20200618 Ver 1_USACE Permit_20200730

U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action ID. 2020-00850
County: Yancey
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Permittee: Yancey County
Address: 110 Town Square Room 1
Burnsville, NC 28714
loren.deyton(cD-yanceycountync.gov
Location description: 35.915397,-82.382960, 258 Whittington Rd Burnsville, NC 28714. PINS 989002851105000,
989004743836000
Description of projects area and activity:
This permit authorizes temporary impacts to the Cane River consisting of boulder/brush toe, geolifts, and coarse
sediment fill. Impacts to stream channels authorized by this permit total of 430 linear feet of the Cane River; 410' of
permanent impacts and 20' temporary impacts.
Attached are recommendations from the North Carolina Wildlife Resource Commission for your consideration. In
order to minimize adverse effects to the federally endangered species Appalachian Elktoe (Alasmidonta ravaneliana)
found at the proiect site, the following terms, conditions and conservation measures from the Biological Opinion
(USFWS, dated 07/13/20) are incorporated as special conditions of this permit authorization.
1. No in -stream activities in the Cane River until mussel relocation has occurred through coordination with
the USFWS, Asheville Field Office (Jason Mays); NCWRC Lori Williams (lori.williams(&ncwildlife.org)
and Luke Etchison(luke.etchison(&ncwildlife.org); contact must be made at least three weeks before
construction begins, so that rare and listed animals may be relocated from the proiect area
2. If during excavation/installation of stone/brush toe and geolifts or Floodplain Bench Restoration any
Appalachian Elktoe are found, then work will cease until coordination with USFWS can occur to relocate
discovered animals.
3. The existing 40-foot wide floodplain bench should be planted in native riparian trees and shrubs.
4. Tree removal on the berm should be limited to a few trees (primarily Black Walnut or trees that
are weak and threatening to fall) and primarily on the downstream end of the proiect.
5. Visual monitoring of the proiect shall be conducted at a minimum of quarterly for the
first year or two bankfull events (whichever is longer), and then annually until the site is
stable (particularly after storm events) and vegetation is successful.
Applicable Law: ® Section 404 (Clean Water Act, 33 USC 1344)
❑ Section 10 (Rivers and Harbors Act, 33 USC 403)
Authorization: Regional General Permit Number or Nationwide Permit Number: 13
SEE SPECIAL CONDITIONS above and attached
Your work is authorized by the above referenced permit provided it is accomplished in strict accordance with the
attached conditions, above noted special conditions, and your submitted application and attached information dated
May 7, 2020. Any violation of the attached conditions or deviation from your submitted plans may subject the permittee
to a stop work order, a restoration order, a Class I administrative penalty, and/or appropriate legal action.
This verification will remain valid until the expiration date identified below unless the nationwide/regional authorization is
modified, suspended or revoked. If, prior to the expiration date identified below, the nationwide/regional permit authorization
is reissued and/or modified, this verification will remain valid until the expiration date identified below, provided it complies
with all requirements of the modified nationwide/regional permit. If the nationwide/regional permit authorization expires or is
suspended, revoked, or is modified, such that the activity would no longer comply with the terms and conditions of the
nationwide/regional permit, activities which have commenced (i.e., are under construction) or are under contract to commence
in reliance upon the nationwide/regional permit, will remain authorized provided the activity is completed within twelve months
of the date of the nationwide/regional permit's expiration, modification or revocation, unless discretionary authority has been
exercised on a case -by -case basis to modify, suspend or revoke the authorization.

Activities subject to Section 404 (as indicated above) may also require an individual Section 401 Water Quality Certification.
You should contact the NC Division of Water Resources (telephone [phone]) to determine Section 401 requirements.
For activities occurring within the twenty coastal counties subject to regulation under the Coastal Area Management Act
(LAMA), prior to beginning work you must contact the N.C. Division of Coastal Management.
This Department of the Army verification does not relieve the permittee of the responsibility to obtain any other required
Federal, State or local approvals/permits.
If there are any questions regarding this verification, any of the conditions of the Permit, or the Corps of Engineers regulatory
program, please contact Brandee Boggs at 828-271-7980, ext. 4224 or [e-mail].
Corps Regulatory Official: 52awr,� (� lU�e � Date: July 30, 2020
Brandee C. Boggs
Expiration Date of Verification: March 18, 2022
CF: CEC [e-mail]; USFWS [e-mail]; NCWRC [e-mail]; Headwaters
Engineering [e-mail]; NCDWR [e-mail]; NCWRC [e-mail];
NCWRC [e-mail]
Action ID Number: SAW-2020-00850
Permittee: Yancey County
County: Yancey
Project Name: SAW 2020-00850 Cane River Park Stream Bank Stabilization
Date Verification Issued: July 30, 2020
Project Manager: Brandee C. Boggs
Upon completion of the activity authorized by this permit and any mitigation required by the permit,
sign this certification and return it to the following address:
US ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Attn.: Brandee
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006
Please note that your permitted activity is subject to a compliance inspection by a U. S. Army Corps of
Engineers representative. Failure to comply with any terms or conditions of this authorization may

result in the Corps suspending, modifying or revoking the authorization and/or issuing a Class I
administrative penalty, or initiating other appropriate legal action.
I hereby certify that the work authorized by the above referenced permit has been completed in
accordance with the terms and condition of the said permit, and required mitigation was completed in
accordance with the permit conditions.
Signature of Permittee
Date

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FISH WHMMFE
SERVICE
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Asheville Field Office
160 Zillicoa Street Suite #B
Asheville, North Carolina 28801
July 13, 2020
Scott Jones
Field Office Chief
U.S. Army Corps of Engineers
Asheville Regulatory Field Office
151 Patton Avenue, Room 208
Asheville, North Carolina 28801
Dear Mr. Jones:
Subject: Proposed Cane River Park streambank restoration in Yancey County, North
Carolina under Nationwide Permit 13
This document transmits the U.S. Fish and Wildlife Service's (FWS) biological opinion
(Opinion), based on our review of the proposed action and its effects on federally
endangered Appalachian elktoe (Alasmidonta ravaneliana). This document is written in
accordance with section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C.
1531-1543) (Act). The primary applicant, Yancy County Parks and Recreation
Department, is represented by Headwaters Engineering (HWE) and C1earWater
Environmental Consultants (CWEC), collectively known as Applicants hereafter. The
project proposes the repair of a flood control berm damaged in a 2018 flood event. The
construction of the project is likely to have a negative effect on Appalachian elktoe
known to be present in the Cane River at this location, necessitating formal consultation.
This Opinion is based on information provided in a Biological Assessment (BA)
submitted to the Service on July 2, 2020; phone conferences, emails, personal
ommunications with experts on the affected species; and other sources of information. A
complete administrative record of this consultation is on file at this office.
In addition to the Appalachian elktoe, northern long-eared bat (Myotis septentrionalis, NLEB) is
known to be present in Yancey County and could be affected by tree removal. The proposed action
involves the removal of around 17 black walnut trees on the existing berm. The black walnut trees
are expected to negatively affect the planting of streamside vegetation intended to stabilize the
newly constructed riverbank. The removal of these trees meets the criteria outlined in the
Biological Opinion completed on the 4 (d) rule for northern long-eared bat completed on January 5,
2016. As such this activity is excepted from take prohibitions for this species. In addition to this
rule, Headwaters Engineering committed to removing as few trees as possible and limiting removal
only to those trees that are likely to affect the establishment of riparian vegetation. This
commitment reduced the number of trees to be removed from several dozen to around 17, a
substantial reduction that will allow the maintenance of some mature buffer trees along the river.
These remaining trees should provide adequate habitat for bats roosting and foraging in the area.
As such, we concur with the Not Likely to Adversely Affect determination that was included as an
attachment to the original Pre -Construction Notification (PCN) submitted on May 7, 2020.

CONSULTATION HISTORY
• May 7, 2020 — Mr. Byron Hamstead (FWS) received email notification that Ms. Alea Tuttle
(CWEC) had submitted a PCN for the repair of the failed riparian berm at the Cane River Park
located along Whittington Rd. in Yancey County, North Carolina.
• May 7, 2020 — Ms. Andrea Leslie (North Carolina Wildlife Resources Commission, NCWRC)
emailed Mr. Byron Hamstead and Mr. Jason Mays (FWS) to attend a phone discussion with
employees of NCWRC to discuss the project.
• May 11, 2020 — A phone conference was held between Ms. Andrea Leslie, Dr. Luke Etchison,
Mr. Dylan Owensby (NCWRC) and Mr. Byron Hamstead and Mr. Jason Mays (FWS). These
two agencies discussed effects to state and federal listed species with a resolution to request that
the applicants agree to measures designed to reduce the adverse effects of the proposed action
and an intention to have an onsite meeting to gather project specific information and convey this
request.
• May 27, 2020 — An onsite meeting was held with Ms. Andrea Leslie, Dr. Luke Etchison, Mr.
Dylan Owensby (NCWRC), Mr. Andrew Bick (HWE), Ms. Alea Tuttle (CWEC), and
representatives from Yancey County Parks and Recreation Department. Due to the ongoing
Covid 19 quarantine, representatives from USACE and FWS were not able to attend.
• May 27, 2020 — A phone conference was held between Mr. Jason Mays (FWS) and Ms.
Brandee Boggs (USACE) to discuss the need for formal consultation on this project due to the
presence of federally endangered Appalachian elktoe known from this site.
• June 15, 2020 — Mr. Byron Hamstead (FWS) was copied on a letter conveying
recommendations from the NCWRC to the USACE regarding avoidance and minimization to
avoid listed species.
• June 22, 2020 — A phone conservation was held between Mr. Jason Mays (FWS) and Mr.
Andrew Bick (HEC) concerning additional engineering information needed to assess the effects
to the species.
• June 26, 2020 — Mr. Jason Mays (FWS) was copied on the transmission of the requested
supplemental information concerning engineering, construction and avoidance measures sent
from Mr. Andrew Bick (HWE) to Ms. Brandee Boggs (USACE).
• July 2, 2020 — A phone conference was held between Mr. Jason Mays (FWS), Ms. Brandee
Boggs (USACE), and Ms. Alea Tuttle (CWEC) to discuss the final submission of a request for
formal consultation with FWS. It was agreed that this request would include a permit condition
that HWE would contact the FWS and NCWRC at least 3 weeks prior to the start of in -water
construction so that a mussel and hellbender relocation can be attempted.
• July 2, 2020 — Ms. Brandee Boggs (USACE) transmitted the BA and a request for formal
consultation to Mr. Jason Mays (FWS).
DESCRIPTION OF THE PROPOSED ACTION AND ACTION AREA
As defined in the Service's section 7 regulations (50 CFR 402.02), "action" means "all activities or
programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in
the United States or upon the high seas." The action area is defined as "all areas to be affected
directly or indirectly by the Federal action and not merely the immediate area involved in the
action." The direct and indirect effects of the actions and activities must be considered in
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conjunction with the effects of other past and present Federal, state, or private activities, as well as
the cumulative effects of reasonably certain future state or private activities within the action area.
This Opinion addresses only those actions for which we believe adverse effects may result. In their
BA, the applicants outlined those activities necessary to stabilize the riparian area along the Cane
River adjacent to the Cane River Park in Yancey County, North Carolina (35.914174/-82.384436,
Appendix A). Bank stabilization of this nature is not able to be performed without some activities
taking place in the wetted part of the river channels. As such, there will be disturbance of the stream
bed within the limits of disturbance, as shown on plan sheet, and turbidity associated with this
project may affect areas downstream from the proposed work and may impact the Appalachian
elktoe and its habitat for some distance downstream. Therefore, we designate the action area to
include all areas of direct impact from construction and areas adjacent to and downstream of
construction that may be affected by intermittent turbidity.
Information about project design is available in the plan sheets, Appendix B, and in the following
narrative project description below (copied from the BA in italics):
Project Overview
The project includes work on approximately 400 linear feet of the Cane River, which flows south
and west of the County's Cane River Park. The river bank and a berm that provided flood control
to the park were damaged during Hurricane Florence in October 2018. The immediate project
reach of the Cane River is bordered on the north side by the county park and on the south side by
an agricultural field.
The objectives of the project include:
• Restoring the river bank and floodplain to improve aquatic habitats and provide protection
for the repaired berm;
• Re -building the berm using engineered fill;
• Removing coarse sediment deposits from the northern edge of the river channel and on
adjacent park lands; and
• Establishing native riparian trees and shrubs on the bank and buffer in order to reinforce
the bank soils and provide shade to the river.
The county obtained grant funding from FEMA to complete the work.
Construction Sequence
The contractor will proceed with construction according to the following sequence:
• Mobilize materials and equipment to the site.
• Using a track -mounted excavator operating from outside of the flowing water as much as
possible, place pre -cast concrete jersey barriers or similar barrier structures in the river at
the edge of the limits of disturbance.
• Place plastic sheeting and sand bags on the river side of the barrier using hand labor.
• Per the conditions of the June 16, 2020 Water Quality Certification, the length of the
diversion will be limited to that which may be removed from the river prior to any storm
that could causethe river to overtop the barrier.

• All in -stream work will take place behind the barrier.
• Using excavators, gather wood debris and salvage for use in the boulder/brush toe.
• Remove designated trees from the berm and haul salvaged logs and limbs to the
boulder/brushtoe location.
• Using excavator(s) and bulldozer(s), remove up to 8 inches of cobble and gravel deposits
the northern edge of the river channel and stockpile for later re -use.
• Install boulder/brush toe beginning in a 2-foot deep trench and extending about 2 feet
above the design river bed elevations.
• Once the boulder/brush toe has been installed over the entire length of the bank repair,
begininstalla tion of geolifts as follows:
a) Using hand tools, install roll of coin matting (generally 6. S feet wide and 166 feet
long) lengthwise along the toe and anchor the matting to the foundation stone with
wooden stakes, leaving about 4 feet of the roll width to the river side of the
foundation stone;
b) Using hand tools, install and anchor coin logs (12-inch diameter by 10 feet long)
along the river side face of the geolift;
c) Using an excavator or bulldozer, spread and lightly compact imported sand/clay soil
in horizontal lifts behind the coin logs to reach the 12-inch lift thickness;
d) Seed and mulch the "tread' portion of the geolift that will be exposed at the surface;
e) Wrap river side flap of coin matting over the coin logs and soil lift and anchor to top
of lift using wooden stakes; and
f) Proceed with remaining lifts according to steps a through e to reach the top of the
third course.
• Once the third and final course of geolifts is in place, remove sand bags and plastic
sheeting from the river side of the barriers, and use an excavator to lift the barriers from
the river and place them beyond the land side of the geolifts to be hauled away from the
work area.
• Restore river flow to its full width.
• Construction of the floodplain bench and berm will take place without a diversion in
place, but the contractor will be required to stabilize all earthwork by the end of each
workday in order to minimize the potential for downstream sedimentation should the river
stage rise.
If work proceeds according to the plan and the bank, floodplain and berm construction can be
completed without a major storm affecting the project site, we anticipate that impacts to aquatic
habitats will be negligible. We expect that typical summer thunderstorms would not cause the river
to overtop the diversion because the river would need to stage up about 3 feet above base flow for
this to occur. The likely worst -case scenario is that an unexpected storm causes the river to rise
quickly and the contractor is unable to fully remove the diversion or otherwise stabilize the work
area before it is flooded. High flows could destabilize partially -completed boulder/brush toe and
scour these materials and/or nearby bed materials. Once the boulder/brush toe is completed, the
size of the stone and the integrated nature of the installation is such that it will be highly resistant
to erosion. If high flows were to reach geolifts that were under construction, it is possible that some
of the soil used in the geolifts could be eroded and washed downstream. However, our observations
from previous work on the Cane River suggests that turbidity is likely be elevated from runoff
throughout the 64 square mile watershed and that any excess turbidity from the immediate work
area is likely to be minimal.
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Conservation Measures
Conservation measures represent actions, pledged in the project description, that the action
agency will implement in order to minimize the effects of the proposed action and further the
recovery of the species under review. Such measures should be closely related to the action
and should be achievable within the authority of the action agency. We consider the
beneficial effects of conservation measures in making our determination of whether the
project will jeopardize the species and in the analysis of incidental take.
In a project involving stream restoration, the intent is to remedy an erosional problem to
prevent future negative effects to the waterway. The nature of the necessary activities involve
construction within the waterway that will cause temporary turbidity within the system and
may result in harm to species or habitat. In this case, the Applicants have proposed to use the
best management practices available to minimize this effect and will respond adaptively to
minimize the effects of turbidity as they arise during construction. The Applicants have
committed to working constructively with representatives from the FWS to minimize the
effects to Appalachian elktoe and its habitat. The following conservation measures were
included in the BA as project commitments (copied from the BA in italics):
Conservation Measures
The design attempts to minimize impacts and maximize benefits to aquatic and terrestrial habitats
through the following measures:
• Bank restoration will incorporate stone and brush extending into the base flow to promote
roughness, cover and habitat diversity;
• A 40 foot wide floodplain bench planted in dozens of native riparian trees and shrubs will
be constructed between the restored river bank and the berm in order to provide shade on
the water and improve terrestrial habitats;
• Per a request from the NC Wildlife Resources Commission, large rock will be placed in the
river bed to provide additional aquatic habitat diversity, specifically for eastern
hellbenders;
• While removal of all trees from the existing berm would be preferred for berm stability, the
number of trees to be removed was reduced from the initial plan of several dozen to 17
(mostly black walnuts) and mature sycamores and buckeyes will be protected;
• A staged coffer dam flow diversion will be used to divert river flow around all in -stream
work areas (the flow rate of the river is too large to operate an effective pump -around);
• The contractor will be required to mobilize all equipment and materials necessary for the
project before beginning any work in the river or on the bank;
• Silt fences will be installed on the river side of all temporary stockpiles;
• The contractor will be required to stage his work such that disturbed areas along the river
bank will be stabilized with seeding, mulch and erosion control matting (as applicable)
prior to the end of each work day; and
• In -stream work will be scheduled to take place during periods of low flow and the
contractor will be required to stay abreast of daily weather forecasts.

In addition to the above measures, the Applicants have committed to working with the FWS
and NCWRC to perform a mussel relocation prior to disturbing activities in the Cane River.
HWE will give FWS and WRC at least two weeks notice prior to beginning their operation in
the Cane River. Biologists from the two agencies will remove Appalachian elktoe from the
areas where rock vanes will be placed to minimize the number of individuals killed by
placement of material in the river. Individuals found during the relocation effort will be moved
to a suitable location within the action area.
STATUS OFTHE SPECIES
Appalachian elktoe (Alasmidonta ravaneliana)
Status: Endangered
Family: Unionidae
Listed: November 23, 1994. The Appalachian elktoe is a freshwater mussel endemic to the Blue
Ridge Physiographic Province of Western North Carolina. This species exists in several small
populations in the tributaries of the Little Tennessee River and French Broad River portions of the
Upper Tennessee River Watershed. Appalachian elktoe is sensitive to alteration of chemical and
physical habitat parameters within their habitat. These changes can result from alteration of the
upland habitat within their watershed by activities such as deforestation, agriculture, rural and
urban development, construction of dams and any other activity that may affect the quality or
quantity within the receiving water. They are also affected by direct effects to the water quality by
things such as non -point source pollution, wastewater discharges, and increased turbidity from
land disturbing activities. The Appalachian elktoe has suffered substantial declines in many of its
populations within the recent past. Due to the large size of the watersheds where Appalachian
elktoe are found, it is difficult to be certain about the relative effects of individual activities, but it
appears that Appalachian elktoe is particularly sensitive to habitat alteration from large land
disturbing activities. A comprehensive description of this species and its critical habitat is
available on the FWS website at: https://ecos.fws. og v/ecp0/profile/speciesProfile?spcode=FO1J.
ENVIRONMENTAL BASELINE
Under section 7(a)(2) of the Act, when considering the effects of an action on federally listed
species, we are required to take into consideration the environmental baseline. The
environmental baseline includes past and ongoing natural factors and past and present impacts
from all Federal, state, or private actions and other activities in the action area (50 CFR
402.02), including Federal actions in the area that have already undergone section 7
consultation and the impacts from state or private actions that are contemporaneous with the
consultation in progress. The environmental baseline for this Opinion considers all projects
approved prior to the initiation of formal consultation.
The action area is adjacent to the Cane River Park, a Yancey County -owned sports complex
occupying roughly 2 acres along the Cane River. The adjacent land uses are rural and agricultural.
Prior to construction of the park, the land was in active agriculture and was protected by a
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levee/berm intended to keep rising waters of the Cane River out of the property. During unusually
high waters experienced due to Hurricane Florence 2018, a portion of the berm was washed away
and allowed the river to reroute a portion of its channel through the park.
The action area of the proposed project is adjacent to a long-term restoration site for the
Appalachian elktoe. In 2008, a toxic release from the nearby Burnsville Wastewater Treatment
Plant (WWTP) caused a fish kill and coincided with the loss of most of the Appalachian elktoe
from the Cane River. In 2012, biologists from the NCWRC and FWS began a restoration program
intended to re-establish Appalachian elktoe in the Cane River. Since that time, the restoration
effort has led to the release of over 32,000 juvenile Appalachian elktoe that were raised in the
NCWRC Aquatic Conservation Hatchery in Marion NC. The primary restoration area is adjacent
to the Cane River Park in the area of the proposed bank restoration. Recent surveys by NCWRC
biologists were able to determine that Appalachian elktoe are still present at this site, but due to the
difficulty of finding mussels in their natural habitat, it is presently unknown how many may be
present in the area of immediate disturbance. Due to the recent instability of the river bed within
the area to be repaired, it is likely that this area has not been stable long enough to provide suitable
habitat for Appalachian elktoe, but areas adjacent to the berm breach are likely to provide suitable
habitat.
In January 2020 the WWTP suffered another failure related to a leaking holding tank. Since that
time, the WWTP has been operating at or above capacity while a new holding tank is being built
resulting in the discharge of minimally treated sewage being discharged during times of high flow
due to rain events. Due to a water contact advisory issued by NC health and water quality
agencies, and the ongoing quarantine due to DOVID-19, we have been unable to thoroughly
determine the status of Appalachian elktoe in the action area at the time of this writing.
EFFECTS OF THE ACTION
Under section 7(a)(2) of the Act, "effects of the action" refers to the consequences, both direct
and indirect, of an action on the species or critical habitat. The effects of the proposed action
are added to the environmental baseline to determine the future baseline, which serves as the
basis for the determination in this Opinion. Should the effects of the Federal action result in a
situation that would jeopardize the continued existence of the species, we may propose
reasonable and prudent alternatives that the Federal agency can take to avoid a violation of
section 7(a)(2).
Repair of the bank/berm will require the excavation of large amounts of material out of the stream bed.
As stated earlier, it is unknown at present if the area of excavation is occupied by Appalachian elktoe.
A mussel relocation will be performed prior to the initiation of in -water excavation in an attempt to
salvage any animals that may be present in this area. Due to the recent flood damage and the unstable
nature of the excavated area, it is possible that the area is not suitable for Appalachian elktoe and that
none will be found. Based on previous surveys of this area, and knowledge about the density of
Appalachian elktoe in this area, and the small area proposed to be excavated, it is reasonable to assume
that only a small number of Appalachian elktoe would be present in the area of direct effects. We
estimate between 0-10 individuals would need to be moved out of harm's way. An additional concern
7

is the well-being of the Appalachian elktoe known to be present in the areas adjacent to the excavation
site. The Applicants have proposed to isolate the work area from the rest of the river by using concrete
barriers placed in the rivers. The work area will not be dewatered, so turbidity is still likely to be
noticeable around and downstream of the work area, but the concrete barrier should protect the work
area from high flows that could threaten the unstable new construction. We believe that the proposed
conservation measures make it unlikely that this increased turbidity will cause a lasting effect on the
population in the Cane River, but could cause short term effects to individuals close to the limits of
disturbance. Activities in the upland portion of this project are unlikely to affect the river due to
adequate erosion control and best management practices. The stabilization of the river is likely to
create long term beneficial effects related to the habitat stability in this area. Generally, stream bank
stabilization efforts are a trade off where short term negative effects of construction are offset by the
improved habitat stability provided by the stable bank structures. In order to improve the long-term
beneficial effects of the project, the Applicants have agreed to increase the habitat suitability of the area
around the newly constructed bank by placing large rocks in the channel. Large rocks provide extra
stability and provide places of refuge for aquatic species. It is anticipated that species recovery efforts
will continue at this location after construction is complete.
CUMULATIVE EFFECTS
Cumulative effects are the effects of future State, tribal, local, or private actions that are reasonably
certain to occur in the action area. Future Federal actions that are unrelated to the proposed action
are not considered under these effects because they require separate consultation pursuant to ESA §7
(USFWS and NMFS 1998).
There are currently no anticipated cumulative effects for this action area.
CONCLUSION
In this Opinion, we have determined that the level of take (0-10 individual elktoe) associated
with this project is not likely to result in jeopardy to the Appalachian elktoe due to the small
area involved and the low numbers of elktoe that will be directly affected. The long-term
stabilization of the habitat is likely to provide beneficial effects by providing stable areas for
mussel recruitment and improvements in the downstream habitat due to decreased sediment
transport into the river. The proposed action will provide a long-term benefit by improving
the stability of habitat in and around the action area. The Appalachian elktoe has high
representation in the adjacent watershed, the South Toe River, which provides a source of
population expansion in the greater area. Therefore, we have determined that this proposed
action will not result in jeopardy for this species.
INCIDENTAL TAKE STATEMENT
Section 9 of the Act and Federal regulations pursuant to section 4(d) of the Act prohibit the
taking of endangered and threatened species, respectively, without special exemption. Take is
defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
attempt to engage in any such conduct. Harm is further defined to include significant habitat

modification or degradation that results in death or injury to listed species by significantly
impairing essential behavioral patterns, such as breeding, feeding, or sheltering. Harass is
defined as intentional or negligent actions that create the likelihood of injury to listed species
to such an extent as to significantly disrupt normal behavior patterns, which include, but are
not limited to, breeding, feeding, or sheltering. Incidental take is defined as take that is
incidental to, and not for the purpose of, the carrying out of an otherwise lawful activity.
Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to, and not
intended as part of, the agency action is not considered to be prohibited under the Act,
provided that such taking is in compliance with the terms and conditions of this incidental
take statement.
Amount of Take Anticipated
We anticipate that incidental take of the Appalachian elktoe will occur as a result of this
project. It is impossible for us to accurately estimate the number of Appalachian elktoe
affected, so instead we anticipate that all individuals within the area where river bed
excavation will take place will be taken by removal or by mortality. Based on site
assessments and estimates of mussel density in the Cane River we anticipate that the
number within this area will be between 2 and 10. FWS has offered to help reduce the
effect of this take by moving any easily captured Appalachian elktoe out of harm's way
and will relocate them in a suitable area nearby. Any Appalachian elktoe remaining
within the excavation area are likely to be affected by excavation or rock placement. In
areas downstream of the construction it is possible that Appalachian elktoe will be
adversely affected by a temporary increase in turbidity from the proposed action.
Effect of the Take
In this Opinion, we have determined that the level of take associated with this project is not
likely to result in jeopardy to the Appalachian elktoe due to the small area involved, and thus
low numbers of Appalachian elktoe affected, and the baseline conditions of the habitat. The
proposed action will affect a small amount of suitable habitat, but due to the beneficial habitat
improvement which should improve the suitability of habitat in and around the action area and
the small scale involved, we have determined this project will not greatly affect the Cane River
population.
Reasonable and Prudent Measures
The Service believes the following reasonable and prudent measures are necessary and
appropriate to minimize take of the Appalachian elktoe. These nondiscretionary measures
include, but are not limited to, the terms and conditions outlined in this Opinion.
• The Applicants will minimize the area of disturbance within the action area to only the area
necessary for the safe and successful implementation of the proposed action.
• The Applicants will coordinate implementation of the action with FWS so that species
biologists can assess the action area, as necessary.
9

Terms and Conditions
In order to be exempt from the prohibitions of section 9 of the Act, the Applicants must comply
with the following terms and conditions, which implement the reasonable and prudent measures
described previously and outline required reporting and/or monitoring requirements. These terms
and conditions are nondiscretionary.
Construction within the Cane River may not begin until after mussel salvage operations are
completed.
• The Applicants will provide FWS with an after -action report that describes the success of the action.
• If live Appalachian elktoe are found in material excavated out of the river bed, excavation will
stop until FWS biologists can re-evaluate the work area and relocate animals.
CONSERVATION RECOMMENDATIONS
Section 7(a)(1) of the Act directs Federal agencies to use their authorities to further the purposes of
the Act by carrying out conservation programs for the benefit of endangered and threatened
species. The following conservation recommendations are discretionary agency activities to
minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help
implement recovery plans, or to develop information.
The FWS recommends that the Applicants incorporate as much habitat diversity as possible into
the project design. Native species require diverse habitats with lots of transitional zones between
habitat types. Stream restoration projects at times create a flow that is too uniform to mimic
natural habitat. Natural habitat is generally the most diverse around natural structures that provide
a flow refuge at high water. Where possible, we recommend stream features that add diversity to
the flow of water which generally leads to habitat diversity in the stream bed over time.
REINITIATION/CLOSING STATEMENT
This concludes formal consultation on the actions outlined in your BA dated July 2, 2020. As
provided in 50 CFR 402.16, reinitiation of formal consultation is required where discretionary
Federal agency involvement or control over the action has been retained (or is authorized by law)
and if. (1) the amount or extent of incidental take is exceeded, (2) new information reveals effects
of the agency action that may affect listed species or critical habitat in a manner or to an extent not
considered in this Opinion, (3) the agency action is subsequently modified in a manner that causes
an effect to the listed species or critical habitat not considered in this Opinion, or (4) a new species
is listed or critical habitat is designated that may be affected by the action. In instances where the
amount or extent of incidental take is exceeded, any operation causing such take must cease,
pending reinitiation.
If you or your staff have any questions concerning this Opinion, please contact Mr. Jason Mays of
our staff at 828/258-3939, Ext. 42226, or me, Ext. 42223. We have assigned our Log No. 20-363
10

to this project; please refer to it in any future correspondence concerning this project.
Sincerely,
Janet Mizzi
Field Supervisor
Electronic copy to:
Mr. Andrew Bick, Headwaters Engineering, 45 Lotus Place, Asheville 28804
11

Appendix A Location Map (from PCN)
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12

Appendix B Plan Sheets (from PCN)

9 North Carolina Wildlife Resources Commission 0
Gordon Myers, Executive Director
June 15, 2020
Ms. Brandee Boggs
U.S. Army Corps of Engineers, Regulatory Branch
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006
SUBJECT: Cane River Park Stream Stabilization
Cane River, Yancey County
Dear Ms. Boggs,
Biologists with the North Carolina Wildlife Resources Commission (NCWRC) reviewed an
application to reconstruct a berm on the Cane River, impacting 410 ft of the Cane River in Yancey
County. NCWRC staff attended a site visit on May 27, 2020. Our comments on this application are
offered for your consideration under provisions of the Clean Water Act of 1977 (33 U.S.C. 466 et.
seq.) and Fish and Wildlife Coordination Act (48 Stat. 401, as amended; 16 U.S.C. 661-667d).
This project should not affect wild trout reproduction and the activities do not need to be avoided
during the trout spawning moratorium. However, the site is part of the Cane River Aquatic Habitat, a
NC Natural Heritage Program natural area rated Very High due to the richness of rare species it
supports. Appalachian Elktoe [Alasmidonta raveneliana, US and NC Endangered (E)], Eastern
Hellbender [Cryptobranchus alleganiensis, US Federal Species of Concern (FSC), NC Special
Concern (SC)], Wavy -rayed Lampmussel (Lampsilis fasciola, NC SC), and Striped Shiner (Luxilus
chrysocephalus, NC SC) are found in the Cane River in the vicinity of the project. Due to the
sensitivity of these species to fine sediments, it is essential that excellent erosion and sediment
control be maintained during the project.
The project involves the reinstallation of a berm that was washed out during a major storm event two
years ago. Up to a certain river stage, this berm prevented the river from flooding a county park,
which is set in the 100-year floodplain. The application proposes to build this berm and the river
bank back to their former footprint by installing a boulder -brush toe/geolift in the current channel and
constructing 2 additional geolifts and a 40-ft wide floodplain bench, behind which the berm would be
constructed. In addition, areas of channel aggradation would be excavated. The in -channel work
would be performed in the dry by setting coffer dams at the edge of the work area and pumping water
out of the work area, which could be up to one-third of the current channel width in some locations.
Mailing Address: Habitat Conservation • 1721 Mail Service Center • Raleigh, NC 27699-1721
Telephone: [phone] • Fax: [phone]

Cane River Park Page 2 June 15, 2020
Cane River, Yancey County
Both the bank and the 40-ft floodplain bench would be planted in native woody vegetation. The
berm would remain in herbaceous vegetation. In addition, some of the trees would be cleared on the
existing berm; however, where the berm is close to the river (upstream of the berm washout), mature
trees will remain in place.
A small pond may be filled and a playground constructed within its footprint. This pond provides
habitat for birds, amphibians, and various invertebrate species and also serves to retain stormwater.
We strongly suggest retaining it or constructing a similar feature elsewhere on the property.
We ask that the applicant reach out to Lori Williams (lori.williamsgncwildlife.org) and Luke
Etchison (Luke.etchison(cr��,ncwildlife.org) at least 3 weeks before construction begins, so that rare and
listed animals can be relocated from the project area.
We offer the following recommendations to minimize impacts to fish and wildlife resources:
1. Be vigilant with sediment and erosion control during site staging, construction, and cleanup.
Disturbed areas must be stabilized each day; this is extremely important at this site.
2. Work should be done at low flows.
3. Any erosion control matting used should be free of nylon or plastic mesh, as this type of mesh
netting frequently entangles wildlife and is slow to degrade, resulting in a hazard that may last for
years.
4. Tree removal on the berm should be limited to a few trees (primarily Black Walnut or trees that
are weak and threatening to fall) mostly on the downstream end of the project; the designer
should clearly demarcate which trees can be removed and which should be retained.
5. The existing floodplain bench should be planted with native trees and shrubs, which should be
protected from removal.
6. Any channel disturbance should be limited to that which is necessary; excavation of the channel
should be minimized as much as possible.
7. Contact Lori Williams(lori.williams(ii),ncwildlife.org) and Luke Etchison
([e-mail]) at least 3 weeks before construction begins on the South Toe
River.
Thank you for the opportunity to review and comment on this project. Please contact me at (828)
400-4223 if you have any questions about these comments.
Sincerely,
Andrea Leslie
Mountain Region Coordinator, Habitat Conservation Program
ec: Andrew Bick, Headwaters Engineering
Alea Tuttle, Clearwater Environmental
Andrew Moore, NC Division of Water Resources
Byron Hamstead, US Fish and Wildlife Service
Luke Etchison and Lori Williams, NCWRC