Did an Aurora Water construction project put fox dens in jeopardy?

Colorado is home to incredible wildlife, and this time of year is when some animals are giving birth to their young – like red foxes. Yet as communities grow, construction is impeding on their habitats.

Like the construction underway in east Denver in the First Creek Open Space. That's where wildlife photographer Haley Johnson has spent a lot of time documenting red foxes that have built dens and raised families for years.

"It's so unique and beautiful to see something so intimate like mothers nursing kits 50 feet away from you," Johnson told CBS Colorado's Kelly Werthmann.

Johnson often visits the open space with fellow wildlife photographers, capturing images of red foxes and their young every spring. She was hoping to do the same this year, but in February she noticed something unusual.

"There were survey stakes all over this area that hadn't been there previously," she said of the open space.

The sights and sounds of a construction project put Johnson on high alert. She said she was worried about foxes likely giving birth in the coming weeks, and their new kits that would be burrowing below.

"At the time all of this happened, if there were kits in one of these dens, they would've only been 2 or 3 weeks old," Johnson explained. "At that point, they're blind, they're deaf, they can't thermoregulate themselves. There's almost zero chance that they would've been able to relocate successfully. Even if [the mother] tried to move them, the temperature shock might have still been enough to kill them."

Over the next several weeks, Johnson began exchanging messages with Denver Parks and Recreation, which manages the open space. That's how she learned the project at First Creek was for Aurora Water to install a sewer line. Johnson exchanged messages with them as well but felt like her concerns were "falling on deaf ears."

"I did follow up and ask what their [wildlife mitigation] procedures specifically were, and I never got a response to that question," she said.

That's when she turned to CBS News Colorado for help.

"Before we start any project, we have to do an environmental investigation," said Greg Baker, manager of public relations for Aurora Water.

During an interview with Werthmann at the site of the sewer line project, Baker explained a site assessment was completed there in 2021. He said their environmental engineers found no signs of active fox dens.

"There's really no way to tell if there are kits in place other than going by that season point that kits are typically born in late spring," Baker said. "We know that wildlife will move out of the area if there's construction, so if you look at our timing when we started this, we should have been in a good position to begin this activity without impacting the wildlife."

But that's what Johnson says she was trying to warn, notifying Aurora Water that she's watched foxes emerge from the dens in the project zone for the last several seasons. She believes new litters would likely arrive this spring.

"We've seen adults hanging around," she said, pointing out fresh fox tracks in the dirt road that now runs through the middle of the open space. "But with kits, it's so hard to 100% say they were in [the dens] or not until they actually are old enough to come out."

While red foxes are not an endangered or protected species in Colorado, there are protections for active dens according to Colorado Parks and Wildlife. That is another reason why Johnson started a petition, gathering hundreds of signatures, hoping to delay Aurora Water's project until it was certain the dens were empty.

"This is a sewer project. It's not something you can delay," said Baker. "Not something you can defer on; it really needs to be done."

With the earth moved and some dens destroyed, Johnson feels like it's too little too late. If there were fox kits in the dens, she said they likely were too young to leave on their own before construction began.

"I'm really frustrated that I asked them to have a biologist come out to determine if the dens were actually occupied or not, and they refused that request," Johnson told CBS News Colorado.

When asked if he's concerned that Aurora Water's construction may have buried fox kits alive, Baker replied:

"We're sympathetic to the concerns there. Again, we have to rely upon the fact they're going to move on. I don't want to focus on a specific species because somebody felt they were specifically aesthetically appealing, that they're very cute. There are lots of animals at this site. They will recover, they have moved on, they will come back, they will recover."

Johnson has no choice now but to move on. Still, she is hopeful what happened at First Creek Open Space starts a greater conversation about protecting all of Colorado's wildlife.

"If they truly followed protocol and didn't do anything wrong, and played by the rules so to speak, why are these the rules? Why aren't there better protections for wildlife? We should talk about better protections for wildlife that aren't endangered," she said. "Something like this is just incredible and it deserves to be protected."