20191658 Ver 2_Hellbender Moratorium concerns_20200313 (2)

Wanucha, Dave
From: Chambers, Marla J
Sent: Monday, March 16, 2020 3:13 PM
To: Beckwith, Loretta A CIV USARMY CESAW (USA); Wanucha, Dave
Cc: Matthews, Monte K CIV USARMY CESAW (USA); Jones, M Scott (Scott) CIV USARMY
CESAW (USA); Ellwanger, Claire F; Williams, Lori A; Cox, David R.
Subject: RE: [External] RE: Bridge 8 Ashe Co Hellbender Moratorium concerns
We have been communicating with NCDOT regarding this bridge replacement over the North Fork New River.
We have come up with a protocol for limiting the projects we request notification or restrictions during the
hellbender breeding season to only those sites that can be verified breeding grounds. NCDOT is reviewing that
now and will provide comments on it, however, we understand that they intend to oppose it in general, at
least the seasonal restrictions.
We have Ashe Bridge #8 on the schedule to be surveyed this June to determine if the seasonal restrictions we
requested are still appropriate under our proposed protocol. We have been told that the construction will
begin in August. If the survey doesn't reveal appropriate habitat for breeding grounds, we will be happy to
drop the seasonal restrictions. If potential breeding grounds are found, we'd like the opportunity to survey in
August, just prior to construction, to relocate any hellbenders found and decide if additional notification of in -
water activities is warranted during the breeding season. NCDOT can have the surveys done by qualified
people prior to our sample, but we would appreciate coordination before and a copy of results afterwards.
When USFWS decided not to list it as T or E, they indicated that it should still receive protection to prevent it
from needing to be listed in the future. We believe that a proactive approach will benefit all parties involved,
including NCDOT. USFWS will surely look at the likelihood or existence of voluntary measures to protect this
vulnerable species in future petitions, in comparison with requiring T or E listing to obtain adequate protection
to save the species from extinction. A proactive approach will make listing, and the more severe restrictions,
less likely in the future.
The biology of the hellbender and bridge construction techniques make a dangerous combination for the
hellbender. Hellbender have external gills until the age of 18 to 24 months, after that they breathe through
their skin. They are so sensitive to silt, sediment and other pollution that they are considered a biological
indicator of water quality. Hellbenders need large, flat rocks and submerged trees to make nest sites that
provide safety from predators. Egg mortality tends to be high. During the breeding season, hellbenders, who
are otherwise solitary animals, are concentrating in small areas for breeding activity. They are less wary,
practically oblivious to dangers, during this season. The very nature of the hellbender makes it more
vulnerable to construction activities that cause sedimentation or re -suspend sediments in the waterway and
vulnerable to activities that move or install rocks, such as for causeways. Crushing of individuals and
smothering eggs or hellbenders with silt and sedimentation, while they are in concentrated areas can cause
significant harm to a population.
Here is a portion of the protocol we developed that explains what protection we believe is needed under
which circumstances:

"NCDOT has agreed to provide a list of projects to be constructed in those counties a year or two prior to
construction to allow NCWRC a chance to survey project waters where hellbenders may be impacted to
determine if additional protections are needed. NCWRC welcomes NCDOT-initiated surveys by well -qualified
individuals with appropriate permits and hellbender training or experience. These surveys should be
coordinated with and the results shared with NCWRC.
All construction projects involving waters where hellbenders are expected at the site or within 100 meters
downstream will be required to adhere to the Design Standards in Sensitive Watersheds. Diligent effort should
be employed to keep the sediment and erosion control measures well maintained.
Surveys conducted outside the breeding season will determine the presence of hellbender habitat and
potential hellbender use at the project site.
-If appropriate habitat does not exist —
1) No additional precautions are necessary.
-If appropriate habitat or hellbenders are found at the project site —1)A breeding season survey will be
scheduled and 2)NCDOT will provide NCWRC advanced notification (as early as possible, but at least 3 weeks
in advance) of the proposed start date of in -water work to allow for relocation of hellbenders in the project
footprint, especially in the in -water work footprint (i.e. causeways).
Surveys conducted during the breeding season (Approximately August 15 to November 15) will determine if
the project site is being used by the hellbender for important breeding and nursery purposes.
-If no sign of breeding activity is found on site —
1) Only advance notification of initial in -water work will be required (#2 above) -If evidence of reproduction
activity is found on site —
1) NCDOT will provide NCWRC advanced notification (as early as possible, but at least 3 weeks in advance) of
the proposed start date of in -water work to allow for relocation of hellbenders in the project footprint,
especially in the in -water work footprint (i.e. causeways) (same as #2 above) and
2) NCDOT will make efforts to accomplish in -water work outside of the breeding season for Hellbenders
(August 15-November 15). If that is not feasible NCDOT will provide NCWRC advanced notification of any in -
water work that is expected to occur during the breeding season to allow for relocation of hellbenders in the
footprint of new in -water work activities.
Construction activities that do not disturb the rocky habitat of the site may continue during the Eastern
Hellbender breeding season. Construction equipment may operate from a causeway and even drill through a
causeway. Activities may continue in any dewatered area or casement or diversion site that has been isolated
from normal water flows. Causeways that have been damaged or removed by flood waters, may be
reconstructed in the same location, if done within a week of water levels returning to normal. If
reconstruction will take place later, contact NCWRC to determine if a site visit for possible relocation of
hellbenders is appropriate before reconstruction."
We believe these are appropriate measures that may help to avoid the need for formal federal listing. They do
not appear to be overly restrictive on the construction side of things. The core is communication and advance
notification. We hope to work cooperatively with NCDOT and other partners to provide proper protection for
hellbenders at NCDOT projects.
Marla
Marla Chambers H NCDOT Coordinator
Habitat Conservation Program

NC Wildlife Resources Commission
c/o NCDOT
206 Charter Street
Albemarle, North Carolina 28001
Direct Office Line: 704-244-8907
mobile: [phone]
[e-mail]
ncwildlife.org
-----Original Message -----
From: Beckwith, Loretta A CIV USARMY CESAW (USA) <[e-mail]>
Sent: Friday, March 13, 2020 10:45 AM
To: Wanucha, Dave <[e-mail]>
Cc: Matthews, Monte K CIV USARMY CESAW (USA) <[e-mail]>; Jones, M Scott
(Scott) CIV USARMY CESAW (USA) <[e-mail]>; Ellwanger, Claire F
<[e-mail]>; Chambers, Marla J <[e-mail]>; Williams, Lori A
<[e-mail]>
Subject: [External] RE: Bridge 8 Ashe Co Hellbender Moratorium concerns
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Hi Dave,
Thanks for the background information. I also talked to Steve K. earlier.
For the overall issue - as I understand it, because the thought was that the Eastern Hellbender (Hellbender)
would be federally listed, moratoria and/or survey requirements were considered during the planning process
for a number of projects. NCDOT voluntarily agreed so that they wouldn't have to (1) start the planning
process over once the Hellbender was federally listed, or (2) stop construction so that the lead federal agency
could conduct consultation on the newly listed species. The USACE noted that NCDOT was voluntarily agreeing
to these items and that the USACE was not requiring them to do so (i.e., because the Hellbender was not
federally listed). Since that time, the USFWS has determined that the Hellbender will NOT be federally listed.
For this project (Bridge 8 in Ashe County) - the USACE did not special condition the verification letter to
require any survey (or similar activities) or moratorium for the Hellbender because NCDOT did not commit to
it in the PCN/project description, it is not federally listed, and the USACE does not have an agreement with
another agency for this species (as we do with the WRC for trout). If it were federally listed, we would have
either (1) determined "no effect", or (2) if "no effect" wasn't appropriate, we would have consulted with the

USFWS in accordance with Section 7(a)(2). Because the Hellbender is not federally listed, the USACE considers
NCDOT's compliance with a moratorium for this species, and/or a survey, as voluntary.
The WRC did submit an email dated January 15, 2020, which noted:
"For this Ashe Co. project, we appreciate the commitment to use Design Standards in Sensitive Watersheds,
which will provide some protection for the Eastern Hellbender that occur in the project vicinity. Rock lifting
and other disturbance of the river bottom should be avoided during the hellbender moratorium of August 15
to November 15 to provide protection during the nesting season. No trout moratorium is recommended. We
request that NCDOT coordinate with us regarding the construction schedule, especially the installation of the
causeway, so surveys and possibly hellbender relocations can occur before causeway construction. We also
appreciate any assistance NCDOT can provide in those efforts."
We did condition the verification letter to require Design Standards in Sensitive Watersheds because (1) it is a
recommendation from the WRC (under the Fish and Wildlife Coordination Act) that is within our area of
jurisdiction and (2) NCDOT committed to this in the PCN/project description. However, because the
Hellbender is not federally listed, NCDOT did not voluntarily commit to the moratorium or notification in the
PCN/description of work, and the USACE does not have an agreement with another agency for this species, we
did not condition the verification letter re the above referenced moratorium, nor did we condition the
verification letter regarding coordinating the construction schedule with WRC for the same reason.
While we always encourage permittees to avoid or reduce impacts to species, we cannot require them to (i.e.,
special condition) under our regulations unless certain circumstances are present - e.g., the subject species is
federally listed and there may be an effect to that species and consultation with the USFWS results in certain
conditions; federally designated critical habitat would be affected and consultation with the USFWS results in
certain conditions; we have an agreement with an agency, such as the WRC, re certain species (e.g., trout); the
permittee commits in the PCN to conduct work a specific way or in a specific manner; etc.
I haven't spoken to them directly, but I'm under the impression that the Division would be happy to
coordinate their construction schedule with WRC so that certain activities, such as relocations, can occur,
assuming that WRC can make itself available, but that will have to be worked out without the USACE.
Hopefully what I've written above makes sense.
Just let me know if you have any questions.
Thank you,
Lori
Lori Beckwith
Regulatory Project Manager
U.S. Army Corps of Engineers
Wilmington District
Asheville Regulatory Field Office
828-271-7980, ext. 4223
-----Original Message-----

From: Wanucha, Dave <[e-mail]>
Sent: Thursday, March 12, 2020 12:47 PM
To: Beckwith, Loretta A CIV USARMY CESAW (USA) <[e-mail]>; Ellwanger, Claire
<[e-mail]>; Chambers, Marla J <[e-mail]>; Williams, Lori A
<[e-mail]>
Subject: [Non-DoD Source] Bridge 8 Ashe Co Hellbender Moratorium concerns
Hey Lori,
We are honoring WRC's request for a Hellbender moratorium on this bridge project (see attached). However,
I am told that DOT does not intend to honor it and plans to elevate above Phi Harris.
Some background:
WRC, FWS and Corps worked together on a bridge project over the Little R. in Alleghany Co. (Bridge 21) where
Hellbenders occurred and agreed to allow work within the moratorium as long as surveys for search and
relocation were conducted prior to stream disturbances. Steve K. was involved with that one (Feb 2019). All
was going well until it stormed, raising river levels, which prevented search and relocation efforts. DOT could
not postpone operations any longer so all agreed they could proceed. I believe this was also during the
timeframe that the Hellbender was under consideration for endangered or threatened status.
So I suppose if push comes to shove, we may settle for a similar agreement with this bridge. Any thoughts?
Marla, Lori and Claire,
Do you all have any concerns with proceeding with this one as we did per the Bridge project in Alleghany Co
over the Little River?
Thanks for your help on this one.
Dave W.
Division of Water Resources
401 & Buffer Transportation Permitting
NC Department of Envirionmental Quality
336-776-9703 office
336-403-5655 mobile
[e-mail]
NC DEQ Winston Salem Regional Office
450 West Hanes Mill Road, Suite 300
Winston Salem, NC 27106
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