known populations in Wyoming occur above 5,500 feet) in alluvial substrates along riparian edges, gravel bars, old oxbows, and moist to wet meadows. Soils where Ute ladies' -tresses have been found typically range from fine silt/sand, to gravels and cobbles, as well as to highly organic and peaty soil types. Ute ladies' -tresses is not found in heavy or tight clay soils or in extremely saline or alkaline soils. Ute ladies' -tresses seem intolerant of shade and small scattered groups are found primarily in areas where vegetation is relati ely open. Surveys should be conducted by knowledgeable botanists trained m conducting rare plant surveys. Ute ladies' -tresses is difficult to survey for primarily due to its unpredictability of emergence of flowering parts and subsequent rapid desiccation of specimens. The ervice does not maintain a list of "qualified" surveyors but can refer those wishing to become familiar with the orchid to experts who can provide training or services. Greater Sage-grouse: The Service has determined that the greater sage-grouse (Centrocercus urophasianusi warrants listing under he Act, bu the deve opment of a proposed listing rule is 2
precluded by other higher priority listing actions. As a result, the greater sage-grouse has been placed on the list of candidate species. Candidates are reviewed annually to determine if they continue to warrant listing or to reassess their listing priority. Ideally sufficient threats can be removed to eliminate the need for listing, in which case sage-grouse would no longer be a candidate. If threats are not addressed or the status of the species declines, a candidate species can move up in priority for a listing proposal. Please see our recent Federal Register notice (75 FR 13910; available at http://www.fws.gov/wyominges/Page /Species/Findings/GrtSageGrouse CandidateBulletin.httnl) on greater sage-grouse for detailed information concerning the status of the species. Greater sagegrouse are dependent on sagebrush habitats year-round. Habitat loss and degradation, as well as loss of population connectivity have been identified as important factors contributing to the decline of greater sage-grouse populations rangewide. Therefore, any activities that result in loss or degradation of sagebrush habitats that are important to this species should be closely evaluated for their impacts to sage-grouse. We recommend you contact the WGFD to identify important greater sage-grouse habitats, recommended seasonal restrictions within the project area, and appropriate measures to minimize potential impacts from the proposed project. The Service recommends surveys and mapping of important greater sage-grouse habitats where local information is not available. The results of these surveys should be used in project planning to minimize potential impacts to this species. o project activities that may exacerbate habitat loss or degradation should be permitted in important habitats. Species of Concern Black-tailed Prairie Dog: The range of the black-tailed prairie dog (Cynomys ludovicianus) once spanned the short and mixed grass prairies of North America east of the Rockies from southern Canada to northern Mexico. This species still occurs over much of its historic range, although in more widely scattered large colonie. Black-tailed prairie dogs occur within the eastern third of Wyoming. A population thought to have been intentionally introduced outside of this range also occurs in the Bighorn Basin. We encourage the conservation of prairie dog colonies for their value to the prairie ecosystem and the many species that rely on them. Threats that may be significant to conserving black-tailed prairie dog populations include disease (sylvatic plague) and some control programs (poisoning). Prairie dogs serve as the primary prey species for the black-footed ferret (Mustela nigripes) and several raptors, including the golden eagle (Aguila chrysaetos) and ferruginous hawk (Buteo regalis). Prairie dog colonies and burrows also provide shelter or nest sites for species like the mountain plover (Charadrius montanus) and burrowing owl (Athene cunicularia). Because black-tailed prairie dog colonies in Wyoming do not currently support any ferret populations, black-footed ferret surveys are not necessary within Wyoming. However, we do. encourage evaluating black-tailed prairie dog colonies for the potential reintroduction of black-footed ferrets. Migratory Birds: The MBTA, enacted in 1918, prohibits the taking of any migratory birds, their parts, nests, or eggs except as permitted by regulations, and does not require intent to be proven. Section 703 of the MBT A states, "Unless and except as permitted by regulations ... it shall be unlawful at any time, by any means or in any manner, to ... take, capture, kill, attempt to 3
take, capture, or kill, or possess ... any migratory bird, any part, nest, or eggs of any such bird ..." The BGEPA, prohibits knowingly taking, or taking with wanton di regard for the consequences of an activity, any bald or golden eagles or their body parts, nests, or eggs, which includes collection, molestation, disturbance, or killing. Work that could lead to the take of a migratory bird or eagle their young, eggs, or nests (for example, if you are going to erect new roads, or power lines in the vicinity of a nest), should be coordinated with our office before any actions are taken. Removal or destruction of such nests, or causing abandonment of a nest could constitute violation of one or both of the above statutes. Removal of any active migratory bird nest or nest tree is prohibited. For golden eagles, inactive nest permits are limited to activities involving resource extraction or human health and safety. Mitigation, as determined by the local Service field office, may be required for loss of these nests. No permits will be issued for an active nest of any migratory bird species, unless removal of an active nest is necessary for reasons of human health and safety. Therefore, if nesting migratory birds are present on, or near the project area, timing is a significant consideration and needs to be addressed in project planning. If nest manipulation is proposed for this project, the project proponent should contact the Service's Migratory Bird Office in Denver at 303-236-8171 to see if a permit can be issued for this project. No nest manipulation is allowed without a permit. If a permit cannot be issued, the project may need to be modified to ensure take of a migratory bird or eagle, their young, eggs or nest will not occur. The Service's Wyoming Field Office has compiled a list of Migratory Bird Species of High Federal Interest (Enclosure) from the ongoing work among State and Federal agencies, nongovernmental organizations, and the interested public that produced the Wyoming Bird Conservation Plan. This list will now serve as our list of Migratory Bird Species of Management Concern in Wyoming, in place of the previous list based on the Migratory Nongame Birds of Management Concern in the United States: the 1995 List. Bald Eagle/Raptor: Enclosed please find our general recommendations for the protection of bald eagles and other raptor species. We strongly encourage project proponents to fully implement the protective measures described in the enclosures in order to help ensure compliance with the MBTA and the BGEPA. We are also available to assist you in developing a project specific plan to address the MBT A and BOEP A concerns. WetlandslRiparian Areas: Wetlands or riparian areas may be impacted by the proposed project. Wetlands perform significant ecological functions which include: (1) providing habitat for numerous aquatic and terrestrial wildlife species, (2) aiding in the dispersal of floods, (3) improving water quality through retention and assimilation of pollutants from storm water runoff, and (4) recharging the aquifer. Wetlands also possess aesthetic and recreational values. If wetlands may be destroyed or degraded by the proposed action, those wetlands in the project area should be inventoried and fully described in terms of their functions and values. Acreage of wetlands, by type, should be disclosed and specific actions should be outlined to avoid, minimize, and compensate for all unavoidable wetland impacts. 4
Riparian or streamside areas are a valuable natural resource and impacts to these areas should be avoided whenever possible. Riparian areas are the single most productive wildlife habitat type in North America. They support a greater variety of wildlife than any other habitat. Riparian vegetation plays an important role in protecting streams, reducing erosion and sedimentation as well as improving water quality, maintaining the water table, controlling flooding, and providing shade and cover. In view of their importance and relative scarcity, impacts to riparian areas should be avoided. Any potential, unavoidable encroachment into these areas should be further avoided and minimized. Unavoidable impacts to streams should be assessed in terms of their functions and values, linear feet and vegetation type lost, potential effects on wildlife, and potential effects on bank stability and water quality. Measures to compensate for unavoidable losses of riparian areas should be developed and implemented as part of the project. Plans for mitigating unavoidable impacts to wetland and riparian areas should include mitigation goals and objectives, methodologies, time frames for implementation, success criteria, and monitoring to determine ifthe mitigation is successful. The mitigation plan should also include a contingency plan to be implemented should the mitigation not be successful. In addition, wetland restoration, creation, enhancement, and/or preservation does not compensate for loss of stream habitat; streams and wetlands have different functions and provide different habitat values for fish and wildlife resources. Best Management Practices (BMPs) should be implemented within the project area wherever possible. BMPs include, but are not limited to, the following: installation of sediment and erosion control devices (e.g., silt fences, hay bales, temporary sediment control basins, erosion control matting); adequate and continued maintenance of sediment and erosion control devices to insure their effectiveness; minimization of the construction disturbance area to further avoid streams, wetlands, and riparian areas; location of equipment staging, fueling, and maintenance areas outside of wetlands, streams, riparian areas, and floodplains; and re-seeding and re-planting of riparian vegetation native to Wyoming in order to stabilize shorelines and stream banks. For our internal tracking purposes, the Service would appreciate notification of any decision made on this project (such as issuance of a permit or signing of a Record of Decision or Decision Memo). Notification can be sent in writing to the letterhead address or by electronic mail to FW6_Federal_Activities [email protected]. We appreciate your efforts to ensure the conservation of Wyoming's fish and wildlife resources. If you have questions regarding this letter or your responsibilities under the Act and/or other authorities or resources described above, please contact Genevieve Skora of my office at the letterhead address or phone (307) 772-2374, extension 225 . . Mark Sattel berg Field Supervisor Wyoming Field Office Enclosures (4) 5
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