20050422 Ver al_Information Letter_20100524

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United States Department of the Interior
FISH AND WILDLIFE SERVICE
Asheville Field Office (q?,_ 1
160 Zillicoa Street ?0 tYq Q1Q O
Asheville, North Carolina 28801 Sr R?
May 18, 2010 ??Y y
Mr. Jay Swain, Division Engineer
Highway Division 13
North Carolina Department of Transportation
55 Orange Street
Asheville, North Carolina 28801
Dear Mr. Swain:
Subject: Follow-Up for Bridge Replacements over the Toe River (Projects B-1443 and B-2848) in
Yancey and Mitchell Counties, North Carolina, and Their Effects on the Federally
Endangered Appalachian Elktoe and Its Designated Critical Habitat
On May 6, 2010, Troy Wilson of our staff met with Mr. Roger Bryan of the North Carolina
Department of Transportation (NCDOT) and Mr. David Baker of the U.S. Army Corps of Engineers
(Corps) on the site of the subject B-1443 project to discuss our concerns with unpermitted impacts
associated with the placement of riprap at the B-1443 site and the NCDOT's failure to adhere to the
terms and conditions of our July 6, 2006, Biological Opinion (BO) upon completion of construction
activities at both project sites (B-1443 and B-2848). The Corps requested this meeting after we
communicated these concerns to both Mr. Bryan and Mr. Baker. Our concerns are based on our field
review of both project sites, our review of the Section 404 Nationwide Permit Application for
B-1443, and our subsequent determination that this type of bank stabilization had not been permitted.
In addition, we believe the measures required by the Terms and Conditions in our BO for riparian
vegetation restoration have not taken place. Specifically, we are referring to the following two items
within the Terns and Conditions section (page 35):
Riparian vegetation, especially large trees, will be maintained wherever possible. If
riparian areas are disturbed, they will be revegetated with native species as soon as
possible after construction.
Upon completion of the project the existing approach fills will be removed to natural
grade, and the area will be planted with native grasses and tree species.
The general permit issued by the Corps included special conditions that were placed in the contract
for these projects. The condition that incorporated these Terms and Conditions states the following:
All Reasonable and Prudent Measures and Terns and Conditions contained in the
July 6, 2006 U.S. Fish and Wildlife Service's Biological Opinion on the effects of the
subject bridge demolition and replacement on the federally endangered Appalachian
elktoe and its Designated Critical Habitat are hereby incorporated as conditions of
this permit. Your authorization under this Corps permit is conditional upon your
compliance with all of the mandatory Reasonable and Prudent Measures and Terns
and Conditions contained in the Biological Opinion.
Conditions Provided by Other State and Federal Resource Agencies
In addition, several conditions were provided within other state and federal resource agency
correspondence referenced in the contract that reinforce the NCDOT's responsibilities to restore the
riparian areas to native vegetation after project construction was completed. In the November 27,
2006, letter from the North Carolina Wildlife Resources Commission, concurrence for the issuance
of the Section 404 and 401 permits was given, provided that the following conditions are
implemented:
• Removal of vegetation in riparian areas should be minimized. Native trees and
shrubs should, be planted along the banks to reestablish the riparian zone and to
provide long-tern erosion control.
• Riprap placed for bank stabilization should be limited to the riverbank below the high
water mark, and vegetation should be used for stabilization above the high water
elevation.
In their letter dated December 12, 2006, the North Carolina Division of Water Quality granted
approval of a 401 Water Quality Certification with the following additional conditions:
The post-construction removal of temporary work pads will need to return the project
site to its preconstruction contours and elevations. The impacted areas shall be
revegetated with appropriate native species. Disturbed floodplains and streams
should be restored to natural geomorphic conditions.
Any riprap placed for bank stabilization should be limited to the streambank below
the high water mark, and vegetation should be used for stabilization above the high
water elevation. Riprap should not be placed in the active thalweg channel or placed
in the streambed in such a manner that precludes aquatic life passage.
Bioengineering boulders or structures should be properly designed, sized and
installed.
In their November 28, 2006, Nationwide Section 26a approval, the Tennessee Valley Authority
(TVA) required that the NCDOT agree to the following standard conditions:
Bank, shoreline, and floodplain stabilization will be permanently maintained in order
to prevent erosion, protect water quality, and preserve aquatic habitat.
• All natural stream values (including equivalent energy dissipation, elevations, and
velocities; riparian vegetation; riffle/pool sequencing; habitat suitable for fish and
other aquatic life) must be provided at all stream modification sites. This must be
accomplished using a combination of rock and bioengineering, and is not
accomplished using solid, homogenous riprap from bank to bank.
• You agree to remove demolition and construction by-products from the site for
recycling if practicable, or proper disposal, outside of the 100-year floodplain.
Appropriate BMPs [best management practices] will be used during the removal of
any abandoned roadway or structures.
• You agree.that removal of vegetation will be minimized, particularly any wood
vegetation providing shoreline/streambank stabilization.
• You agree to use vegetation (versus riprap) wherever practicable and sustainable to.
stabilize stream banks, shorelines, and adjacent areas. These areas will be stabilized
as soon as practicable, using either an appropriate seed mixture that includes an
annual (quick cover) as well as one or two perennial legumes and one or two
perennial grasses, or sod. In winter or summer, this will require initial planting of a
quick cover annual only, to be followed by subsequent establishment of the
perennials. Seed and soil will be protected as appropriate with erosion control netting
and/or mulch and provided adequate moisture. Streambank and shoreline areas will
also be permanently stabilized with native woody plants, to included trees wherever
practicable and sustainable (this vegetative prescription may be altered if dictated by
geologic structures/techniques deemed necessary by TVA).
Measures Required by the Biological Opinion and Incidental Take Statement
We believe that trying to stabilize the stream bank through the use of riprap could adversely affect
the Appalachian elktoe and its designated critical habitat. Stream banks stabilized with riprap do not
provide the wildlife habitat or water quality benefits that are usually associated with vegetated stream
banks. Riprap increases the velocity of water when it deflects off the armored bank, potentially
accelerating the erosion of stream banks downstream; scour often occurs at individual rocks, causing
the release of sediment and potentially the dislodgement of riprap. Also, riprap quickly heats up
when exposed to sunlight, resulting in the rapid discharge of heated water in the stream, which can
result in low oxygen levels.
Because the impacts associated with the placement of riprap were not permitted in the Section 404
Nationwide Permit issued by the Corps for the B-1443 project and do not adhere to the Terms and
Conditions of our BO, we request that the riprap be removed from the banks of the Toe River above
the ordinary high-water inark. Instead of using riprap to stabilize the stream bank in places where it
is removed, we recommend that the NCDOT use a high-density planting of live dormant stakes of
native riparian vegetation, such as silky dogwood, black willow, and silky willow. Intensive
plantings should be established along the bank where erosion or disturbance has occurred and should
consist of many rows of live plant stakes spaced 2 to 3 feet apart. Another treatment that can be used
along the steep stream banks, and in combination with high-density staking, is the installation of
fascines and/or brush mats. Biodegradable erosion-control matting should be used in conjunction
with appropriate seeding on disturbed soils in steep slope and riparian areas. Matting should be
secured in place with staples, stakes, or live stakes of native trees (whenever possible). The
vegetation should be monitored, and subsequent plantings should be installed when needed. We can
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provide technical assistance for these bank stabilization activities, as needed, in the form of more
specific recommendations and sources for material.
Regulations under section 7 of the Endangered Species Act of 1973, as amended (Act), outline four
general conditions for reinitiating formal consultation: (1) the amount or extent of incidental take is
exceeded; (2) new information reveals effects of the action that may affect listed species or critical
habitat in a manner or to an extent not previously considered; (3) the action is modified in a manner
causing effects to listed species or critical habitat not previously considered; (4) a new species is
listed or critical habitat is designated that may be affected by the action. We believe that the third
condition may be applicable to given the circumstances surrounding this consultation. If the NCDOT
is unable to accomplish this request, we will need to assess whether the project modifications that
were not addressed in the BO are substantial enough to necessitate the reinitiation of formal
consultation under the Act.
If there are any questions, please contact Mr. Troy Wilson of our staff at 828/258-3939, Ext. 226, or
me, Ext. 223. We have assigned our log number 4-2-02-460 to this consultation; please refer to this
number in any future correspondence concerning this matter.
Sine rely,
Brian P. Cole
Field Supervisor
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Mr. David Baker, Asheville Regulatory Field Office, U.S. Army Corps of Engineers, 151 Patton
Avenue, Room 208, Asheville, NC 28801-5006
Mr. Roger D. Bryan, Division 13 Environmental Officer, North Carolina Department of
Transportation, P.O. Box 3279, Asheville, NC 28802
Ms. Marla J. Chambers, Western NCDOT Permit Coordinator, North Carolina Wildlife Resources
Commission, 12275 Swift Road, Oakboro, NC 28129
Mr. Chris Cooper; Holston-Cherokee-Douglas Watershed Team, Tennessee Valley Authority,
3726 E. Morris Boulevard, MOC IA-MOT, Morristown, TN 37813-1270
Mr. Steve Fraley, Aquatic Non-Game Coordinator, Western Region, North Carolina Wildlife
Resources Commission, 50 Trillium Way, Clyde, NC 28721
Mr. Mike Parker, Asheville Regional Office, North Carolina Division of Water Quality,
2090 U.S. Highway 70, Swannanoa, NC 28778
Mr. Logan Williams, Natural Environment Biological Surveys Group Supervisor, North Carolina
Department of Transportation, 1598 Mail Service Center, Raleigh, NC 27699-1598
Mr. Brian Wrenn, North Carolina Division of Water Quality, Central Office, 2321 Crabtree
Boulevard, Suite 250, Raleigh, NC 27604
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