20220725_BO_Duck KDH KH SS Amendment_DuckAccess

July 25, 2022

Mr. Josh Pelletier
Washington Regulatory Field Office
Wilmington District, Corps of Engineers
2407 West Fifth Street
Washington, NC 27889

Subject: Towns of Duck, Kill Devil Hills, Kitty Hawk, and Southern Shores
Amendment to Batched Biological Opinion
Action ID Numbers: SAW-2021-00566
SAW-2021-00568
SAW-2021-00569
SAW-2021-00567

USFWS Log numbers: 04EN2000-2021-F-1149
04EN2000-2021-F-1150
04EN2000-2021-F-1151
04EN2000-2021-F-1152

Dear Mr. Pelletier:

This document constitutes an amendment to the September 30, 2021, Biological Opinion (BO)
on the proposed dredging of offshore borrow sites and disposal of material on the beaches of
Duck, Kill Devil Hills, Kitty Hawk, and Southern Shores, in Dare County. The U.S. Fish and
Wildlife Service (Service) has amended the BO to include language addressing the need to use
an access point in Southern Shores for equipment and vehicles needed for the project in Duck,
NC.

Discussions with the applicants’ consultant indicate that the Town of Duck does not have any
viable access points for heavy equipment and pipes. The Town of Duck has unsuccessfully
explored a multitude of options to obtain construction access for the heavy equipment. All of the
beach accesses in the Town of Duck were established prior to the incorporation of the Town in
2002 and are controlled by homeowners’ associations. The Town worked with a number of
homeowners associations to secure approval for construction access. Ultimately, construction
access was only granted at Barrier Island Station and at Trinitie Dr./Quarterdeck Rd. Neither of
these areas are configured to allow access for the larger heavy equipment and pipes. During the
2017 project at Duck, the U.S. Army Corps of Engineers (Corps) Federal Research Facility
allowed the Town to use their property for construction access amenable for all heavy
equipment. However, the Corps has refused to grant permission for access for the 2022 project.
Approval for the use of the few potential access sites amenable for the convenance of heavy
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equipment to the project site was not granted to the Town by the entities responsible for these
access points.

The applicant proposes to drive all heavy equipment from the Southern Shores project area to the
Duck project area on the beach. The proposed access for the heavy equipment required for the
construction of the Duck beach nourishment project is on the oceanfront beach. During the
mobilization process for the project at Duck, this would include the oceanfront beach extending
from the northern limit of the Town of Southern Shores project, which is located approximately
1,000 feet north of the Town of Southern Shores northern boundary in the Town of Duck (Sta.
D-33), to the southern limit of the Town of Duck project (Sta. D-19) constituting approximately
2.40 miles of oceanfront beach. During the demobilization process for the Duck project, the
equipment would traverse the beach from the location where the project is completed (most
likely in proximity to Sta. D-10) and then continue southward through the southern limit of the
Duck Project at Sta. D-19 and continue to the construction access point at Trout Run in Southern
Shores (Sta. 95+00) which is located approximately 2.15 miles south of the northern limits of the
Southern Shores project area.

The following conservation measures have been proposed by the applicant:

• One nest was laid within the travel way on May 30, 2022. Because sea turtle nests
typically incubate for ~60 days and the anticipated date of mobilization of heavy
equipment along the beach is not anticipated to occur until early or mid-September, the
nest is not expected to remain active during transit of equipment.
• The sea turtle monitors will inform the Town, their consultant, and the contractor of the
presence of all sea turtle nests within the 2.4-mile transit area. The Town of Duck agrees
to leave in place any nest that is not potentially going to be impacted by either traveling
equipment or work on the beach. These nests will be adequately marked and the
contractor’s equipment will maintain an appropriate distance from all nests. However,
any nests that may be impacted by traveling equipment or work on the beach will be
relocated as soon as permission is granted. Sea turtle nests that require relocation will be
moved within a 2-3 mile area located just north of the Town of Duck project limits or
within a 2.1 mile area located between the southern limits of the Kill Devil Hills project
and the town’s southern boundary. These nests will be relocated to a suitable area on the
beach in which they will not be threatened by inundation. In addition, they will marked
and monitored to help with their protection until hatching.
• The contractor will limit the amount of time traversing the beach with heavy equipment
as much as possible. Heavy equipment will primarily be limited to traversing the beach
over the course of two days during the mobilization and demobilization processes. In
addition, the equipment will not traverse the beach until the turtle monitors give the “all
clear” each morning to minimize the risk of damage to any turtle nests in the area. The
equipment will traverse the beach as close to the MHW line as possible as another
method to reduce risks.
• Once within the construction area, all equipment will remain staged within the
active construction area which will be fenced off and will be monitored by the sea turtle
monitoring staff.

Our review of the modification indicates that although the length of the area subjected to take has
changed, the area that is proposed to be traversed is still within the Action Area that was
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considered. The applicant has proposed Conservation Measures to minimize the possibility of
take from movement of heavy equipment up and down the beach.

Therefore, the overall impacts to sea turtles remain unchanged. The Terms and Conditions in the
BO will be modified as stated below to avoid, minimize, and mitigate for adverse impacts to sea
turtle species.

Accordingly, the BO issued to your agency on September 30, 2021, is revised as follows. These
changes will apply to all work conducted under the BO for the Town of Duck, Town of Kill
Devil Hills, Town of Kitty Hawk and Town of Southern Shores:

Section 2: PROPOSED ACTION: SAND PLACEMENT

The fourth paragraph of Section 2 is amended as follows (language additions are underlined):

Town of Duck: The proposed action includes sand placement along 8,414 lf of the Town’s
oceanfront shoreline, and vehicle/equipment travel along an additional 12,672 lf (2.4 miles) of
shoreline, for a total of 21,086 lf of impacted shoreline. The proposed design consists of a 20-
foot-wide dune at elevation +20 feet NAVD88, with a seaward slope of 1V:5H, fronted by a
variable width berm at elevation +6 feet NAVD88. The main placement area begins near the
northern property boundary of 140 Skimmer Way and extends approximately 7,914 feet
southward, terminating in the middle of the parcel at137 Spindrift Lane. Additionally, there is
one 500-foot taper on the north end of the main fill, that extends from the northern boundary of
the main placement to the property line between 126 and 128 Skimmer Way. The contractor will
utilize access areas at Barrier Island Station (located within the Town of Duck, but just south of
the project area) and at Trinitie Drive/Quarterdeck Rd. (located within the Duck project area) for
the transportation of lighter ancillary equipment such as light plants, fuel trucks to deliver fuel,
port-a-john servicing, vehicles for mechanics to access yellow equipment, and other support
equipment, the contractor needs to mobilize the heavy equipment to the Duck project area via the
beach from the northern limit of the Southern Shores project (approximately 2.4 miles of
shoreline). The Duck project is not anticipated to begin until early September 2022.

The equipment anticipated to traverse the beach from the northern limits of the Southern Shore
project to the southern limit of the Duck project includes:

• (2) D8 Bulldozers
• (4) D6 Bulldozers
• (3) Wheeled Front Loaders
• (2) Conex Boxes
• (4) Fuel Tanks 500 Gallon
• (2) Y-Valves
• Approx. 100 Steel 30" Shore Pipe

The equipment that will access the Duck project area via the permitted construction access
within the project limits or within the Town limits include those located at Barrier Island Station
and at Trinitie Drive/Quarterdeck Rd. Due to the constraints of these construction access sites,
only ancillary equipment such as light plants, fuel trucks to deliver fuel, port-a-john servicing,
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vehicles for mechanics to access yellow equipment, and other support equipment will be
delivered to the project area through these points.

Figure 2-1 is amended as follows:

Figure 2-1. Action Area for the Towns of Duck, Southern Shores, Kitty Hawk, and Kill Devil
Hills (from Coastal Protection Engineering of North Carolina, Inc., 2022). The Action Area
extends from the northern boundary of Duck to the southern boundary of Kill Devil Hills.

Section 5.1.1 Amount or Extent of Take

Section 5.1.1 is amended as follows (revised take amounts are underlined):

5.1.1 Sea Turtles

Instructions for monitoring and reporting take are provided in section 5.4. The Service
anticipates as much as 74,184 lf of nesting beach habitat could be taken as a result of this
proposed action. The amount of take is directly proportional to the spatial/temporal extent of
occupied habitat that the Action affects and exceeding this extent would represent a taking that is
not anticipated in this BO.

The conservation of the five loggerhead recovery units in the Northwest Atlantic is essential to
the recovery of the loggerhead sea turtle. Each individual recovery unit is necessary to conserve
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genetic and demographic robustness, or other features necessary for long-term sustainability of
the entire population. Thus, maintenance of viable nesting in each recovery unit contributes to
the overall population. The NRU, one of the five loggerhead recovery units in the Northwest
Atlantic occurs within the Action Area. The NRU averages 5,215 nests per year (based on 1989-
2008 nesting data). Of the available nesting habitat within the NRU, construction will occur
and/or will likely have an effect on as much as 10 miles of nesting shoreline.

Generally, green, leatherback, and Kemp’s ridley sea turtle nesting overlaps with or occurs
within the beaches where loggerhead sea turtles nest on both the Atlantic and Gulf of Mexico
beaches. Thus, for green, leatherback, and Kemp’s ridley sea turtles, sand placement activities
will affect up to 74,184 lf of shoreline.

Research has shown that the principal effect of sand placement on sea turtle reproduction is a
reduction in nesting success, and this reduction is most often limited to the first year or two
following project construction. Research has also shown that the impacts of a nourishment
project on sea turtle nesting habitat are typically short-term because a nourished beach will be
reworked by natural processes in subsequent years, and beach compaction and the frequency of
escarpment formation will decline. Although a variety of factors, including some that cannot be
controlled, can influence how a nourishment project will perform from an engineering
perspective, measures can be implemented to minimize impacts to sea turtles.

The Service anticipates that the Action is reasonably certain to cause incidental take of individual
sea turtles consistent with the definition of harassment. The Service anticipates that the Action is
reasonably certain to cause incidental take of individual eggs and hatchling sea turtles consistent
with the definition of harm. Take is expected to be in the form of:

(1) destruction of all nests that may be constructed and eggs that may be deposited and
missed by a nest survey, nest mark and avoidance program, or egg relocation program
within the boundaries of the proposed project;
(2) destruction of all nests deposited during the period when a nest survey, nest mark and
avoidance, or egg relocation program is not required to be in place within the boundaries
of the proposed project;
(3) reduced hatching success due to egg mortality during relocation and adverse
conditions at the relocation site;
(4) harassment in the form of disturbing or interfering with female turtles attempting to
nest within the construction area or on adjacent beaches as a result of construction
activities;
(5) misdirection of nesting and hatchling turtles on beaches adjacent to the sand
placement or construction area as a result of project lighting;
(6) behavior modification of nesting females due to escarpment formation within the
Action Area during the nesting season, resulting in false crawls or situations where they
choose marginal or unsuitable nesting areas to deposit eggs; and
(7) Destruction of nests from escarpment leveling within a nesting season when such
leveling has been approved by the Service.

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Surrogate Measures for Monitoring

For this and other sand placement BOs, the Service typically uses a surrogate to estimate the
extent of take. The amount of take is directly proportional to the spatial/temporal extent of
occupied habitat that the Action affects, and exceeding this extent would represent a taking that
is not anticipated in this BO. The Service anticipates incidental take of sea turtles will be
difficult to detect for the following reasons: (1) the turtles nest primarily at night and all nests are
not found because [a] natural factors, such as rainfall, wind, and tides may obscure crawls and
[b] human-caused factors, such as pedestrian and vehicular traffic, may obscure crawls, and
result in nests being destroyed because they were missed during a nesting survey, nest mark and
avoidance, or egg relocation program (2) the total number of hatchlings per undiscovered nest is
unknown; (3) the reduction in percent hatching and emerging success per relocated nest over the
natural nest site is unknown; (4) an unknown number of females may avoid the project beach and
be forced to nest in a less than optimal area; (5) lights may misdirect an unknown number of
hatchlings and cause death; and (6) escarpments may form and prevent an unknown number of
females from accessing a suitable nesting site.

However, the level of take of these species can be anticipated by the sand placement activities on
suitable turtle nesting beach habitat because: (1) turtles nest within the Action Area; (2)
construction is proposed to occur during the nesting season; (3) the nourishment project(s) will
modify the incubation substrate, beach slope, and sand compaction; and (4) artificial lighting will
deter and/or misdirect nesting hatchling turtles.

When it is not practical to monitor take in terms of individuals of the listed species, the
regulations at 50 CFR §402.14(i)(1)(i) indicate that an ITS may express the amount or extent of
take using a surrogate (e.g., a similarly affected species, habitat, or ecological conditions),
provided that the Service also:
• describes the causal link between the surrogate and take of the listed species; and
• sets a clear standard for determining when the level of anticipated take has been
exceeded.
We have identified surrogate measures in our analyses of effects that satisfy these criteria for
monitoring take of the species named above during Action implementation. Table 5-1 lists the
species, life stage, surrogate measure, and the section of the BO that explains the causal link
between the surrogate and the anticipated taking. We describe procedures for this monitoring in
section 5.4.

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Table 5-1. Surrogate measures for monitoring take of listed sea turtle species caused by the
Action, based on the cited BO effects analyses.

Common Name Life Stage Surrogate (units) Quantity
BO Effects
Analysis Section
Loggerhead Sea
Turtle
Egg,
Hatchling,
and Adult
Linear feet of
shoreline 74,184 4.3.1
Green Sea Turtle
Egg,
Hatchling,
and Adult
Linear feet of
shoreline 74,184 4.3.1
Leatherback Sea
Turtle
Egg,
Hatchling,
and Adult
Linear feet of
shoreline 74,184 4.3.1
Kemp’s ridley Sea
Turtle
Egg,
Hatchling,
and Adult
Linear feet of
shoreline 74,184 4.3.1

5.3 Terms and Conditions

The Terms and Conditions (T&C) are amended as follows:

T&C #14. Vehicle Access: Access points for construction vehicles must be as close to the
project site as possible. Construction vehicle travel down the beach must be limited to the
maximum extent possible. For the Town of Duck’s project, only the vehicles and equipment
listed in Section 2 as requiring access from the oceanfront may access the work area from the
Town of Southern Shores and traverse the beach. All other vehicles and equipment must utilize
access areas within the work area or as close as possible within the Town of Duck. Vehicles and
equipment traversing the beach must travel at low tide and in wet sand to the extent possible.
Mobilization and demobilization of equipment and vehicles to the Duck work area must only be
conducted during daylight hours after the daily survey for sea turtle nests has been completed.

T&C #15. Staging. From May 1 through November 15, staging areas for construction
equipment must be located off the beach. Nighttime storage of construction equipment not in
use must be off the beach to minimize disturbance to sea turtle nesting and hatching activities.
In addition, all construction pipes placed on the beach must be located as far landward as
possible without compromising the integrity of the dune system. Pipes placed parallel to the dune
must be 5 to 10 feet away from the toe of the dune if the width of the beach allows. If pipes are
stored on the beach, they must be placed in a manner that will minimize the impact to nesting
habitat and must not compromise the integrity of the dune systems. The exception to this is the
Town of Duck work area, where nighttime storage of construction equipment is allowed on the
beach; however, any equipment or vehicles on the beach in Duck must be secured within the
active work area and monitored to ensure that no sea turtles become entrapped.

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If you have any questions, please contact Kathy Matthews at [phone], ext. 27 or
[e-mail]. In future correspondence concerning these projects, please
reference the Service’s Log Numbers, listed at the top of this letter.

Sincerely,

Pete Benjamin
Field Supervisor

cc (via email):

USFWS, Jacksonville, FL (Karen Frutchey)
NMFS, Pivers Island
NCDCM, Morehead City, NC
NCWRC, Washington, NC
Town of Duck
Town of Kill Devil Hills
Town of Kitty Hawk
Town of Southern Shores