Protected species and wetland questions, SH 382 at Kettle Fork, Colorado

13 questions from design review answered only from the ESA, the Clean Water Act and Colorado’s wildlife and dredge-and-fill rules, with verbatim excerpts and the version in effect by date. Federal and state changes in 2025–2026 change the answer to several of them.

ESA and 50 CFR Part 17CWA Sections 404 and 401C.R.S. Titles 25 and 33, CPW Chapter W-10, Regulations 82 and 87Federal Register through Nov 5, 2026Prepared Nov 5, 2026

Summary

Removed from 50 CFR 17.11(h)

Lesser prairie-chicken is off the federal list but still state threatened

The 2023 lek near SH 382 no longer triggers ESA obligations: FWS removed both DPSs by a rule effective Feb 26, 2026 (FR Doc. 2026-03883, p. 1) after court orders in 2025. Colorado still lists the species as threatened, and take is unlawful under C.R.S. 33-2-105(4).

New state program

The isolated wetland falls under Colorado’s dredge-and-fill rules

If the Corps finds the detention pond wetland isn’t a water of the United States, no Section 404 permit is needed. Colorado Regulation 87 has covered such state waters since Mar 30, 2026, and CDPHE has issued General and Individual Authorizations since Sep 1, 2026.

Outside the sources

3 of 13 questions can’t be answered from the source set

Traffic noise, the bridge floodplain permit and the pending gray wolf delisting efforts fall outside the bounded sources. Q‑07 on swallow nests is answered in part, because the Migratory Bird Treaty Act isn’t in the set.

Questions and answers with source excerpts

Pick a question to see the answer, the excerpts and where they come from. Where the rules changed in 2025–2026 you can switch between versions. The timeline shows which actions affect which questions.

    Changes in the sources, 2025–2026

    Proposed rules are shown with a dashed marker and are not applied. Click an action to see the questions it affects.

      Sources and method

      Sources

      • Bounded sources
      • Endangered Species Act, 16 U.S.C. 1531–1544Current U.S. Code, including §3(19) and §9Statute
      • 50 CFR Part 17Lists at 17.11(h), experimental populations at 17.83 and the Colorado gray wolf rule at 17.84(n)Current CFR
      • Clean Water Act Sections 404 and 40133 U.S.C. 1344 and 1341, with the amended 2023 WOTUS rule as applied in ColoradoStatute
      • C.R.S. 33-1-102, 33-2-105 and 25-8-205.1Colorado take definition, state listing and take prohibitions, state dredge-and-fill authorizationStatute
      • CPW Chapter W-10, 2 CCR 406-10, and CPW list of threatened and endangered wildlifeAs approved Mar 4, 2026, effective May 1, 202619 pp.
      • Regulations 82 and 87, 5 CCR 1002-82 and 1002-87Section 401 certification and Colorado dredge-and-fill programRules
      • Federal Register 2025–2026FR Doc. 2026-03883 (lesser prairie-chicken), FR Doc. 2026-14195 (harm), WOTUS and Section 401 proposalsthrough Nov 5, 2026
      • Project documents
      • DRM3_Action_Items_SH382_Kettle_Creek.docx13 questions from the Town, the environmental consultant and the roadway designer, Oct 28, 20263 pp.
      • Biological_Resources_Report_SH382_Kettle_Fork.pdfSpecies observations and the 2023 lek survey the questions refer to42 pp.

      Method

      1. Sources were limited to the ESA and 50 CFR Part 17, CWA Sections 404 and 401, the listed Colorado statutes and rules, and Federal Register actions through Nov 5, 2026. Nothing else was used for the answers.
      2. Each question was searched against the rule text and species lists. Excerpts are verbatim with citation, version and page; omitted text is marked […]. Highlighting is added.
      3. For rules that changed in 2025–2026, each version was kept with its dates so the answer can be read by date. Proposed rules are listed but not applied.
      4. Questions the sources can’t answer were marked outside or partial, with the rule that would be needed.

      Assumptions and limitations

      • The project has a federal nexus through the Section 404 permit for the Kettle Creek crossing.
      • State statuses come from the CPW list; the threatened designation section of Chapter W-10 was not part of the excerpt. The CPW list still shows the lesser prairie-chicken as federally listed, which is out of date after the federal removal, so the state statuses should be confirmed with CPW.
      • Answers state what the rules say. Jurisdiction, take and authorization questions need agency coordination with the Corps, FWS, CPW and CDPHE.
      • Actions published after Nov 5, 2026 are not included.
      • The Sep 1, 2026 start for CDPHE’s General and Individual Authorizations is taken from CDPHE’s program page. When Individual Authorizations began to be issued should be confirmed with CDPHE.