20100125 Ver 1_Application_20100216

0
STATE OF NORTH CAROLINA
BEVERLY EAVES PERDUE
GOVERNOR
ham, FF9 I ®??
"?is?sq? S ??IO O
DEPARTMENT OF TRANSPORTATION
EUGENE A. CONTI, JR.
SECRETARY-
February 9, 2010
U. S. Army Corps of Engineers
Regulatory Field Office
151 Patton Avenue, Room 208
Asheville, NC 28801-5006
ATTN: Mr. Dave Baker
NCDOT Coordinator
1001125
Subject: Application for Section 404 Nationwide Permits 12, 13, 14, and
Section 401 Water Quality Certifications for the proposed
upgrade of SR 1546 (Lovelady Road) from SR 1545 (Laurel St.) to
SR 1001 (Malcolm Blvd.) in Burke County, Federal Aid Project
No. STP-1546(8); Division 13; TIP No. R-2824
$240.00 debit WBS 345
Dear Sir:
The North Carolina Department of Transportation (NCDOT) proposes to upgrade SR 1546
(Lovelady Road), which includes the replacement of Bridge No. 110 over Hoyle Creek.
There will be 113 feet of permanent surface water impacts, 28 feet of which is bank
stabilization. Additionally, there will be 3 feet (<0.01 acre) of temporary utility impacts to
the stream from trenching associated with the installation of a water line.
Please see enclosed copies of the Pre-Construction Notification (PCN) with Stormwater
Management Plan (SMP), permit drawings, utility permit drawings, design plans, Rapanos
Forms, and Biological Opinion (BO) for the above-referenced project. An Environmental
Assessment (EA) was approved on September 23, 2002, and a Finding of No Significant
Issues (FONSI) was approved on January-15, 2003. Copies of the EA and FONSI were
distributed shortly thereafter. A Construction Consultation was completed on May 29, 2009.
Additional copies are available upon request.
This project calls for a letting date of June 1, 2010 and a review date of April 13, 2010
MAILING ADDRESS: TELEPHONE: [phone] LOCATION:
NC DEPARTMENT OF TRANSPORTATION FAX: [phone] ATLANTIC AVENUE
PROJECT DEVELOPMENT AND ENVIRONMENTAL ANALYSIS SUITE 116
1598 MAIL SERVICE CENTER WEESITE: WW.W..NCDOT.ORG RALEIGH NC 27604
RALEIGH NC 27699-1598
Comments from the North Carolina Wildlife Resources Commission (NCWRC)
will be required prior to authorization by the Corps of Engineers. By copy of this
letter and attachment, NCDOT hereby requests NCWRC review. NCDOT requests
that NCWRC forward their comments to the Corps of Engineers and the NCDOT
within 30 calendar days of receipt of this application.
A copy of this permit application will be posted on the NCDOT Website at:
http://www.ncdot.org/doh/preconstruct/pe/. If you have any questions or need additional
information, please call Bill Barrett at [phone] or via e.mail at wabarrettna,ncdot.gov.
Sincere
Gregory J. Thorpe,/PPhh.D.
Environmental Management Director, PDEA
w/attachment
Mr. Brian Wrenn, NCDWQ (5 Copies)
Ms. Marella Buncick, USFWS
Ms. Marla Chambers, NCWRC
Ms. Kathy Matthews, USEPA-Whitter, NC
w/o attachment (see website for attachments)
Dr. David Chang, P.E., Hydraulics
Mr. Victor Barbour, P.E., Project Services Unit
Mr. Greg Perfetti, P.E., Structure Design
Mr. Mark Staley, Roadside Environmental
Mr. J.J. Swain, P.E., Division Engineer
Mr. Roger Bryan, DEO
Mr. Jay Bennett, P.E., Roadway Design
Mr. Majed Alghandour, P. E., Programming and TIP
Mr. Art McMillan, P.E., Highway Design
Mr. Scott McLendon, USACE, Wilmington
Mr. Ryan White, PDEA Project Planning Engineer

Office Use Only:
Corps action ID no.
DWO project no.
Form Version 1.3 Dec 10 2008
Pre-Construction Notification (PCN) Form
A. Applicant Information
1. Processing
la. Type(s) of approval sought from the
Corps:
I

D Section 404 Permit ? Section 10 Permit
1b. Specify Nationwide Permit (NWP) number: 12 13 14 or General Permit (GP) number:
1c. Has the NWP or GP number been verified by the Corps? ? Yes ®No
1d. Type(s) of approval sought from the DWQ (check all that apply):
® 401 Water Quality Certification - Regular ? Non-404 Jurisdictional General Permit
? 401 Water Quality Certification - Express ? Riparian Buffer Authorization
le. Is this notification solely for the record
because written approval is not required? For the record only for DWQ 401
Certification:
? Yes ®No For the record only for Corps Permit:

? Yes ® No
If. Is payment into a mitigation bank or in-lieu fee program proposed for mitigation
of impacts? If so, attach the acceptance letter from mitigation bank or in-lieu
fee program. ? Yes ® No
1g. Is the project located in any of NC's twenty coastal counties. If yes, answer 1 h
below. ? Yes ®No
1 h. Is the project located within a NC DCM Area of Environmental Concern (AEC)7 ? Yes ®No
2. Project Information
2a. Name of project: Upgrade of Existing Lovelady Road (SR 1546) from Laurel Street (SR 1545) in Valdese
to Malcolm Boulevard (SR 1001) in Rutherford College.
2b. County: Burke .
2c. Nearest municipality I town: Rutherford College and Valdese
2d. Subdivision name: not applicable
2e. NCDOT only, T.I.P. or state
project no: R-2824
3. Owner Information
3a. Name(s) on Recorded Deed: North Carolina Department of Transportation
3b. Deed Book and Page No. not applicable
3c. Responsible Party (for LLC if
applicable):
not applicable
3d. Street address: 1598 Mail Service Center
3e. City, state, zip: Raleigh, NC 27699-1598
3f. Telephone no.: [phone]
3g. Fax no.: [phone]
3h. Email address: [e-mail]
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4. Applicant Information (if different from owner)
4a. Applicant is: ? Agent ? Other, specify:
4b. Name: not applicable
4c. Business name
(if applicable):
4d. Street address:
4e. City, state, zip:
4f. Telephone no.:
4g. Fax no.:
4h. Email address:
5. Agent/Consultant Information (if applicable)
5a. Name: not applicable
5b. Business name
(if applicable):
5c. Street address:
5d. City, state, zip:
5e. Telephone no.:
5f. Fax no.:
5g. Email address:
2
B. Project Information and Prior Project History
1. Property Identification
la. Property identification no. (tax PIN or parcel ID): not applicable
1b. Site coordinates (in decimal degrees): Latitude: 35.76 Longitude: - 81.55 .
(DD.DDDDDD) (-DD.DDDDDD)
1c. Property size: 18.36 acres
2. Surface Waters
2a. Name of nearest body of water (stream, river, etc.) to Hoyle Creek
proposed project:
2b. Water Quality Classification of nearest receiving water: WS-IV
2c. River basin: Catawba
3. Project Description
3a. Describe the existing conditions on the site and the general land use in the vicinity of the project at the time of this
application:
The general land use in the vicinity of the project is predominately wooded lands, with some residential and minor
commercial use.
3b. List the total estimated acreage of all existing wetlands on the property:
0
3c. List the total estimated linear feet of all existing streams (intermittent and perennial) on the property:
321... .
3d. Explain the purpose of the proposed project: -
Upgrade of existing Lovelady Road (SR 1546), from Laurel Street (SR 1545) to Malcolm Blvd (SR 1001) to improve
safety on Lovelady Road. The proposed project should reduce the potential for accidents as the travel lanes will be
wider, paved shoulders installed, and turning lanes will be provided at major intersections with a roundabout constructed
at the Carolina Mills Road / Kathy Road intersection with Lovelady Road to facilitate access to the new school that has
been constructed. Traffic analysis determined that the roundabout will reduce roadway widening, provide a safer traffic
design with fewer vehicle conflicts, help to maintain lower speeds in the school zone, and produce a higher LOS (LOS-B
vs. LOS-F).
3e. Describe the overall project in detail, including the type of equipment to be used:
As part of the upgrade to existing Lovelady Road, Bridge No. 110 will be replaced with a new bridge. The existing bridge
is 50 feet (15 meters) long and consists of a timber and steel superstructure supported by vertical mount masonry. The
new bridge will be a single span steel girder bridge 79.2 feet (24.14 meters) in length with a clear deck width of 40 feet
(12 meters). A temporary detour bridge 86.61 feet (26.4 meters) in legnth will be constructed to handle traffic flow during
bridge construction. Three (3) base ditches will be constructed and dishcarge into Hoyle Creek. Riprap will be utilized for
bank stabilization at the confluence of each ditch with Hoyle Creek. Eighty-five (85) feet of an unnamed tributary to Hoyle
Creek will be filled as part of the project, with the flow directed to one of the ditches.
4. Jurisdictional Determinations
4a. Have jurisdictional wetland or stream determinations by the
Corps or State been requested or obtained for this property /
project (including all prior phases) in the past?
®Yes ? No ? Unknown
Comments: Mike Parker w/ DWQ made site visit to assess
streams. No wetlands on project site. With this application,
we are requesting an approved JD from the USACE.
4b. If the Corps made the jurisdictional determination, what type ? preliminary ? Final
of determination was made?
4c. If yes, who delineated the jurisdictional areas? Agency/Consultant Company: NCDOT
Name (if known): Bill Barrett Other:
4d. If yes, list the dates of the Corps jurisdictional determinations or State determinations and attach documentation.
May 8, 2008
5. Project History
5a. Have permits or certifications been requested or obtained for ® Yes ? No ? Unknown
this project (including all prior phases) in the past?
5b. If yes, explain in detail according to "help file" instructions.
NCDOT submitted application dated 8-20-04 for 404 (NW-14 & NW-33) & associated 401 WQCs. Received 401 WQCs
dated 9-21-04 (DWQ Project No. 04-1398). NCDOT submitted Supplemental application dated 3-24-05 for NW-12 for
utility impacts. Project was 'shelved' before 404 permit was issued and before the WQC for the NW-12 was issued.
6. Future Project Plans
6a. Is this a phased project? ? Yes ® No
6b. If yes, explain.
4
C. Proposed Impacts Inventory
1. Impacts Summary
1a. Which sections were completed below for your project (check all that apply):
? Wetlands ® Streams - tributaries ? Buffers
? Open waters ? Pond Construction
2. Wetland Impacts
If there are wetland impacts proposed on the site, then complete this question for each wetland area impacted.
2a. 2b. 2c. 2d. 2e. 2f.
Wetland impact Type of jurisdiction
number - Type of impact Type of wetland Forested (Corps - 404, 10 Area of impact
Permanent (P) or (if known) DWQ - non404, other) (acres)
Temporary T
Site 1 ? P ? T ? Yes ? Corps
? No ? DWQ
Site 2 ? P ? T ? Yes ? Corps
? No ? DWQ
Site 3 ? P ? T ? Yes ? Corps
? No ? DWQ
Site 4 ? P ? T ? Yes ? Corps
? No ? DWQ
Site 5 ? P ? T ? Yes ? Corps
? No ? DWQ
Site 6 ? P ? T ? Yes ? Corps
? No ? DWQ
2g. Total wetland impacts X Permanent
X Temporary
2h. Comments:
3. Stream Impacts
If there are perennial or intermittent stream impacts (including temporary impacts) proposed on the site, then complete this
question for all stream sites impacted..
3a. 3b. 3c. 3d. 3e. 3f. 3g.
Stream impact Type of impact Stream name Perennial Type of Average Impact length
number -. (PER) or jurisdiction stream (linear feet)
Permanent (P) or intermittent (Corps - 404, 10 width
Temporary (T) (INT)? DWQ-non404, (feet)
other)
Site 1 ®P ? T bank Creek
Hoyle ® PER ® Corps 25 28
stabilization [I INT El DWQ
Site 2 ® P ? T fill UT to Hoyle Ck ? PER
® INT ® Corps
? DWQ 2 85
Site 3 ? P ® T trenching Hoyle Creek ® PER ® Corps 20 3
(for utility line) ? INT ? DWQ
Site 4 ? P ? T ? PER ? Corps
? INT ? DWQ
Site 5 ? P ? T ? PER ? Corps
? INT ? DWQ
Site 6 ? P ? T ? PER ? Corps
? INT ? DWQ
3h. Total stream and tributary impacts 113 LF Perm
3 LF Temp
3i. Comments: Site 1 includes three areas where riprap is to be installed as bank stabilization where ditches confluence with
Hoyle Creek. All three sites noted as Site 1 on permit drawing.
4. Open Water Impacts
If there are proposed impacts to lakes, ponds, estuaries, tributaries, sounds, the Atlantic Ocean, or any other open water of
the U.S. then individual) list all open water im acts below.
4a. 4b. 4c. 4d. 4e.
Open water Name of
impact number - waterbody Type of impact Waterbody type Area of impact (acres)
Permanent (P) or (if applicable)
Temporary T
01 ?P?T
02 ?P?T
03 ?P?T
04 ?P?T
0. Total open water impacts X Permanent
X Temporary
4g. Comments:
5. Pond or Lake Construction
If and or lake construction proposed, then complete the chart below.
5a. 5b. 5c. 5d. 5e.
Wetland Impacts (acres) Stream Impacts (feet) Upland
Pond ID Proposed use or (acres)
number purpose of pond Excavat
Flooded Filled ed Flooded Filled Excavated Flooded
P1
P2
5f. Total
5g. Comments:
5h. Is a dam high hazard permit required?
? Yes ? No If yes, permit ID no:
5i. Expected pond surface area (acres):
51. Size of:pond watershed (acres):
5k. Method of construction:
6
6. Buffer Impacts (for DWQ)
If project will impact a protected riparian buffer, then complete the chart below. If yes, then individually list all buffer
impacts below. If an impacts require mitigation, then you MUST fill out Section D of this form.
6a.
? Neuse
?Tor-Pamlico ? Other:
Project is in which protected basin? ? Catawba ? Randleman
6b. 6c. 6d. 6e. 6f. 6g.
Buffer impact
number- Reason for impact Buffer Zone 1impact Zone 2impact
Permanent (P) or Stream name mitigation (square feet) (square feet)
Temporary T required?
B1 ?P?T ?Yes
? No
S2 ?P?T ?Yes
? No
B3 ?P?T ?Yes
? No
6h. Total buffer impacts
6i. Comments:
7
D. Impact Justification and Mitigation
1. Avoidance and Minimization
la. Specifically describe measures taken to avoid or minimize the proposed impacts in designing project.
The proposed bridge spans Hoyle Creek (i.e. no bents in water) and is 9.14 meters (-30 feet) longer than the existing
bridge, and is at approximately the same grade as the existing structure. The temporary detour bridge also spans Hoyle
Creek with no bents in the water. 3:1 fill slopes will be used where practicable.
Measures to avoid and minimize impacts to the dwarf flowered heartleaf populations include the following:
• Constructing a roundabout at the Lovelady Road/Kathy Drive/Carolina Mills Road. The roundabout requires less
roadway widening and construction than another driveway entrance.
• Minimizing impacts to the occurrence at Site 9 by using expressway curb and gutter to decrease the construction
footprint by about 15 feet.
• Limiting mechanized clearing and construction access to within 5 feet beyond the slope stake lines.
• Relocating an existing utility line to the other side of the road to minimize impacts during construction and reduce future
recurring impacts of utility line maintenance.
1b. Specifically describe measures taken to avoid or minimize the proposed impacts through construction techniques.
BMPs for Construction and Maintenance Activities and BMPs for Bridge Demolition to be employed. Additionally,
construction fencing to be erected between the dwarf flowered heartleaf occurrences and the construction limits to protect
them from activities during construction.
2. Compensatory Mitigation for Impacts to Waters of the U.S. or Waters of the State
? Yes ®No
If no, explain: The NCDOT does not propose mitigation for
stream bank stabilization activities. Stabilizing the bank of a
stream does not require fill in the stream bed and, therefore,
2a. Does the project require Compensatory Mitigation for under Section 404 of the Clean Water Act, does not
impacts to Waters of the U.S. or Waters of the State? constitute Loss of Waters of the U.S. and is not subject to
compensatory mitigation. Furthermore, the proposed bank
stabilization activities are necessary to prevent erosion and
sedimentation, i.e. preventing bank destabilization, and
minimizing impacts to the environment. In correspondence
with DWQ and USACE, neither Agency will be seeking
mitigation for impacts to the UT to Hoyle Creek.
2b . If yes, mitigation is required by (check all that apply): ? DWQ ? Corps
? Mitigation bank
2c . If yes, which mitigation option will be used for this
El payment to in-lieu fee program
project?
? Permittee Responsible Mitigation
3. Complete if Using a Mitigation Bank
3a . Name of Mitigation Bank: not applicable
3b . Credits Purchased (attach receipt and letter) Type Quantity
3c. Comments:
4. Complete if Making a Payment to In-lieu Fee Program
4a. Approval letter from in-lieu fee program is attached. ? Yes
4b. Stream mitigation requested: linear feet
4c. If using stream mitigation, stream temperature: ? warm ? cool ?cold
4d. Buffer mitigation requested (DWQ only): square feet
4e. Riparian wetland mitigation requested: acres
4f. Non-riparian wetland mitigation requested: acres
4g. Coastal (tidal) wetland mitigation requested: acres
4h. Comments:
5. Complete if Using a Permittee Responsible Mitigation Plan
5a. If using a permittee responsible mitigation plan, provide a description of the proposed mitigation plan.
6. Buffer Mitigation (State Regulated Riparian Buffer Rules) -required by DWQ
6a. Will the project result in an impact within a protected riparian buffer that requires
buffer mitigation? ? Yes ? No
6b. If yes, then identify the square feet of impact to each zone of the riparian buffer that requires mitigation. Calculate the
amount of mitigation required.

Zone 6c.
Reason for impact 6d.
Total impact
(square feet)
Multiplier 6e.
Required mitigation
(square feet)
Zone 1 3 (2 for Catawba)
Zone 2 1.5
6f. Total buffer mitigation required:
6g. If buffer mitigation is required, discuss what type of mitigation is proposed (e.g., payment to private mitigation bank,
permittee responsible riparian buffer restoration, payment into an approved in-lieu fee fund).
6h . Comments:
9
E. Stormwater Management and Diffuse Flow Plan (required by DWQ)
1. Diffuse Flow Plan
la. Does the project include or is it adjacent to protected riparian buffers identified ? Yes ®No
within one of the NC Riparian Buffer Protection Rules?.
1b. If yes, then is a diffuse flow plan included? If no, explain why.
? Yes ? No
Comments: if yes, see attached permit drawings.
2. Stormwater Management Plan
2a. What is the overall percent imperviousness of this project? N/A
2b. Does this project require a Stormwater Management Plan? ® Yes ? No
2c. If this project DOES NOT require a Stormwater Management Plan, explain why:
2d. If this project DOES require a Stormwater Management Plan, then provide a brief, narrative description of the plan:
See attached permit drawings.
? Certified Local Government
2e. Who will be responsible for the review of the Stormwater Management Plan? ? DWQ Stormwater Program
? DWQ 401 Unit
3. Certified Local Government Stormwater Review
3a. In which local government's jurisdiction is this project? not applicable
? Phase II
3b. Which of the following locally-implemented stormwater management programs ? NSW
? USMP
apply (check all that apply): ? Water Supply Watershed
? Other:
3c. Has the approved Stormwater Management Plan with proof of approval been ? Yes ? No
attached?
4. DWQ Stormwater Program Review
? Coastal counties
4a. Which of the following state-implemented stormwater management programs apply ? HQW
(check all that apply): ? ORW
? Session Law 2006-246
? Other.
4b. Has the approved Stormwater Management Plan with proof of approval been
attached? ? Yes ? No
5.. DWQ 401 Unit Stormwater Review
5a. Does the Stormwater Management Plan meet the appropriate requirements? ® Yes ? No
5b. Have all of the 401 Unit submittal requirements been met? ® Yes ? No
10
F. Supplementary Information
1. Environmental Documentation (DWQ Requirement)
la. Does the project involve an expenditure of public (federal/state/local) funds or the ® Yes ? No
use of public (federal/state) land?
1b. If you answered "yes" to the above, does the project require preparation of an
environmental document pursuant to the requirements of the National or State ® Yes ? No
(North Carolina) Environmental Policy Act (NEPA/SEPA)?
1c. If you answered "yes" to the above, has the document review been finalized by the
State Clearing House? (If so, attach a copy of the NEPA or SEPA final approval
® Yes ? No
letter.)
Comments:
2. Violations (DWQ Requirement)
2a. Is the site in violation of DWQ Wetland Rules (15A NCAC 2H .0500), Isolated
Wetland Rules (15A NCAC 2H .1300), DWQ Surface Water or Wefland Standards, ? Yes ®No
or Riparian Buffer Rules (15A NCAC 2B.0200)?
2b. Is this an after-the-fact permit application? ? Yes ®No
2c. If you answered "yes" to one or both of the above questions, provide an explanation of the violation(s):
3. Cumulative Impacts (DWQ Requirement) ,
3a. Will this project (based on past and reasonably anticipated future impacts) result in ? Yes
additional development, which could impact nearby downstream water quality? ® No
3b. If you answered 'yes' to the above, submit a qualitative or quantitative cumulative impact analysis in accordance with the
most recent DWQ policy. If you answered "no," provide a short narrative description.
The project involves widening the two existing lanes and adding paved shoulders for safety. No additional lanes are to be
constructed.
4. Sewage Disposal (DWQ Requirement)
4a. Clearly detail the ultimate treatment methods and disposition (non-discharge or discharge) of wastewater generated from
the proposed project, or available capacity of the subject facility.
not applicable
11
5. Endangered Species and Designated Critical Habitat (Corps Requirement)
5a. Will this project occur in or near an area with federally protected species or ®yes E] No
habitat?
5b. Have you checked with the USFWS concerning Endangered Species Act ® Yes ? No
impacts?
El Raleigh
5c. If yes, indicate the USFWS Field Office you have contacted. ® Asheville
5d. What data sources did you use to determine whether your site would impact Endangered Species or Designated Critical
Habitat?
Two dwarf-flowered heartleaf (Hexastylis naniflora) populations have been identified and delineated on the project. A
Biological Assessment was submitted to the USFWS (Cover Letter dated April 2, 2009), and NCDOT subsequently
received a Biological Opinion (BO) from USFWS, dated November 13, 2010. The BO concluded that "it is our biological
opinion that the project as proposed is not likely to jeopardize the continued existence of the dwarf-flowered heartleaf. No
critical habitat has been designated for this species; therefore, none will be affected".
6. Essential Fish Habitat (Corps Requirement)
6a. Will this project occur in or near an area designated as essential fish habitat? ? Yes ® No
6b. What data sources did you use to determine whether your site would impact Essential Fish Habitat?
NMFS County Index
7. Historic or Prehistoric Cultural Resources (Corps Requirement)
7a. Will this project occur in or near an area that the state, federal or tribal
governments have designated as having historic or cultural preservation ? Yes ®No
status (e.g., National Historic Trust designation or properties significant in
North Carolina history and archaeology)?
7b. What data sources did you use to determine whether your site would impact historic or archeological resources?
NEPA Documentation
8. Flood Zone Designation (Corps Requirement)
8a. Will this project occur in a FEMA-designated 100-year floodplain? ? Yes ®No
8b . If yes, explain how project meets FEMA requirements:
8c. What source(s) did you use to make the floodplain determination? FEMA maps

Dr. Gregory J. Thorpe. Ph D
?? i Z 9. O
' 4 D
t
Applicant/Agent
s Printed Name
' a
e
Applic tlAgent
s Signature
(Agent's signature is valid only if an authorization letter from the applicant
is provided.)
12
APPROVED JURISDICTIONAL DETERMINATION FORM
U.S. Army Corps of Engineers
This form should be completed by following the instructions provided in Section IV of the 113 Form Instructional Guidebook.
SECTION 1: BACKGROUND INFORMATION
A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD):
B. DISTRICT OFFICE, FILE NAME, AND NUMBER:
C. PROJECT LOCATION AND BACKGROUND INFORMATION:
Statc:NC County/parish/borough: Burke City: Rutherford College
Center coordinates of site (lat/long in degree decimal format): Lat. 35.79° 8, Long. -81.55° LW.
Universal Transverse Mercator:
Name of nearest waterbody: Hoyle Creek
Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Catawba River (Lake Catawba)
Name of watershed or Hydrologic Unit Code (HUC): 03050101
® Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request.
?Q Check if other sites (e.g., offsite mitigation sites, disposal sites, etc...) are associated with this action and are recorded on a
different 1D form.
D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY):
Q Office (Desk) Determination. Date:
Q Field Determination. Date(s):
SECTION 11: SUMMARY OF FINDINGS
A. RHA SECTION 10 DETERMINATION OF JURISDICTION.
There Art. uo "navigable waters of the U.S." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the
review area. [Required)
Waters subject to the ebb and flow of the tide.
Q Waters are presently used, or have been used in the past, or maybe susceptible for use to transport interstate or foreign commerce.
Explain:
B. CWA SECTION 404 DETERMINATION OF JURISDICTION.
There Are "waters of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]
1. Waters of the U.S.
a. Indicate presence of waters of U.S. in review area (check all that apply): r
Q TNWs, including territorial seas
Q Wetlands adjacent to TNWs
® Relatively permanent waters' (RPWs) that flow directly or indirectly into TNWs
Q Non-RPWs that flow directly or indirectly into TN Ws
w Wetlands directly abutting RPWs that flow directly or indirectly into TNWs
a Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs
Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs
a Impoundments ofjurisdictional waters
Isolated (interstate or intrastate) waters, including isolated wetlands
b. Identify (estimate) size of waters of the U.S. In the review area:
Non-wetland waters: 321 linear feet: 2-25 width (ft) and/or 0.11 acres.
Wetlands: 0 acres.
c. Limits (boundaries) of jurisdiction based on: R_9_A P 19_ D1e
Elevation of established OHWM (ifknown):
2. Non-regulated waters/wetlands (check if applicable):[
® Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional.
Explain: Mike Parker with DWQ conducted JD site visit on 5/8108. Dave Baker \ USACE stated he would agree with
DWQ findings. The UT to Hoyle Creek was determined to be Intermittent from point identified (-100 LF of stream)
and ephemeral upgradient of that point.
' Boxes checked below shall be supported by completing the appropriate sections in Section III below.
' For purposes of this form, an RP W is defined as a tributary that is not a TN W and that typically flows year-round or has continuous flow at least "seasonally
(e.g., typically 3 months).
' Supporting documentation is presented in Section III.F.
SECTION III: CWA ANALYSIS
A. TNWs AND WETLANDS ADJACENT TO TNWs
The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete
Section III.A.1 and Section III.D.I. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.1 and 2
and Section III.D.1.; otherwise, see Section HLB below.
1. TNW
Identify TNW:
Summarize rationale supporting determination:
2. Wetland adjacent to TNW
Summarize rationale supporting conclusion that wetland is "adjacent": N/A.
B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY):
This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps
determine whether or not the standards for jurisdiction established under Rapaooshave been met.
The agencies will assert jurisdiction over non-navigable tributaries of TN Ws where the tributaries are "relatively permanent
waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3
months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round
(perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow,
skip to Section III.D.4.
A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and
EPA regions will include in the record any available information that documents the existence of a significant nexus between a
relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even
though a significant nexus finding is not required as a matter of law.
If the waterbody is not an ROW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the
waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must
consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for
analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is
the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.1 for
the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite
and offsite. The determination whether a significant nexus exists is determined In Section IILC below.
1. Characteristics of non-TNWs that flow directly or indirectly into TNW
(i) General Area Conditions:
Watershed size: PfC111711;
Drainage area: Average annual rainfall: inches
Average annual snowfall: inches
(ii) Physical Characteristics:
(a) Relationship with TNW:
? Tributary flows directly into TNW.
? Tributary flows through tributaries before entering TNW.
river miles from TNW.
Project waters are P,Idp a
Project waters are
ti+:kl river miles from RPW.
YM!'
Project waters are F?IdL? , aerial (straight) miles from TNW.
Project waters are PWi'ISi` aerial (straight) miles from RPW.
Project waters cross or serve as state boundaries. Explain:
Identify flow route to TNW':
Tributary stream order, if known:
' Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional features generally and in the and
West.
' Flow mute can be described by identifying, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW.
(b) General Tributary Characteristics (check all that aoolv):
Tributary is: ? Natural
? Artificial (man-made). Explain:
? Manipulated (man-altered). Explain:
_.. Tributary properties with respect to top of bank (estimate):
Average width: feet
Average depth: feet
Average side slopes: g4011HASt.
Primary tributary substrate composition (check all that apply):
? Silts ® Sands ? Concrete
? Cobbles ? Gravel ? Muck
? Bedrock ? Vegetation. Type/%cover:
? Other. Explain:
Tributary condition/stability [e.g., highly eroding, sloughing banks]. Explain: relatively stable.
Presence of run/riffle/pool complexes. Explain: none present.
Tributary geometry: #_& 'RM
Tributary gradient (approximate average slope): 5 %
(c) Flow
Tributary provides for: It7i4fifift -'I {', ot. _ _ 1
Estimate average number of flow events in review area/year: P.ftkrAslLf
Describe flow regime:
Other information on duration and volume:
Surface flow is:
Characteristics:
Subsurface flow: Explain findings:
? Dye (or other) test performed:
Tributary has (check all that apply):
? Bed and banks
? OHWM6 (check all indicators that apply):
? clear, natural line impressed on the bank
? changes in the character of soil
? shelving
? vegetation matted down, bent, or absent
? leaf litter disturbed or washed away
? sediment deposition
? water staining
? other (list):
? Discontinuous OHWM.' Explain:
If factors other than the OHWM were used to detenn
Q High Tide Line indicated by: ?
? oil or scum line along shore objects
? fine shell or debris deposits (foreshore)
? physical markings/characteristics
? tidal gauges
? other (list):
? the presence of litter and debris
? destruction of terrestrial vegetation
? the presence of wrack line
? sediment sorting
? scour
? multiple observed or predicted flow events
? abrupt change in plant community
ne lateral extent of CWA jurisdiction (check all that apply)
Mean High Water Mark indicated by:
? survey to available datum;
? physical markings;
? vegetation lines/changes in vegetation types.
(iii) Chemical Characteristics:
Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.).
Explain: water is clear with evidence of iron-oxidizing bacteria present.
Identify specific pollutants, if known:
°A natural or man-made discontinuity in the OH WM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where
the OH WM has been removed by development or agricultural practices). Where there is a break in the OH WM that is unrelated to the waterbody's flow
regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break.
Ibid.
IN) Biological Characteristics. Channel supports (check all that apply):
? Riparian corridor. Characteristics (type, average width):
? Wetland fringe. Characteristics:
? Habitat for:
? Federally Listed species. Explain findings:
? Fish/spawn areas. Explain findings:
? Other environmentally-sensitive species. Explain findings:
? Aquatic/wildlife diversity. Explain findings:
2. Characteristics of wetlands adjacent to non-TNW that flow directly or indirectly into TNW
(i) Physical Characteristics: -
(a) General Wetland Characteristics:
Properties:
Wetland size: acres
Wetland type. Explain:
Wetland quality. Explain:
Project wetlands cross or serve as state boundaries. Explain:
(b) General Flow Relationship with Non-TNW:
Flow is: ti . Explain:
Surface flow is: - it
Characteristics:
Subsurface flow: Explain findings:
? Dye (or other) test performed:
(c) Wetland Adiacencv Determination with Non-TNW:
? Directly abutting
? Not directly abutting
? Discrete wetland hydrologic connection. Explain:
? Ecological connection. Explain:
? Separated by berm/barrier. Explain:
(d) Proximity (Relationship) to TN W
Project wetlands are river miles from TNW.
Project waters are PkkL a aerial (straight) miles from TNW.
Flow is from: PFCk;?aef.
Estimate approximate location of wetland as within the k. Wl floodplain.
(ii) Chemical Characteristics:
Characterize wetland system (e.g., water color is clear, brown, oil film on surface; water quality; general watershed
characteristics; etc.). Explain:
Identify specific pollutants, if known:
(iii) Biological Characteristics. Wetland supports (check all that apply):
? Riparian buffer. Characteristics (type, average width):
? Vegetation typelpercent cover. Explain:
? Habitat for:
? Federally Listed species. Explain findings:
? Fish/spawn areas. Explain findings:
? Other environmentally-sensitive species. Explain findings:
? Aquatic/wildlife diversity. Explain findings:
3. Characteristics of all wetlands adjacent to the tributary (if any)
All wetland(s) being considered in the cumulative analysis: ME al
Approximately ( ) acres in total are being considered in the cumulative analysis.
For each wetland, specify the following:
Directly abuts? (Y/N) Size (in acres) Directly abuts? (Y/N) Size (in acres)
Summarize overall biological, chemical and physical functions being performed:
C. SIGNIFICANT NEXUS DETERMINATION
A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed
by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity
of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent
wetlands, has more than a speculative or Insubstantial effect on the chemical, physical and/or biological integrity of a TNW.
Considerations when evaluating significant nexus Include, but are not limited to the volume, duration, and frequency of the flow
of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent
wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a
tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or
outside of a floodplain is not solely determinative of significant nexus.
Draw connections between the features documented and the effects on the TNW, as identified in the Rapanos Guidance and
discussed in the Instructional Guidebook. Factors to consider include, for example:
• Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to carry pollutants or flood waters to
TN Ws, or to reduce the amount of pollutants or flood waters reaching a TNW?
• Does the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifecycle support functions for fish and
other species, such as feeding, nesting, spawning, or rearing young for species that are present in the TNW?
• Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that
support downstream fnodwebs?
Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical, chemical, or
biological integrity of the TNW?
Note: the above list of considerations is not inclusive and other functions observed or known to occur should be documented
below:
1. Significant nexus findings for non-RPW that has no adjacent wetlands and flows directly or indirectly into TNWs. Explain
findings of presence or absence of significant nexus below, based on the tributary itself, then go to Section III.D:The RPW has
intermittent flow and also carries stormwater to aTNW.
2. Significant nexus findings for non-RPW and Its adjacent wetlands, where the non-RPW flows directly or indirectly into
TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its
adjacent wetlands, then go to Section III.D:
3. Significant nexus findings for wetlands adjacent to an RPW but that do not directly abut the RPW. Explain findings of
presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to
Section III.D:
D. DETERMINATIONS OF JURISDICTIONAL FINDINGS. THE SUBJECT WATERS/WETLANDS ARE (CHECK ALL
THAT APPLY):
TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area:
Q TNWs: linear feet width (fl), Or, acres.
?Wetlands adjacent toTNWs: acres.
2. RPWs that flow directly or indirectly into TNWs.
® Tributaries of TN Ws where tributaries typically flow year-round arejurisdictional. Provide data and rationale indicating that
tributary is perennial: named stream (Hoyle Creek) on USGS topographic map (Drexel quad).
® Tributaries of TNW where tributaries have continuous flow "seasonally"(e.g., typically three months each year) are
jurisdictional. Data supporting this conclusion is provided at Section III.B. Provide rationale indicating that tributary flows
seasonally: Score of 27 on DWQ stream Form. Mike Parker w/ DWQ conducted JD site visit on 5/8/08 - determined UT to
Hoyle Creek to be Intermittent from point identified (-100 LF of stream) and ephemeral upgradient of that point (see attached
diagram).
Provide estimates for jurisdictional waters in the review area (check all that apply):
® Tributary waters: 321 linear feet 2-25 width (ft).
Other non-wetland waters: acres.
Identify type(s) of waters:
3. Non-RPWs° that flow directly or indirectly into TNWs.
Waterbody that is not a TNW or an RPW, but flows directly or indirectly into a TNW, and it has a significant nexus with a
TNW is jurisdictional. Data supporting this conclusion is provided at Section IILC.
Provide estimates for jurisdictional waters within the review area (check all that apply):
El Tributary waters: linear feet width (ft).
Other non-wetland waters: acres.
Identify type(s) of waters:
4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs.
Ott Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.
Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale
indicating that tributary is perennial in Section III.D.2, above. Provide rationale indicating that wetland is
directly abutting an RPW:
'p? Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is
seasonal in Section III.B and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly
abutting an RPW:
Provide acreage estimates for jurisdictional wetlands in the review area: acres.
5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs.
El Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent
and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional. Data supporting this
conclusion is provided at Section III.C.
Provide acreage estimates for jurisdictional wetlands in the review area: acres.
6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs.
? Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and
with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this
conclusion is provided at Section IILC.
Provide estimates for jurisdictional wetlands in the review area: acres.
7. Impoundments of jurisdictional waters.
As a general role, the impoundment of ajurisdictional tributary remains jurisdictional.
G) Demonstrate that impoundment was created from "waters of the U.S.," or
Q Demonstrate that water meets the criteria for one of the categories presented above (1-6), or
El Demonstrate that water is isolated with a nexus to commerce (see E below).
E. ISOLATED (INTERSTATE OR INTRA-STATE) WATERS, INCLUDING ISOLATED WETLANDS, THE USE,
DEGRADATION OR DESTRUCTION OF WHICH COULD AFFECT INTERSTATE COMMERCE, INCLUDING ANY
SUCH WATERS (CHECK ALL THAT APPLY):to
which are or could be used by interstate or foreign travelers for recreational or other purposes.
from which fish or shellfish are or could be taken and sold in interstate or foreign commerce.
Q which are or could be used for industrial purposes by industries in interstate commerce.
+r Interstate isolated waters. Explain:
'See Footnote # 3.
'To complete the analysis refer to the key in Section III. D.6 of the Instructional Guidebook.
10 Prior to asserting or declining CWA jurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA HQ for
review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.

Other factors. Explain:
Identify water body and summarize rationale supporting determination:
Provide estimates for jurisdictional waters in the review area (check all that apply):
O Tributary waters: linear feet width (ft).
? Other non-wetland waters: acres.
Identify type(s) of waters:
El Wetlands: acres.
F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY):
Q If potential wetlands were assessed within the review area, these areas did not meet the criteria in the 1987 Corps of Engineers
Wetland Delineation Manual and/or appropriate Regional Supplements.
Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.
? Prior to the Jan 2001 Supreme Court decision in "SWANCC," the review area would have been regulated based solely on the
"Migratory Bird Rule" (MBR).
0 Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain:
EJ Other: (explain, if not covered above):
Provide acreage estimates for non jurisdictional waters in the review area, where the sole potential basis ofjurisdiction is the MBR
factors (i.e., presence of migratory birds, presence of endangered species, use of water for irrigated agriculture), using best professional
judgment (check all that apply):
0 Non-wetland waters (i.e., rivers, streams): linear feet width (ft).
0 Lakes/ponds: acres.
El Other non-wetland waters: acres. List type of aquatic resource:
tt Wetlands: acres.
Provide acreage estimates for non-jurisdictional waters in the review area that do not meet the "Significant Nexus" standard, where such
a finding is required for jurisdiction (check all that apply):
Q Non-wetland waters (i.e., rivers, streams): linear feet, width (ft).
Lakes/ponds: acres.
Other non-wetland waters: acres. List type of aquatic resource:
Wetlands: acres.
SECTION IV: DATA SOURCES.
A. SUPPORTING DATA. Data reviewed for JD (check all that apply - checked items shall be included in case file and, where checked
and requested, appropriately reference sources below):
Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant:
® Data sheets prepared/submitted by or on behalf of the applicant/consultant.
? Office concurs with data sheeWdelineation report.
? Office does not concur with data sheets/delineation report.
?'Q Data sheets prepared by the Corps:
Corps navigable waters' study:
Q U.S. Geological Survey Hydrologic Atlas:
? USGS NHD data
? USGS 8 and 12 digit HUC maps.
® U.S. Geological Survey map(s). Cite scale & quad name: Drexel quad.
Q USDA Natural Resources Conservation Service Soil Survey. Citation:
Q National wetlands inventory map(s). Cite name:
State/Local wetland inventory map(s):
? FEMA/FIRM maps:
100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929)
Q Photographs: ? Aerial (Name & Date):
or ? Other (Name & Date):
rn Previous determination(s). File no. and date of response letter:
Q Applicable/supporting case law:
Q Applicable/supporting scientific literature:
G] Other information (please specify):
B. ADDITIONAL COMMENTS TO SUPPORT JD: Mike Parker with DWQ conducted JD site visit on 5/8/08. Dave Baker \ USACE
stated he would agree with DWQ findings. The UT to Hoyle Creek was determined to be Intermittent from point identified (-100 LF of
stream) and ephemeral upstream of that point.
.
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North Carolina Division of Water Quality - Stream Identification Form; Version 3.1
Date: _16-09- Project: 2-Z?ZLf Latitude:
Evaluator: Site: pip a Longitude:
Total Points:
Stream is at least intermittent County ?G 24C e.g. Other Quad Name:
it z 19 or perennial it z 30 ? ? • S
A. Geomorphology (Subtotal = S Absent Weak Moderate Strong
1'. Continuous bed and bank 0 1 3
2. Sinuosity 0 2 3
3. In-channel structure: riffle-pool sequence 1 2 3
4. Soil texture or stream substrate sorting 0 2 3
5. Active/relic floodplain 0 1 2 3
6. Depositional bars or benches 0> 1 2 3
7. Braided channel lJli 1 2 3
8. Recent alluvial deposits 0 2 3
9' Natural levees 0 1 2 3
10. Headcuts 2 3
11. Grade controls 0 1 1.5
12. Natural valley or drainageway 0. 0.5 1.5
13. Second or greater order channel on existing
USGS or NRCS map or other documented
evidence.
*-7j)
Yes = 3
" Man-made ditches are not rated; see discussions in manual
B. Hvdrologv (Subtotal= 3 )

14. Groundwater flow/discharge 0 1 2 3
15. Water in channel and > 48 hrs since rain, or
Water in channel - d or growing season 0 0 2 3
16. Leaflitter 1.5 _L 0.5 0
17. Sediment on plants or debris 0 1 1.5
18. Organic debris lines or piles (Wrack lines) 0 1 1.5
19. Hydric soils (redoximorphic features) present? = Yes = 1.5
C. Biology (Subtotal =
'?r
20 . Fibrous roots in channel 3 1 0
21 . Rooted plants in channel 3 Q2 1 0
22. Crayfish ® 0.5 1 1.5
23. Bivalves 1 2 3
24. Fish 0.5 1 1.5
25. Amphibians ® 0.5 1 1.5
26. Macrobenlhos (note diversity and abundance) Q 0.5 1 1.5
27. Filamentous algae; pedphyton 1 2 3
28. Iron oxidizing bacteria/fungus. 0.5 1 1.5
290. Wetland plants in streambed FAC = 0.5; FACW 0.75; OB 1.5 SAV = 2.0; Other = 0
"Items 20 and 21 focus on the presence of upland plants, Item 29 focuses on the preseZ-e-of aquatic or wetland plants. w
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North Carolina Division of Water Quality- Stream Identification Form; Version 3.1
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Date: q-l&-Qk Project: 2-2,?Zq Latitude:
Evaluator: E. 612RZ l' Site: k.l1+ Longitude:
Total Points: Other
Stream is at least intermittent County: p f?Q,?j (,.
if a 19 or perennial if2 30 Z7 1 U2« e.g. Quad Name: Y
A. Geomor holo (Subtotal = Absent Weak Moderate Strong
1'. Continuous bed and bank 0 1 2
2. Sinuosity 0 1 3
3. In-channel structure: riffle-pool sequence Q 1 2 3
4. Soil texture or stream substrate sorting 0 1 3
5. Active/relicfloodplain 0 2 3
6. Depositional bars or benches 0 2 3
7. Braided channel 01 1 2 3
8. Recent alluvial deposits 0 1 2 3
9' Natural levees 1 2 3
10. Headcuts 1 2 3
11. Grade controls 0 1 1.5
12. Natural valley or drainageway 0 1 1.5
13. Second or greater order channel on existing
USGS or NRCS map or other documented
evidence.
Yes 3
"Man-made ditches are not rated; see discussions in manual
R. Hvdrnlnnv fSrhtntal = D 1
14. Groundwater flow/discharge 0 1 51 3
15. Water in channel and > 48 hrs since rain, or
Water in channel - d or rowin season 0 1 ® 3
16. Leaflitter ® 1 0.5 0
17. Sediment on plants or debris 0 10-2p 1 1.5
18. Organic debris lines or piles (Wrack lines) 0 1 1.5
19. Hydric soils (redoximorphic features) present? No = 0 es = 1
C. Bioloav (Subtotal = K 1
20b. Fibrous roots in channel 3 2 1 0
21 . Rooted plants in channel © 2 1 0
22. Crayfish 0.5 1 1.5
23. Bivalves cOj 1 2 3
24. Fish 0.5 1 1.5
25. Amphibians m 0.5 1 1.5
26. Macrobenthos (note diversity and abundance) 0 (93) 1 1.5
27. Filamentous algae; periphyton CQ) 1 2 3
28. Iron oxidizing bacteria/fungus. 0 0.5 1 1.5
29 . Wetland plants in streambed FAC = 0.5; FACW = 0.75; OBL = 1.5 SAV = 2.0; Other = 0
Items 20 and 21 focus on the presence of upland plants. Item 29 focuses on the presence of aquatic or wedand plants.
cve,,r.. _ r 40 WWTP
Notes: (use back side of this form for additional notes.)
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"m United States Department of the
0
FISH AND WILDLIFE SERVICE
H a +"?e Asheville Field Office
160 Zillicoa Street
Asheville, North Carolina 28801
November 13, 2009
Mr. John F. Sullivan, III
Division Administrator
Federal Highway Administration
310 New Bern Avenue, Suite 410
Raleigh, North Carolina 27601
Dear Mr. Sullivan:
Subject: Proposed Upgrade of Lovelady Road, TIP No. R-2824, in Burke County, North
Carolina, and Its Effects on the Federally Threatened Dwarf-Flowered Heartleaf
This document transmits the U.S. Fish and Wildlife Service's (Service) Biological Opinion
(Opinion) based on our review of the North Carolina Department of Transportation's (NCDOT)
Biological Assessment (BA) of the effects of the subject highway improvements on the federally
threatened dwarf-flowered heartleaf (Hexastylis nanii fora) in accordance with section 7 of the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543) (Act). Your July 14, 2009,
request for formal consultation was received on July 15, 2009.
This Opinion is based on information provided in the BA, other available literature, telephone
conversations, e-mail, office files, published literature, field investigations, and other sources of
information. A complete administrative record of this consultation is on file at this office.
BIOLOGICAL OPINION
CONSULTATION HISTORY
A consultation history of this project is provided in Appendix A.
DESCRIPTION OF THE PROPOSED ACTION
The NCDOT proposes to upgrade about 1.9 miles of Lovelady Road in Burke County from
Laurel Street to Malcolm Boulevard, TIP No. R-2824. The proposed upgrade includes widening
the existing two-lane road to a standard two-lane road with 12-foot lanes, 4-foot paved shoulders,
and 8-foot usable shoulders. Bridge No. 110 over Hoyle Creek also will be replaced on the
existing alignment. Stop signs will be installed at intersections along the project, except for a
traffic signal at the Lovelady Road/Malcolm Boulevard intersection and a roundabout at the
Lovelady Road/Kathy Drive/Carolina Mills Road intersection. Previously, the NCDOT
proposed a much larger project with a new location section that would have potentially affected
nine occurrences of the federally threatened dwarf-flowered heartleaf (Hexastylis nanii fora).
The current project limits will impact two of three occurrences along the revised corridor.
Surveys conducted along the proposed corridor relocated two previously known occurrences of
the dwarf-flowered heartleaf and discovered one new occurrence (see map on page 3). Details
for these three sites are as follows:
Site 1 (EO #161) has a total of 2,754 plants;
Site 2 (EO #160) has a total of 851 plants; and
Site 9, the new occurrence, has a total of 126 plants.
There are 3,731 plants estimated in these three occurrences. About 191 plants will be directly
affected by project construction at Sites 2 and 9, and another 175 plants will be indirectly
affected by corridor construction and maintenance. Site 1 will not be affected by the
construction of this project.
Conservation Measures
Measures to avoid and minimize impacts to the dwarf-flowered heartleaf include the following:
• Constructing a roundabout at the Lovelady Road/Kathy Drive/Carolina Mills
Road. The roundabout requires less roadway widening and construction than
another driveway entrance.
• Minimizing impacts to the occurrence at Site 9 by using expressway curb and
gutter to decrease the construction footprint by about 15 feet.
• Limiting mechanized clearing and construction access to within 5 feet beyond the
slope stake lines.
• Relocating an existing utility line to the other side of the road to minimize impacts
during construction and reduce future recurring impacts of utility line
maintenance.
• Erecting construction- fencing between the dwarf-flowered heartleaf occurrences
and the construction limits to protect them from activities during construction.
• Conserving in perpetuity the unimpacted portion of Site 9 as part of the
right-of-way (ROW) and transplanting the approximately 67 plants that will be
directly impacted by project construction to the permanently protected area of the
site.
• Assisting the Service in answering questions that arose during the recent 5-year
status review for the species. Specifics of the agreement are included in
Appendix B.

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Action Area
The action area should be determined based on consideration of all direct and indirect effects of
the proposed action (50 CFR 402.2 and 402.14(h)(2)). The direct and indirect effects of the
actions and activities must be considered in 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.
The action area for R-2824 is a linear corridor beginning at Laurel Street (SR 1545) and
continuing for about 1.9 miles, terminating at Malcolm Boulevard (SR 1001) in Burke County,
North Carolina. The width of the corridor is the existing roadway, including the current ROW
and additional ROW up to 80 feet on either side of the corridor.
STATUS OF THE SPECIES AND ITS CRITICAL HABITAT
Species Description and Life History
The dwarf-flowered heartleaf is a low-growing herbaceous plant in the birthwort family
(Aristolochiaceae). Blomquist (1957) described the species in his revision of the genus
Hexastylis. The plant's heart-shaped dark green leaves are evergreen and leathery and are
supported by long thin petioles from a subsurface rhizome. Maximum height rarely exceeds
15 centimeters (6 inches). The jug-shaped flowers are usually beige to dark brown in color and
appear from mid-March to early June. The flowers are small and inconspicuous and are found
near the base of the petioles. The fruit matures from mid-May to early July (Blomquist 1957;
Gaddy 1980, 1981). The plant grows in acidic soils, usually along north-facing bluffs and
adjacent slopes and in floodplains next to streams and creek heads in the upper Piedmont Region
of North Carolina and South Carolina. It is most often found on Madison and Pacolet soils. Its
small flower distinguishes this species from other members of the genus Hexastylis.
Thrips (sucking insects) and flies are the major pollinators of most plant species in the genus
Hexastylis. As yet, the pollination method for the dwarf-flowered heartleaf is unproven, but
biologists speculate that it may be pollinated by snails and/or slugs. With most Hexastylis
species, the vectors--flies and thrips--spend most of their lives in the plant's flower tissues and
feed on pollen grains or on portions of the plant's outer skin. Once the flowers have been
fertilized, ants distribute the seeds. These ants eat the coating of the seeds and leave the seeds
near the plant site or by the ant nest. Seed germination takes place in the spring, after the seeds
have been exposed to cool temperatures.
Status and Distribution
The dwarf-flowered heartleaf was listed as a threatened species on April 14, 1989 (54 FR
14964). No critical habitat has been designated. At the time of listing, threats to the species
included residential and industrial development, conversion of its habitat to pasture or small
ponds, timber-harvesting, and cattle-grazing. At that time, the species was distributed across
24 extant populations located in Burke, Catawba, Cleveland, Lincoln, and Rutherford Counties,
North Carolina; and Cherokee, Greenville, and Spartanburg Counties, South Carolina. As of
4
2006, the combined databases of the North Carolina Natural Heritage Program (NCNHP) and the
South Carolina Department of Natural Resources' Heritage Trust Program contain records of
about 103 locations that are sufficiently geographically distinct as to be regarded as proxies for
populations of the species (Service, Draft Five-Year Review for Hexasrylis Naniflora, Asheville
Field Office, September 2006). This is roughly four times the number of populations known
when the species was federally listed as threatened in 1989. Of these populations, 76 occur in
North Carolina, and 29 occur in South Carolina. The species' known range has since expanded
to include Alexander, Caldwell, Iredell, and Polk Counties, North Carolina. Despite the
relatively large number of known sites and many that have been located since its designation as
threatened, threats identified at listing continue to affect the species; at least nine sites have been
destroyed, including five that had been discovered since listing. Many more sites have been
partially impacted or destroyed because of development, and fewer than ten sites have permanent
legal protection from habitat loss or alteration. Further, fewer than 15 percent of all known
populations have been reported to contain more than 1,000 rosettes (Service, Draft Five-Year
Review for Hexasrylis Nani/lora, September 2006).
Analysis of the Species Likely to be Affected
At a minimum, the action area contains about 3,731 dwarf-flowered heartleaf plants. Of the
total, about 191 plants will be directly impacted by project construction, and another 175 plants
could be indirectly affected by the effects of clearing and other alterations of the microclimate at
the project edges and by the invasion of nonnative plants.
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 discussion that follows is our evaluation of the factors and impacts from the activities within
the action area that make up the environmental baseline.
Status of the Species Within the Action Area
The action area contains about 3,731 dwarf-flowered heartleaf plants. About 191 plants will be
directly affected by construction. Sixty-seven of these plants will be relocated to a protected
area. Based on the survival of previously relocated dwarf-flowered heartleaf plants, mortality is
not expected to exceed 50 percent. In addition to the direct impacts of the project, about
175 plants may be impacted indirectly.
The subject project may result in the loss of less than 1/10 of 1 percent of all known individual
dwarf-flowered heartleaf plants and about 10 percent of the plants within the action area.
Factors Affecting the Species' Environment Within the Action Area
Surveys for the dwarf-flowered heartleaf have been conducted across the entire action area. No
other impacts are planned or expected beyond those described in this Opinion.
EFFECTS OF THE ACTION
Under section 7(a)(2) of the Act, "effects of the action" refers to the direct and indirect effects of
an action on the species or its critical habitat, together with the effects of other activities that are
interrelated or interdependent with that action. Under section 7 of the Act, the federal agency is
responsible for analyzing these effects. 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 violation of section 7(a)(2) of the Act. The
discussion that follows is our evaluation of the expected direct and indirect effects of the
construction of the subject project. Indirect effects are those caused by the proposed action that
will occur later but that are still reasonably certain to occur (50 CFR 402.02). We have
determined that there are no interrelated or interdependent actions apart from the action under
consideration.
Factors to be Considered
As previously stated, 191 of the estimated 3,731 dwarf-flowered heartleaf plants within the
action area will be directly affected by the proposed highway widening. An estimated
175 additional plants are expected to be impacted indirectly because of habitat changes at the
edges of the construction corridor. These areas may provide suitable habitat for the species in
the future as the canopy closes in the unmaintained portions of the ROW.
The NCDOT has agreed to permanently protect a portion of one of the on-site occurrences. This
will permanently protect over an acre of occupied habitat. They also have agreed to gather data
on a number of other sites to assist in answering questions that arose during the 5-year review for
the dwarf-flowered heartlea£
The total number of dwarf-flowered heartleaf plants throughout its known range (estimated to be
in excess of 100 populations) is not considered a limiting factor toward recovery of the species;
rather, it is the protection of populations from continued developmental threats (such as the
activities associated with this project) that is limiting the species' recovery.
Analyses of the Effects of the Action
Direct effects. The proposed project will result in direct effects to 191 dwarf-flowered heartleaf
plants and about 1 /10 of an acre of habitat in the action area. Sixty-seven of these plants will be
relocated to a permanently protected adjacent site.
Indirect effects. Indirect effects are anticipated to occur to about 175 dwarf-flowered heartleaf
plants and about 11100 of an acre of habitat. Impacts may result from the edge of the pavement
out to the cleared ROW by allowing increased sunlight to the plants that occur adjacent to areas
that are cleared. After the removal of trees, the additional sunlight would alter habitat conditions
at the immediate edge of the tree line, making the area less hospitable to the dwarf-flowered
heartleaf and potentially causing additional losses of individual plants. Although increased
sunlight has been known to result in increased flowering of dwarf-flowered heartleaf rosettes just
inside the new tree line, it is not known whether this increased flowering would result in
increased seedling recruitment or long-term changes in the number of established plants in these
locations. The removal of trees could also result in an influx of native and nonnative invasive
species, and dense understories could form from the resultant increase in sunlight. If allowed to
establish and spread into areas currently occupied by the dwarf-flowered heartleaf, these invasive
species would ultimately result in the loss of additional dwarf-flowered heartleaf plants.
Species' Response to the Proposed Action
The proposed construction activities will result in the removal of all vegetation within the impact
area and the permanent conversion of suitable habitat to the roadway and maintained shoulders.
The proposed project will result in direct impacts to an estimated 191 dwarf-flowered heartleaf
plants out of the estimated 3,731 plants in the action area. The predicted impacts will not have
appreciably negative effects on the recovery of the species.
CUMULATIVE EFFECTS
Cumulative effects include the effects of future state, tribal, local, or private actions that are
reasonably certain to occur in the action area considered in this Opinion. Future federal actions
that are unrelated to the proposed action are not considered in this section because they require a
separate consultation pursuant to section 7 of the Act (Service and National Marine Fisheries
Service 1998). There are no other state, tribal, local, or private actions reasonably certain to
occur in the action area that would affect the dwarf-flowered heartleaf.
CONCLUSION
After reviewing the current status of the dwarf-flowered heartleaf, the environmental baseline for
the action area, the effects of the proposed project, the cumulative effects, and the proposed
conservation measures, it is our biological opinion that the project as proposed is not likely to
jeopardize the continued existence of the dwarf-flowered heartleaf. No critical habitat has been
designated for this species; therefore, none will be affected.
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 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.
Sections 7(b)(4) and 7(o)(2) of the Act generally do not apply to listed plant species. However,
section 9(a)(2)(B) provides limited protection to listed plants from take to the extent that the Act
prohibits the removal and reduction to possession of federally listed endangered plants or the
malicious damage to such plants on areas under federal jurisdiction or the destruction of
endangered plants on nonfederal areas in violation of state law or regulation or in the coarse of
any violation of a state criminal trespass law. Therefore, for this Opinion, incidental take does
not apply, and an incidental take statement is not necessary.
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. Conservation recommendations are discretionary agency activities to further minimize
or avoid the adverse effects of a proposed action on listed species or critical habitat, to help
implement recovery plans, or to develop information. We request that the NCDOT implement
the following conservation recommendations:
Develop a management plan for the dwarf-flowered heartleaf conserved in the
ROW. This plan, which would require our approval, should address the
long-term conservation of all occurrences of the dwarf-flowered heartleaf on the
property and should be in place before any construction begins. A draft plan
should be submitted to us 6 months prior to the project letting date.
2. Provide general location, population, and condition information on the three
dwarf-flowered heartleaf "sub-populations" located within this project's footprint
to the NCNI-IP within 1 year of the date of this Opinion. Notify us when this
information has been provided to the NCNHP.
3. Notify us when the dwarf flowered heartleaf plants have been transplanted. This
notification should occur no later than 2 weeks after transplanting.
4. Monitor (using a qualified botanist/biologist) the relocated dwarf-flowered
heartleaf plants I year after they are relocated to determine survival.
5. Provide a written report summarizing the survival of the relocated dwarf-flowered
heartleaf plants, as well as any seemingly significant threats or management
issues, within 13 months of the completion of transplanting. This report should
be submitted to the NCNHP and us. The report should include maps and
photographs sufficient to clearly convey the general vicinity and specific location
of the conservation (transplant) area, the specific locations within the project area
in which the dwarf-flowered heartleaf occurs and is monitored, and a condition
assessment of the species and its habitat.
In order for us to be kept informed about actions that minimize or avoid adverse effects or that
benefit listed species or their habitats, we request notification of the implementation of any
conservation recommendations. This notification can be sent via e-mail to Ms. Marella Buncick
(marella_buncick @fws.gov), the lead biologist for this consultation, and Dr. Carolyn Wells
([e-mail]), the species recovery coordinator for the dwarf-flowered heardeaf.
REINITIATION/CLOSING STATEMENT
This concludes formal consultation on the action outlined in your July 14, 2009, request for
formal consultation. As provided in 50 CFR 402.16, the reinitiation of formal consultation is
required where discretionary federal agency involvement or control over an 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
that was not considered in this Opinion, or (4) a new species is listed or critical habitat is
designated that may be affected by the action.
If you have any questions or concerns about this consultation or the consultation process in
general, please feel free to contact Ms. Buncick at 828/258-3939, Ext. 237, or me, Ext. 223. In
any future correspondence concerning this project, please reference our Log Number 4-2-09-367.
Sincerely,
Z nr
Brian. Cole
Field Supervisor
cc:
Regional Director, FWS, Atlanta, GA (ES, Attention: Mr. Ken Graham)
Electronic copy:
Ms. Marla J. Chambers, Western NCDOT Permit Coordinator, North Carolina Wildlife
Resources Commission, 12275 Swift Road, Oakboro, NC 28129
Mr. Brian Wrenn, North Carolina Division of Water Quality, Central Office, 2321 Crabtree
Blvd., Suite 250, Raleigh, NC 27604
Mr. Chris Militscher, Environmental Protection Agency, 1313 Alderman Circle, Raleigh, NC
27603
Literature Cited
Blomquist, H. L. 1957. A revision of the Hexastylis of North America. Brittonia 8:255-281.
Gaddy, L. L. 1980. Status report on Hexastylis nanii lora. Prepared for the U.S. Fish and
Wildlife Service. Unpublished report. 25 pp.
------- 1981. The status of Hexastylis naniora Blomquist in North Carolina. Unpublished
report. 58 pp.
U.S. Fish and Wildlife Service and National Marine Fisheries Service. 1998. Endangered
Species Consultation Handbook - Procedures for Conducting Consultation and
Conference Activities under Section 7 of the Endangered Species Act. Washington, D.C.
10
Early consultation for segments of this project began as long ago as 1995. Initially, R-2824 was
a much longer project with improvements to an existing segment and a new location segment. In
2002, largely because of public input, the project was shortened and the new location segment
was dropped. The majority of the dwarf-flowered heartleaf plants occurred along the route of the
new location segment. In 2002, the remaining project did not have direct impacts to the
dwarf-flowered heartleaf.
03/1995 - Initial Scoping letter from NCDOT.
0411995 - FWS sends comments to NCDOT.
1996-1999 - Various comments in writing and at meetings on minimal project changes.
2001 - Project officially changed to eliminate the new location section that would have direct
impacts to dwarf-flowered heartleaf individuals.
12/2002 - PWS concurs with NLAA determination and informal consultation concludes.
2004 - Dwarf-flowered heartleaf resurvey maintains occurrences are doing well and past
determination is still valid.
06/2008 - Dwarf-flowered heartleaf resurvey located a new occurrence of the plant, now referred
to as Site 9.
07/2008 - Service participated in a field meeting to discuss possible avoidance and minimization
for the plants at site 9.
04/2009 - NCDOT personnel resurvey Site 9 and determine that all individuals surveyed are
dwarf-flowered heartleaf.
05/2009 - Service comments on draft BA and provides further informal consultation regarding
conservation measures.
07/2009 - NCDOT/FHWA submit the BA and request formal consultation.
6.2.2 5-Year Review Assistance
On March 31, 2009, USFWS proposed that NCDOT assist in answering some of
the questions and recommendations in the DFHL 5 -Year Review for sites and activities
that NCDOT has direct influence or information about. The USFWS is of the opinion
that delisting dwarf-flowered heartleaf is not warranted without additional information
and steps taken to ensure the species' long term viability (USDOI-FWS 2009b). The
NCDOT proposes to assist the agency by providing this information in the form of a data
spreadsheet for nine NCDOT projects as well as USFWS-approved conservation
management plans for those projects of this group in which either land ownership has
been or will be transferred from NCDOT or an existing landowner has entered or will
enter into a conservation easement with NCDOT. Occurrences of DFHL protected by
NCDOT that are or will be situated within NCDOT right-of-way without a change in
ownership or a conservation easement placed on the occurrence will not have a
conservation management plan and will only be depicted in the spreadsheet. The
NCDOT's TIP projects and their corresponding EO Nos. that will be documented in this
data spreadsheet are depicted below, with an asterisk (*) denoting projects that have or
will have a conservation management plan and a dagger (t) denoting projects that will
not have such a plan:
• R-2707 (Broad River Tract for US 74 Shelby Bypass) CEO Nos. 49, 50, 51, 73,
74, 149, 233, 238, 239, 240, and 241] *
• B-2119 (Murray's Mill) CEO No. 184] *
• R-2233 (US 221 Rutherfordton Bypass), pending a BO CEO No. 106]
• R-2707 (US 74 Shelby Bypass) onsite preservation areas, pending a revised
BA/BO (all or portions of EO Nos. 191, 194, 199, 200, 202, 203, 205, 208, 209,
and 213]
*/t pending any conservation easements that NCDOT may enter into
• B-3126 (Gunpowder Creek) CEO No. 77] t
• B-2923 (Little Gunpowder Creek) CEO No. 441 t
• R-2824 (Lovelady Road) onsite preservation, pending the BA/BO (undocumented
EO as of April 17, 2009, also referred to as Lovelady Road Subpopulation/Site 91
t
• R-0085 (US 321) CEO Nos. 19 and 20] t
• U-2528AA (Longview) CEO No. 321 t
Note that NCDOT has two conservation management plans either in place or in
draft fonn. The NCDOT completed a conservation management plan for R-2707 (Broad
River Tract) offsite preservation associated with the US 74 Shelby Bypass. Monitoring
efforts defined within this plan include resurveys conducted every three years beginning
in 2009 for a total of nine years (NCDOT 2006). The resurveys will include direct plant
counts on all DFHL occurrences within the Broad River Tract except those sampled with
plots, where estimates will be used to enumerate DFHL plants. Direct plant counts are to
be performed on all of EO Nos. 49, 50, 51, 74, 233, 238, 239, 240, and 241 and portions
of EO Nos. 73 (Broad River Tract Sites A and B) and 149 (Broad River Tract Site M).
Sample estimates are to be performed on the remaining portions of EO Nos. 73 (Broad
River Tract Sites II and L, which is comprised of Ll and L2) and 149 (Broad River Tract
Site N). The NCDOT also prepared a draft conservation management plan for R-2233
that will be submitted to USFWS. The R-2233 draft management plan states that
monitoring will occur at approximately one, three, and five years after transplanting
DFHL (NCDOT 2009).
In addition to the aforementioned nine projects, five other NCDOT projects will
be investigated to determine whether any DFHL plants occur within NCDOT right-of-
way. If DFHL plants are found within right-of-way, then NCDOT will monitor these
DFHL occurrences, the results of which will also be incorporated into the data
spreadsheet. The five NCDOT projects with their associated EO Nos. are the following:
• U-2307C (Hickory Eastside Thoroughfare from US 70-321 to I-40) [EO No. 31]
• U-2414A (Tate Boulevard Extension) [EO No. 30]
• NCDOT Division 12 project (SR 1115 in Caldwell County) [EO No. 158]
• NCDOT Division 12 project (SR 1473 in Caldwell County) [EO No. 162]
• NCDOT Division 12 project (SR 1519 in Cleveland County) [EO No. 1571
The NCDOT constructed U-2307C and U-2414A, incurring adverse effects to
DFHL in accordance with the provisions outlined in their respective BOs. In order to
avoid adverse effects to DFHL, NCDOT either has not constructed or only repaved all or
portions of the three Division 12 projects bulleted above. Construction let for U-2307C
was September 1995, with a construction completion date of December 1997. March
2002 was the constriction let date for U-2414A, with a construction completion date of
October 2003 (NCDOT 2004b). The NCDOT has not, and as of the date of this BA, does
not anticipate constructing the SR 1115 project. State Route 1473 was only repaved over
existing roadbed. The NCDOT Division 12 changed the original scope of the SR 1519
project so that each end of the road was repaved, leaving the middle of the project
adjacent to the DFHL occurrence unconsttucted (personal communication on April 6,
2009 with Trish Simon, NCDOT Division 12).
Every two years for no more than a six year period, the NCDOT will monitor
during the USFWS-recommended optimal survey window for DFHL all of its
occurrences associated with each of the nine NCDOT projects depicted in the first list
above as well as those TIP and/or NCDOT Division 12 projects depicted in the second
list above where DFHL plants are found within NCDOT right-of-way. Environmental
baseline data will be obtained from these occurrences before monitoring begins.
Monitoring and environmental baseline data will include both quantitative and qualitative
analyses of the occurrences. A quantitative analysis will include DFHL plant
enumerations via direct plant counts and/or sample plot estimates, delineating changes to
DFHL plant boundaries using GPS and GIS technologies, computing changes to acreages
of occurrence areas, computing DFHL plant densities for each occurrence, and estimating
changes to acreages of suitable habitat areas. Plant enumeration methodologies
employed with each occurrence will retrain consistent during the monitoring period, such
that an occurrence directly counted will always be directly counted and an occurrence
sampled with plot estimates will always be sampled in that manner. A qualitative
analysis will include estimating the population viability, phenology, and evidence of
reproduction; identifying associate species; identifying invasive, exotic species and
documenting their degree of threat; and assessing the topographic position, moisture
regime, amount of sunlight reaching DFHL plants, as well as other natural and human
threats to the species, including but not limited to stream bank erosion, all-terrain
vehicles, effects from historical herbicide applications and the lack of such applications
in the future, effects from drought or excessive precipitation, and land clearing and
draining activities. For each occurrence, the NCDOT will prepare a North Carolina
Natural Heritage Program - Endangered and Rare Plant Field Survey Form that
incorporates both types of data. It is important to note that monitoring protocols
specified within each conservation management plan may differ slightly on a case by
case basis.
In addition to collecting data for the NCNHP data sheets, DFHL population trends
will be analyzed as part of the monitoring efforts by comparing recent size estimates to
data from previous years. The NCDOT will also submit to USFWS written
documentation of the type of protection afforded to sites previously thought to be in
protective ownership, for which such information is currently lacking. This
documentation will include a map(s) depicting the parcel boundaries of the area(s)
subject to protective ownership, a field assessment and analysis of the full extent of
DFHL population at each location (including portions extending off of protected
properties, if known), and a written description of the nature of protection afforded to the
subject property (including any relevant terms and conditions). The NCDOT will make
every effort to ensure that site and species protections will remain in effect in perpetuity,
even after the recovery/de-listing of DFHL.
Population data will be gathered at DFHL transplant sites during species
monitoring efforts so that survival rates can be compared across varying sites and
transplant methods/conditions. In instances where DFHL transplants are interspersed
with, or occur in close proximity to native DFHL plants, transplants will be. enumerated
separately to allow specific assessment of their numbers and survivorship. One
transplant site currently exists at B-2923, with future transplant efforts to be conducted or
proposed to occur at R-2233 and R-2824, and potentially at the R-2707 onsite
preservation areas. In addition, the NCDOT will make a good faith effort to contact Dr.
Gillian Newberry, Herbarium Curator at the University of South Carolina-Spartanburg,
who transplanted DFHL plants from R-0085 into a site in South Carolina in order to
obtain transplant survival rates of those plants.
The NCDOT will research and provide any existing known information to
USFWS regarding NCDOT's landowner negotiations for the Lovelady Road
subpopulations/sites within EO No. 29. This information will assist other conservation
partners in securing long term protections for all or portions of this subpopulation/site.
The USFWS compiled information on DFHL sites that afford protection or have
the potential to afford protection to DFHL in its draft 5-Year Review report (USDOI-
FWS 2007). The NCDOT, as part of this BA, is assisting USFWS and NCNHP in
updating their lists and databases of DFHL occurrences and sites that afford protection or
have the potential to afford protection to the species. This updated data is found in
Tables 3, 4, and 5 of Appendix B, and represents the most accurate DFHL data that
NCDOT has as of May 8, 2009. The NCDOT will continue to provide USFWS and
NCNHP with new and/or updated information as it becomes available. Subsequent
NCDOT projects moving through ESA §7 formal consultation will also update the
species' distribution and population trend data, as required for the consultation process.
Finally, NCDOT will continue to submit to NCNHP and USFWS completed NCNHP -
Endangered and Rare Plant Field Survey Forms and updated GIS shape files of DFHL
population boundaries for each DFHL occurrence visited in order to ensure that the
respective agencies obtain the most current information of the species.
For those projects requiring conservation management plans, NCDOT will
provide those plans to USFWS by no later than two years after the date that the R-2824
BO is rendered. Environmental baseline data, written description of the nature of
protection afforded to the subject property (including any relevant terms and conditions),
and map(s) depicting the parcel boundaries of the area(s) subject to protective ownership
will also be provided to USFWS by no later than two years after the project's BO is
rendered. In order to report progress on each of the tasks above, NCDOT will submit its
first data spreadsheet to USFWS by January I, 2010, with subsequent submittals each
January I thereafter until the monitoring work is complete.
Resolution of the above actions will be used by NCDOT as part of its required
measures to offset adverse effects to DFHL on R-2824. The NCDOT also requests that
this information be used as a component of its required measures to offset adverse effects
to DF14L on R-2707 (US 74 Shelby Bypass) under that project's revised BA - currently
in preparation - and subsequent revised BO.
Page 1 of 1
Barrett, William A
From: [e-mail]
Sent: Tuesday, February 09, 2010 1:33 PM
To: Barrett, William A
Cc: [e-mail]
Subject: R-2824 BO
Bill,
Re: Biological Opinion for R-2824, Improvements to Lovelady Rd. Burke Co., NC
It was brought to my attention that on page 6 of the Biological Opinion (11/13/2009) for project R-2824 and
impacts to dwarf-flowered heartleaf (Hexastylis nanrflora) there is an error in the acres of habitat to be protected.
The acreage figure should read "more than 0.5 acres" rather than "more than 1.0 acres will be permanently
protected". This error does not affect the determination of no jeopardy for the species, nor require any further
action on your part. Please attach this note to the opinion and we will file a copy in the project file in this office.
If you have further questions or concerns, please contact me.
Marella Buncick
marella buncick
USFWS
160 Zillicoa St.
Asheville, NC 28801
828-258-3939 ext 237
People don't resist change, they resist being changed.
2/9/2010
STORMWATER MANAGEMENT PLAN
TIP No. R-2824 (33693.1.1)
Burke County
April 2009
Project Description
This project consists of 1.86 miles of widening and the replacement of Bridge #110 over Hoyle Creek on SR
1546. The existing 2 lane facility has 11' lanes. The proposed facility will improve to 2 lanes w/ 12' lanes,
4' paved shoulders within 8' useable shoulders and a center turn lane. The existing 1 @ 36'-6" bridge will
be replaced with a 1 @ 80' 54" steel girder bridge. The project is within 0.5 miles of a water supply,
watershed critical area and will require hazardous spill basins.
Project Imoluement
The project will require widening of the existing road/fill with wider lanes and the addition of wider
shoulders and guardrail. The drainage at the site consists of ephemeral drainage ditches and stormwater
systems. Hoyle Creek is within 0.5 miles of a water supply, watershed critical area and will require
hazardous spill basins.
Best Management Practices
Best Management Practices (BMPs) utilized on the project are as follows:
-Promotion of sheet flow and infiltration with grassed shoulders and grassed swales.
-No deck drains on bridge
-Two hazardous spill basins will be constructed adjacent to Hoyle Creek
Page:
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WETLAND PERMIT IMPACT SUMMARY
WETLAND IMPACTS SURFACE WP

Site
No.

Station
(From/To)

Structure
Size/Type
Permanent
Fill In
Wetlands
ac
Temp.
Fillln
Wetlands
ac
Excavation
in
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ac
Mechanized
Clearing
in Wetlands
ac Hand
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in
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ac
Permanent
SW
impacts
ac
Temp.
SW
impacts
ac
1 11+17 LT -DET- Bank Stabilization <0.01

11+24 LT -DET- <0.01

20+80 LT -L- <0.01

2 11+27 - 11+41 Base Ditch 0.03
LT -DET-

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TOTALS: 0.03
NC DEPAF
Permit Drawing WBF
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JUL 28 2008

R-2824 Utility Impact Summary DMISIOH OF WSHWUYS
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Site Station Plan View Fill in Existing Existing ocated Proposed Strear

Number
Permit
Surface
Stream
Stream Ch
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On-Site
Chann
Drawing Wat
er
Channel
Channel 7
annel
Stream
Loss Af
(Natural) Impacted Impacted Feet) Mitigation On-Sil
Acre (Feet) (Feet) No (Feel) Mitigati
Miti ation Mitigation
L- 0.001 3
The stream impact due to water line installation involves excavation of the bottom of the stream to allow installation of a proposed 12" dia
water line. Excavation will be approximately three feet wide and twenty feet in length. The excavated material will be placed back in the
proposed water line is installed.
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