20191658 Ver 2_Hellbender Moratorium concerns_20200313

Wanucha, Dave
From: Beckwith, Loretta A CIV USARMY CESAW (USA) <[e-mail]>
Sent: Friday, March 13, 2020 10:45 AM
To: Wanucha, Dave
Cc: Matthews, Monte K CIV USARMY CESAW (USA); Jones, M Scott (Scott) CIV USARMY
CESAW (USA); Ellwanger, Claire F; Chambers, Marla J; Williams, Lori A
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