20060353 Ver 1_USFWS Comments_20060502

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United States Department of the Interior
FISH AND WILDLIFE SERVICE
Raleigh Field Office
Post Office Box 33726
Raleigh, North Carolina 27636-3726
C~~-~353
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April 25, 2006 D ~~~a~~ D
MAY 2 2006
Mr. Henry Wicker
U. S. Army Corps of Engineers wS7 ~~pNCH
OENR-
Wilmington Regulatory Field Office ~W~os~No
P. O. Box 1890
Wilmington, North Carolina 28402-1890
Subject: Action ID # 200600596; Land Resources Companies, LLC, River Sea Plantation
Subdivision, Supply, Brunswick County, NC
Dear Mr. Wicker:
This letter provides the comments of the U. S. Fish and Wildlife Service (Service) on the subject
Public Notice (PN), dated March 16, 2006. The PN was received by this office on April 3, 2006,
18 days after the issue date. The PN requested comments by April 17, 2006. In order to
adequately review the environmental impacts of proposed activities described in a PN, the
Service would appreciate a more timely receipt of these notices.
Species Act (ESA) of 1973, as amended (16 U.S.C. 1531-1543).
The applicant, Land Resources Companies, LLC, has applied for a Department of the Army
(DA) permit to construct a boat ramp and other facilities along Lockwoods Folly River. The
proposed work is being considered under Regional General Permit #198000291, a
permit/processing agreement for work that has been approved pursuant to the North Carolina
Coastal Area Management Act (CAMA). These comments are submitted in accordance with the
Fish. and Wildlife Coordination Act (FWCA) (48 Stat. 401., as amended; 16 U.S.C. 661-667d).
Comments related to the FWCA are to be used in your determination of compliance with
404(b)(1) guidelines (40 CFR 230) and in your public interest review (33 CFR 320.4) in relation
to the protection of fish and wildlife resources. Additional comments are provided regarding the
District Engineer's determination of project impacts pursuant to section 7 of the Endangered
Project Area, Proposed Activities, and Anticipated Impacts
The project area, proposed work, and anticipated impacts are discussed in the Field Investigation
Report (FIR), dated, February 16, 2006, of the North Carolina Division of Coastal Management
(NCDCM). The project area is a tract of approximately 460.5 acres between NC Highway 211
and Lockwoods Folly River, south of the Town of Supply. The site has 332.78 acres of uplands
and 127.72 acres of section 404, or freshwater, wetlands. The tract has 7,140 linear feet of
riparian shoreline along the river. The project area is designated as a primary nursery area
(PNA) by the North Carolina Division of Marine Fisheries, but is not open to shellfish
harvesting.

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The applicant proposes to construct a 449-lot planned unit development (PUD) on the tract. As
part of the development, the applicant proposes to construct a community boat ramp. facility
along with a floating dock, an upland gazebo, and boardwalks with platforms. The boat ramp
would require dredging of 536 square feet (ft2) of coastal wetlands and 406 ftZ of open water in
the river. The waterward edge of the floating dock would be in water depths of 8-11 feet at mean
low water (MLW).
Two boardwalk/pier sites would be constructed over section 404 and coastal wetlands. At each
site, two six-foot-wide walkways would extend to an elevated pier which would continue
waterward to an elevated platform above mean high water at the edge of the river. The
walkways would be elevated approximately three feet above the substrate. Overall, these
structures would shade 20,712 ft2 of vegetated wetlands.
Two road crossing would be constructed within the development. The FIR indicates that the
road crossing would use pile-supporting bridges which would not require wetland fill. The
project summary does not include any wetland fill. The project narrative states that the two road
crossings and boat ramp would "impact" 0.028 of an acre (1,220 ft2) of riparian wetlands and
0.21 of an acre (9,148 ft2) ofnon-riparian wetlands. It is uncertain what riparian wetlands would
be impacted beyond the 536 ft2 to be dredged for the boat ramp.
The applicant proposes to provide compensatory mitigation through the North Carolina
Ecosystem Enhancement Program (NCEEP). Compensation would be provided for 0.21 of an
acre ofnon-riparian wetlands for the two road crossings and 0.028 of an acre of riparian
wetlands associated with construction of the boat ramp.
Federally Protected Species
The Service has reviewed available information on federally-threatened or endangered species
known to occur in Brunswick County. We have also reviewed information from the North
Carolina Natural Heritage Program (NCNHP) database which contains excellent data on the
special status species, both federal and state. This database can be accessed by topographic
quadrangle (quad) of the U. S. Geological Survey (USGS). Data from USGS quads provide the
most project-specific information. on species which should be considered in permitting this
project. The project area is located in both the Supply and Holden Beach quads. Occurrence
data of special status species within these quads can be obtained on the Internet at <
http://www.ncnhp.org/Pa~es/herita~edata.hhl~l >.
Several Federal Species of Concerns (FSC) could occur within the River Sea Plantation area.
These include the northern pine snake (Pituophis melanoleucus meloanoleucus), Carolina gopher
frog (Rana capito), and pondspice (Litsea aestivalis). A FSC is a species for which the Service
has concerns, but further biological research and field study are needed to resolve the
conservation status of these taxa. Although FSCs receive no statutory protection under the ESA,
we encourage all parties to be alert to their potential presence, and to make every reasonable
effort to conserve them if found.

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The only federally listed species likely to occur in the project area is the West Indian manatee
(Trichechus manatus), afederally-endangered mammal. While there are no current occurrence
records in either the Holden Beach or Supply quads, the species is known to occur in Brunswick
County, primary within the Atlantic Intracoastal Waterway. However, the species is known to
move up coastal rivers. The waters of the Lockwoods Folly River may provide suitable habitat
for manatees that move along the Atlantic Coast during summer months and are seasonal
transients in North Carolina, primarily from June through October. Manatees feed in water one
to two meters (3.3 -6.6 feet) deep that may support submerged aquatic vegetation. The species
moves extensively when in North Carolina waters and past occurrence records cannot be used to
precisely determine the likelihood that it will be present at a particular construction site.
Construction of the boat ramp would pose a risk to manatees in the area. To protect manatees in
North Carolina, the Service developed guidelines entitled "Precautions for General Construction
in Areas Which May Be Used by the West Indian Manatee in North Carolina." These guidelines
address all types of in-water construction, except blasting, and should produce little, if any,
additional expense. These guidelines address all types of in-water construction, except blasting,
and should produce little, if any, additional expense. The guidelines are intended mainly to
ensure that: (1) construction personnel are informed that manatees may occur in the work area;
(2) work should cease if a manatee approaches the work area; and (3) work should not resume
until the manatee leaves the work area. They also include procedures for reporting the death or
injury of a manatee. These guidelines are available on our web site at < htt :/u /nc_
es.fws.~ov/mammal/manatee gliidelines.pdf5. The risk to manatees could be reduced to an
acceptable level by the implementation of the Service's guidelines. The risk would be further
reduced by performing the work during the period of November through May.
With the inclusion of our manatee guidelines, the Service would concur with a determination by
the District Engineer that the action is not likely to adversely affect species designated as
threatened, endangered, or their designated critical habitat. The Corps' requirements of section 7
of the Endangered Species Act would be fulfilled. However, the Corps must reconsider its
obligations under section 7 of the ESA if: (1) new information reveals impacts of this identified
action that may affect listed species or critical habitat in a manner not previously considered; (2)
this action is subsequently modified in a manner which was not considered in this review; or, (3)
a new species is listed or critical habitat determined that may be affected by the identified action.
Service Concerns and Recommendations
The Service is concerned that piers built too low over marsh areas will harm the vegetation.
Docks and piers can impact wetlands indirectly by blocking sunlight and associated boat traffic
(Street et al. 2005, and references therein, p. 350,). Shading results in the loss of plant growth
and vigor beneath the dock structures. A study in South Carolina compared stem densities of
Spartina under docks with stem densities five meters (16.4 feet) away from docks (Sanger and
Holland 2002 as cited in Street et al. 2004, p. 350). This study indicated an average reduction in
stem density of 71 % under the docks. The study concluded that although shading of Spartina by
docks reduces stem density, the total impact on wetland habitat was minor. However, local
effects in areas with many docks could be significant. Street et al. (2005, p. 390-391) also note
that several studies indicate that individual docks have the potential to alter soft bottom habitat,
particularly shallow water habitat, in ways that can reduce productivity of the system as a whole.

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Benthic microalgae are an important component of primary production in soft bottom habitats
such as mudflats. These microalgae are light dependent and thus adversely affected by shading.
The structures over vegetated wetlands should be elevated sufficiently above the substrate to
prevent adverse shading impacts to vegetation, substrate, and other elements of the aquatic
environment. Support for the sufficiency of the proposed elevation would include data on the
characteristic heights of dominant plant species to be covered. There should not be an
assumption that the minimum height requirement (three feet above the substrate) is sufficient to
minimize the adverse impacts which the state regulation (15A NCAC 07H .0208(b)(6)(F)) seeks
to prevent. Such impacts could be reduced by elevating all structures to a sufficient height above
marsh vegetation and/or using decking on the structures with openings which allow the
penetration of sunlight.
The Service requests that the Coordinated Federal Position (CFP) stipulate that all structures
over coastal wetlands be at an elevation that is adequate to support the existing vegetation. This
is consistent with Special Condition i of Wilmington District's Regional General Permit
197800056 for piers and docks (effective date Marchl6, 2005) which requires docks and piers
extending over wetlands to be~ sufficiently elevated (a minimum of three feet) above the wetland
substrate to prevent total shading of vegetation, substrate, or other elements of the aquatic
environment.
The Service is concerned about any permanent loss of PNA. We recommend that the public
interest review consider an alternative to the proposed ramp. The North Carolina Wildlife
Resources Commission (NCWRC) maintains a boating access area (BAA) at the end of Sunset
Harbor Road (SR 11 I2). Information on this BAA can be obtained at
http://www.ncwildlife.org/pg05 BoatingWaterwa~s/pg5a6a am.htm >. This BAA appears to be
approximately ten miles for the project area and could provide a viable alternative for many
residents of the 449-lot subdivision. This BAA would provide easier access to the AIWW and
Lockwood Folly Inlet.
If the proposed boat ramp is found to be in the public interest, the DA permit should contain
conditions to permanently protect the remaining wetlands within the project area. While such
protection would serve as a form of compensation for the loss of PNA, the primary goal of this
measure would be to ensure that future losses do not occur as a result of numerous small actions
by individual landowners. With a project of this size it is important to consider all wetland
impacts during early planning and not allow additional wetlands losses through piecemeal
permitting over several years. Therefore, the Service recommends that any wetlands within the
development that are not impacted by the present pernlit should be protected by a permanent
conservation easement. The prohibition of future wetland impacts should be incorporated into
all relevant deeds. Such protection would be especially important for the riparian wetlands along
Lockwoods Folly River which benefit important fisheries resources. The conservation easement
should include all the prohibited and restrictive activities given in Article II of the Corps= model
conservation easement. The model easement can be seen along with the "District Preservation
Process with Models" at (<
http://www.saw.usace.anny.miUwetlands/Mitigation/Documents/conservation%20ea5ement°/,~Or
8-03.pdf >, revised in August 2003.

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The. Service acknowledges that the proposed compensatory mitigation is consistent with the July
2003 Memorandum of Agreement between the Corps and the North Carolina Department of
Environment and Natural Resources. However, it is not possible to know when or where such
compensation would be provided. Therefore, we believe it is essential to fully protect any
remaining wetlands within the River Sea Plantation area in order to benefit resources currently
on the site.
Overall, it appears that the applicant has created a large development with minimal impacts to
wetland habitat. If the wetlands not considered in this PN are permanently protected by a
conservation easement, the project described in the PN and FIR is not likely to have significant
adverse and/or irreversible effects on fish and wildlife resources. With permit conditions to
prevent future wetland losses along with reasonable measures to ensure adequate elevation of all
structures over wetlands and protect the manatee, the Service has no objection, from the
standpoint offish and wildlife under our jurisdiction, to the issuance of a DA permit for the
proposed activities.
The Service appreciates the opportunity to comment on this permit application. If you have
questions regarding these comments or wish to discuss the development of the coordinated
federal position, please contact Howard Hall at 919-856-4520, ext. 27 or by e-mail at
[e-mail] >. Please provide this office with a copy of the coordinated federal
position, if one is developed.
._,,
Sine~rely;f,, ""~"l
f,
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Peter >~ ;~~" ' amm
Ecological Services Supervisor
Street, M.W., A.S. Deaton, W.S. Chappell, and P.D. Mooreside. 2005. North Carolina Coastal
Habitat Protection Plan. North Carolina Department of Environment and Natural
Resources, Division of Marine Fisheries; Morehead City, NC. 656 pp.
cc:
Ron Sechler, NOAA Fisheries, Beaufort, NC
Fritz Rohde, NC Division of Coastal Management, Wilmington, NC
Steve Everhart, NC Wildlife Resources Commission, Wilmington, NC
Jim Gregson, NC Division of Coastal Management, Wilmington, NC
Doug Huggett, NC Division of Coastal Management, Wilmington,, NC
John Dorney, NC Division of Water Quality, Raleigh, NC