20130144 Ver 2_Other Agency Comments_20140224 (2)

dta. SPATE o-
STATE ot� NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
PATRICK L. MCCRORY ANTHONY J. TATA
GOVERNOR SECRETARY
February 21; 2014
Cape Hatteras National Park Service
Attention: Barclay Trimble
1401 National Park Service
Manteo, NC 27954
Dear Mr. Trimble,
The North Carolina Department of Transportation ( NCDOT) is requesting that the Cape Hatteras
National Park Service Special Use Permit # GOV13 -5700 -101, be extended to April 15, 2015. The current
permit was issued with an expiration date of May 15, 2014 with the anticipation of the proposed project
being completed within this time frame. However, due to unanticipated planning and contracting time
frames, it has become apparent that the proposed project will not meet that schedule. The new schedule is
being dictated by weather, environmental and contractor availability windows, which require flexibility
within the permits completion date. NCDOT's request to extend the permit to April 15, 2015, will provide
for an adequate time frame to insure a chance for successful contracting and completion of the proposed
project. It is NCDOT's intent to have the proposed project available for contracting in late summer / earlier
fall of 2014.
As part of this request to extend the expiration date, NCDOT has engaged in a formal Endangered
Species Act Section 7 consultation with the U.S. Fish and Wildlife Service ( USFWS) Ecological Division,
per there request for work extending beyond May 15, 2014. NCDOT has prepared a Biological
Assessment for the USACOE, to submit to the U.S. Fish and Wildlife Services Ecological Division for
their review. NCDOT.and the USACOE anticipate a response to the Biological Assessment in the form of a
Biological Opinion prepared by the USFWS Ecological Division. As conditioned in the previous
authorizations for beach nourishment, NCDOT will adhere to all requirements involving protected species
and continue to work with the USFWS Pea Island and NPS staff to insure compliance with their Special
Use Permits.
The Refuge was established in 1934 under Executive Order 1;7864 "in order to effectuate further
the purposes of the Nligratory Bird Conservation Act (45 Stat.1222). Stipulations ofthe Migratory Bird
Treaty Act of 1918 (MBTA) (16 U.S.C. 703 -712) require that the National Wildlife: Refuge and its
properties adhere to the protection of migratory birds. To knowingly allow any disturbances of migratory
birds would violate the legal requirements of the National Wildliic Refuge System and therefore put Pea
Island National Wildlife P.efuge in jeopardy of criminal prosecution for illegal take and could result in a
federal injunction. The Migratory Bird 'I reaty Act of 1938 states that by virtue and pursuant to the
authority of the Migratory Bird Treaty Act of July 30 1940, areas designated as National Wildlife Refuges

can designate a closed area in which hunting, taking. capturing, killing, or atternptinv to hunt take capture
or kill migratory birds is strict]) prohibited
As a commitment of this permit and in accordance with the MBTA, the NCDOT beginning April
1 will agree to issue a stop work order, in the fill disposal activity area, to the dredge contractor at any time
during bird nesting se.,ison as determined to be necessary by the Refuge manager for bird nesting activity on
the beach in accordance with the MB'TA. If bird nesting activity is observed on the beach within the fill
disposal activity area the Refuge manager or designee will determine the range (size) of the bird closure
area and this closed area will not be disturbed by fill disposal activity.
If no nesting activity has occurred in the fill disposal activity area by August I. the threat of stop
work order is over. if there is a nest or hatchlings in a designated closure in the fill disposal activity area
the contractor will avoid disturi)in11 this closure area Until hatchlings have fledged.
US Fish and Wildlife Scrvice will not be required to communicate directly with the contractor,
that responsibility will be with (lie USACE or NCDOT,
NCDOT appreciates your efforts and time involved in working with us on this project. Our ability
to maintain NC 12 as a viable route for the citizens of Hatteras Island involves cooperation and efforts from
federal and state agencies. Without your cooperation and efforts towards serving the public, it would not be
possible for NCDOT to fulfill this role. If you have questions or need additional information, please call me
at (252) 482 -1876.
Sincerely,
Jerry Jennings
Division One Engineer
//
Clay Willis G U. �/
Division One Environmental Officer
Cc: David Wainwright, NCDWQ
Sterling Baker, NCDOT
Jamie Shern, NCDOT
Elizabeth Lusk, NCDOT
Doug Hugget, NCDCM