20130144 Ver 2_Other Agency Comments_20140224

STATE p.
STATE of NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
PATRICK L. MCCRORY
GOVERNOR
February 21, 2014
U.S. Fish and Wildlife Service
Attention: Mike Bryant
P.O. Box 1969
Manteo, NC 27954
Dear Mr. Bryant,
ANTHONY J. TATA
SECRETARY
In accordance with Special Use Permit #2013 -00.5, conditions # 3 and #5 under "Special
Conditions for Beach Nourishment at the NC -12 S- Curves Pea island National Wildlife Refuge ", The
North Carolina Department of Transportation ( NCDOT) is requesting that the U.S. Fish and Wildlife
Service (USFWS) Special Use Permit # 2013 -005 and Amendment 1, 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 permit's 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 their request for work extending beyond May 15, 2014. NCDOT has prepared a Biological Assessment
for the US Army Corps of Engineers (USACOE) to submit to the U.S. Fish and Wildlife Services
Ecological Division for their review. NCDOT and the LISACOE 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.
'I he Refuge was established in 1938 under Executive Order ti 7864 "in order to effectuate further
the purposes of the Migratory Bird Conservation Act (45 Stat.1222). Stipulations ofthe Migratory Bird
Treaty Act of 1918 (META) (16 U.S.C. 703 -712) require that the National Wildlife Refugc 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 Wildlife Refuge System and therefore put Pea
Island National Wildlife Refuge in jeopardy of criminal prosIOcution fOr illegal take and could result in a

federal injunction. "The iMigratory Bird Treaty Act of 1938 states that by virtue and pursuant to the
authority of the Migratory Bird 'I reaty Act of July 30 1980. ,areas designated as National Wildlife Refuges
can designate a closed area in which hunting, taking, capturing, killing, or attempting to hunt take capture
or kill migratory birds is strictly prohibited
As a commitment of this permit and in accordance with the MBTA, the NCDOT beginning; April
I will agree to issue a stop work order, in the till disposal activity area, to the dredge contractor at any time
during bird ncstin,) season as determined to be necessary by the Refuge manager for bird nesting activity on
the beach in accordance; with the MBTA. If bird nesting activity is observed on the beach within the fill
disposal activity area the Refuge inanager or designee tivill determine the range (size) of the bird closure
area and this closed area will not be disturbed by till disposal activity.
If no nesting,. activity has Occurred in ttte rill 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 till disposal activity area
the contractor will avoid disturbing; this closure, area until hatchlings have fledged.
US fish and Wildlife Service will not be required to coin inunicat:e directly with the contractor.
that responsibility will be with the 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 4�
Division One ironmental Officer
Cc: Henry Wicker, USACOE
David Wainwright, NCDWQ
Sterling Baker, NCDOT
Jamie Shern, NCDOT
Elizabeth Lusk, NCDOT
Doug Hugget, NCDCM