20201654 Ver 1_USFWS Comments_20210401

United States Department of the Interior
FISH AND WILDLIFE SERVICE
Asheville Field Office
160 Zillicoa Street
Asheville, North Carolina 28801
April 1, 2021
Brandee Boggs
U.S. Army Corps of Engineers
Asheville Regulatory Field Office
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006
Dear Brandee Boggs:
Subject: Mulberry Farms Commercial Development; Madison County, North Carolina
The U.S. Fish and Wildlife Service (Service) has reviewed the information provided in the U.S.
Army Corps of Engineers (USACE) public notice dated March 4, 2021, wherein you solicit our
comments regarding project -mediated impacts to federally protected species. We submit the
following comments in accordance with the provisions of the Fish and Wildlife Coordination
Act, as amended (16 U.S.C. 661-667e); the National Environmental Policy Act (42 U.S.C. §4321
et seq.); and section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C.
1531-1543) (Act).
Project Description
According to the information provided, the proposed project would entail the construction of a
commercial development on approximately 448 partially forested acres near Marshall, North
Carolina. The proposed School of Wholeness and Enlightenment (SOWE) would entail the
construction and operation of 76 cabins, two school buildings, horticultural building, event
center, dining hall, gym, wholeness center, four staff houses, administrative building, roadways,
appurtenances, and several beaver dam analogue (BDA) structures resulting in impacts to 2,243
linear feet of streams (0.1622 acres) ad 0.108 acres of wetland.
The Applicant's August 28, 2020, Wildlife Biodiversity Assessment characterizes a variety of
onsite habitat types including: developed open space, abandoned agricultural fields, planted pine
plantation, successional forest, riparian areas, wetlands, and open water. Construction activities
for this project began sometime before March 25, 2021, which include significant excavation,
grading, and stockpiling of soils. The extent of tree clearing (proposed and completed) is
unknown.
Federally Protected Species
The information provided in Attachment D of the Pre -Construction Notification characterizes
habitats and species that may occupy the site. However, the information provided lacks an
effects analysis for each federally protected species known from Madison County, North
Carolina that may occur in the project's action area (50 CFR 402.02).

The following comments and guidance information below are intended to help project
proponents develop a comprehensive biological evaluation that supports prudent species
effect determinations from the action agency:
https://www.fws.gov/raleigh/species/cntylist/madison.html
https://www.fws.gov/asheville/htmis/project_review/assessment_guidance.html
https://www.fws.gov/midwest/endangered/section7/ba guide.html
Federally Protected Species — Gray bat (Myotis grisescens)
The public notice indicates that the USACE is not aware of the presence of federally protected
species within the project area. The information provided in the Applicant's Wildlife
Biodiversity Assessment provides acoustic evidence suggesting that gray bats forage onsite, but
that "there are no potential roosting sites for gray bats on the SOWE property". However, the
Applicant also states that "this report is not intended to fulfill regulatory and permitting
obligations." Based on the information provided, the Applicant's findings as they relate to
federally protected species are not definitive at this time. Please be aware that when information
provided is incomplete, imprecise, or contradictory, we must err on the side of caution for the
federally protected species. We reiterate our request for a comprehensive biological
evaluation that supports a prudent effect determination for this species.
This species is known to roost in caves, mines, bridges, culverts, dams, and buildings. If the
Applicant has not done so already, we request that the action area be systematically evaluated for
the presence of potential roosting habitat for this species. Artificial roost structures should be
inspected for bat use prior to modification or removal. We also request that the Applicant
identify and map portions of the action area that contain suitable foraging and commuting habitat
for this species. This animal primarily forages over water and nearby riparian vegetation, from
treetop level down to two meters above the ground (LaVal et al. 1977), but it has also been
documented foraging over land. Foraging of gray bats is strongly correlated with open water of
rivers, streams, lakes, reservoirs, ponds and wetlands. The bats eat a variety of flying aquatic
and terrestrial insects present along aquatic habitats. Gray bats are not known to feed in areas
along rivers or reservoirs where the forest has been cleared (LaVal et al. 1977). Forested areas
along the banks of streams and lakes serve as corridors for travel and as protective feeding cover
for newly volant young (Tuttle 1979, Brady et al. 1982, Moore et al. 2017). The Applicant's
biological evaluation should assess project -mediated effects of the action (50 CFR 402.02) to
potential roosting, forage, and commuting habitat. To this end, quantifying the extent and timing
of proposed tree clearing activities would be informative.
We encourage the Applicant to consider the following measures in the interest of avoiding and/or
minimizing impacts to this animal:
• Limit the extent of riparian tree clearing to what is unavoidable and necessary for the
expressed purpose of the project.
• Accomplish any necessary tree clearing activities outside gray bat active season (March
15 — November 15).
• Confine construction and operation activities on or adjacent to streams to a single side of
the channel to minimize loss of forage and commuting habitat for gray bat.
• Mark, delineate, and protect riparian vegetation within designated "tree -save" areas that
may provide forage and commuting habitat for gray bat.
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• Replant disturbed areas with native vegetation that may provide forage and commuting
habitat for gray bat.
• Limit any proposed night work to what is necessary for the expressed purpose of the
project and to maintain safety in active work areas.
• Orient temporary and permanent lighting away from riparian and upland habitats that
may be used for forage and commuting during the gray bat active season
• Limit the number of fixtures, hours of illumination, and light intensity to the lowest levels
necessary to maintain human health and safety.
• Use warmer colored lighting (Correlated Color Temperature <3,000K).
• Avoid the use of metal halide or mercury light fixtures.
• Use light fixtures that minimize light trespass/light spillage (BUG rating of 1-0-1 or less).
• Minimize height of outdoor lighting to reduce light trespass/light spillage (<25 feet above
lowest adjacent grade).
• Position lights to maintain dark zone corridors along riparian habitats and adjacent
uplands that may be used for forage and commuting.
Federally Protected Species — Northern long-eared bat (Myotis septentrionalis)
According to the information provided, suitable summer roosting habitat may be present in the
project area for the federally threatened northern long-eared bat (Myotis septentrionalis).
However, the final 4(d) rule for this species (effective as of February 16, 2016), exempts
incidental take of northern long-eared bat associated with activities that occur greater than 0.25
miles from a known hibernation site, and greater than 150 feet from a known, occupied maternity
roost during the pup season (June 1 — July 31). Based on the information provided, the project
(anticipated to require some amount of tree removal) would occur at a location where any
incidental take that may result from associated activities is exempt under the 4(d) rule. Although
not required, we encourage the Applicant to restrict tree clearing activities during the active
season for this species (April 1 — October 15).
Federally Protected Species — Bald Eagle (Haliaeetus leucocephalus)
The project area lies within the range of the bald eagle (Haliaeetus leucocephalus) and suitable
nesting habitat may be present onsite. The bald eagle has been removed from the federal list of
endangered and threatened species due to its recovery. However, this species is afforded legal
protection by the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) and the Migratory
Bird Treaty Act (16 U.S.C. 703-712). If they have not done so already, we request that the
Applicant evaluate the action area for bald eagle nests. If any active nests are located within the
action area, we request that project -mediated disturbance be restricted from mid -January through
July in order to prevent adverse impacts during the egg -laying period until the young fledge.
General Comments and Concerns
The installation of BDA structures has been emphasized as a significant component of the
project and has been proposed to enhance aquatic habitat onsite. The Service recognizes the
potential ecological benefits associated with creating stream and wetland complexes and does not
discount the applicability of using BDA structures to facilitate habitat creation in western North
Carolina. However, the Service is concerned that the project as proposed would not appreciably
enhance aquatic habitat onsite. Moreover, we are concerned that the primary purpose of the
BDA structures are to create amenity features for the associated commercial development and
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not to enhance aquatic habitat as proposed. Several aspects of the project design are evidence for
this concern:
1) We understand that the principal purpose of the project is to construct a commercial
development (residential education and training center).
2) The BDA design appears to be restricted in ways to accommodate the associated
commercial development, not vice versa. The BDA design elevations, lining of pond
areas with impermeable clay/sand, and the installation of a pond leveling structure would
ensure a maximum extent of inundation to protect adjacent development infrastructure.
We are concerned that these design elements are not intended to mimic natural processes
and are therefore limited in their ability to enhance aquatic habitat.
3) Design plans call for the construction of buildings immediately adjacent to streams and
wetlands. Some buildings are designed to span across streams or wetlands. We are
concerned that disturbances associated with the construction, maintenance, and operation
of these buildings over the lifetime of the project will compromise the ecological function
of adjacent streams and wetlands. Therefore, we believe the positioning buildings in
close proximity to BDA structures is poorly suited to enhance aquatic habitat.
4) The Service believes that the monitoring effort as proposed, (Attachment B of the Pre -
Construction Notification) is not intended to ensure ecological uplift of aquatic habitats.
Rather, the Applicant states that, "Monitoring results will be utilized to determine that the
project presents no deleterious downstream ecological effects." The Applicant proposes
to report rainfall, air temperature, water temperature, and photos from 22 locations once
per year for three years. The Service believes that the proposed plan is short-sighted and
inadequate to document any ecological uplift that may result from the proposed action.
The monitoring plan does not identify any measurable success criteria and lacks standard
elements such as reference reach metrics, groundwater data, herbaceous/woody stem
density, etc. The plan does not adequately address the need for adaptive management
over the lifetime of the project. The proposed plan instills little confidence that the
purpose of these BDA structures is to enhance aquatic habitat since it is not designed to
ensure or measure ecological uplift.
5) Construction activities have begun onsite. As of March 25, 2021, hundreds of cubic
yards of soil have been excavated and stockpiled adjacent to streams within the action
area. We are concerned about the Applicant's commitment to begin construction without
providing notice to this office and before section 7 consultation requirements have been
complete. Reference is made to 50 CFR 402.09 which requires that, "the Applicant shall
make no irreversible or irretrievable commitment of resources with respect to the agency
action which has the effect of foreclosing the formulation or implementation of any
reasonable and prudent alternatives which would avoid violating section 7(a)(2) of the
Endangered Species Act." We are concerned that the Applicant's commitment to begin
project construction at this time may significantly complicate the agency review process.
Section 9 of the Act and federal regulations pursuant to the section 4(d) of the Act
prohibit the taking of endangered and threatened species, respectively, without special
exemption. Please be aware that the Service cannot eliminate or reduce the Applicant's
liability for the taking of endangered and threatened species that has already occurred.
We offer the following general recommendations for the Applicant's consideration in the interest
of minimizing impacts to natural resources:
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Erosion and Sediment Control
Measures to control sediment and erosion should be installed before any ground -disturbing
activities occur. Grading and backfilling should be minimized, and existing native vegetation
should be retained (if possible) to maintain riparian cover for fish and wildlife. Disturbed areas
should be revegetated with native vegetation as soon as the project is completed. Ground
disturbance should be limited to what will be stabilized quickly, preferably by the end of the
workday. Natural fiber matting (coir) should be used for erosion control as synthetic
netting can trap animals and persist in the environment beyond its intended purpose.
A complete design manual, which provides extensive details and procedures for developing
site -specific plans to control erosion and sediment and is consistent with the requirements of the
North Carolina Sedimentation and Pollution Control Act and Administrative Rules, is available
at: http://portal.ncdenr.org/web/lr/publications
Stream Buffers
Natural, forested riparian buffers are critical to the health of aquatic ecosystems. They
accomplish the following:
1. catch and filter runoff, thereby helping to prevent nonpoint-source pollutants from
reaching streams;
2. enhance the in -stream processing of both point- and nonpoint-source pollutants;
3. act as "sponges" by absorbing runoff (which reduces the severity of floods) and by
allowing runoff to infiltrate and recharge groundwater levels (which maintains stream
flows during dry periods);
4. catch and help prevent excess woody debris from entering the stream and creating
logjams;
5. stabilize stream banks and maintain natural channel morphology;
6. provide coarse woody debris for habitat structure and most of the dissolved organic
carbon and other nutrients necessary for the aquatic food web; and
7. maintain air and water temperatures around the stream.
Forested riparian buffers (a minimum 50 feet wide along intermittent streams and 100 feet wide
along perennial streams [or the full extent of the 100-year floodplain, whichever is greater])
should be created and/or maintained along all aquatic areas. Within the watersheds of streams
supporting endangered aquatic species, we recommend undisturbed, forested buffers that are
naturally vegetated with trees, shrubs, and herbaceous vegetation and extend a minimum of
200 feet from the banks of all perennial streams and a minimum of 100 feet from the banks of all
intermittent streams, or the full extent of the 100-year floodplain, whichever is greater.)
Impervious surfaces, ditches, pipes, roads, utility lines (sewer, water, gas, transmission, etc.), and
other infrastructures that require maintained, cleared rights -of -way and/or compromise the
functions and values of the forested buffers should not occur within these riparian areas.
Floodplains
Executive Order 11988 requires federal agencies (and their designated nonfederal
representatives) to consider and protect floodplain functions. We believe the examples of
flooding in this area of North Carolina highlight the importance of avoiding the long- and
short-term impacts associated with the occupancy and modification of floodplains and that we
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should avoid any direct or indirect support of floodplain development. Therefore, we do not
believe the subject project should be built in the 100-year floodplain or in any way result in the
alteration of the 100-year floodplain.
Pollinator Habitat
Pollinators, such as most bees, some birds and bats, or other insects, including moths and
butterflies, play a crucial role in the reproduction of flowering plants and in the production of
most fruits and vegetables. Declines in wild pollinators are a result of loss, degradation, and
fragmentation of habitat and disease; while declines in honey bees has also been linked to
disease. The rusty -patched bumble bee (Bombus affinis) historically occurred in North Carolina's
Mountain and Piedmont provinces. Although not required, we encourage the Applicant to
consider our recommendations below to benefit the rusty -patched bumble bee and other
pollinators. Moreover, the creation and maintenance of pollinator habitats at this site may
increase the value of the project for the community and help reduce the spread of invasive
exotic plants. Please consider the following:
1. Sow native seed mixes in disturbed areas or in designated pollinator areas with plants
that bloom throughout the entire growing season.
2. Taller growing pollinator plant species should be planted around the periphery of the
site and anywhere on the site where mowing can be restricted during the summer
months. Taller plants, left un-mowed during the summer, would provide benefits to
pollinators, habitat to ground nesting/feeding birds, and cover for small mammals.
3. Low growing/groundcover native species should be planted in areas that need to be
maintained. This would provide benefits to pollinators while also minimizing the
amount of maintenance such as mowing and herbicide treatment. Milk weed species
are an important host plant for monarch butterflies.
4. Avoid mowing of flowering plants. Designated pollinator areas show be mow only
50% of the plant height, but no lower than 8 inches.
5. Avoid mowing outside the active season for rusty -patched bumble bee and other
pollinators (April 15 — October 15).
6. Leave slash piles, mulch piles, or loose dirt piles along woodland edges. These areas
provide nesting habitats and/or nest materials for some pollinators.
7. Avoid the use of pesticides and specifically neonicotinoids.
8. Additional information regarding plant species, seed mixes, and pollinator habitat
requirements can be provided upon request.
The Service appreciates the opportunity to provide these comments. Please contact Mr. Byron
Hamstead of our staff at [e-mail], if you have any questions. In any future
correspondence concerning this project, please reference our Log Number 4-2-21-078.
Sincerely,
- - original signed - -
Janet Mizzi
Field Supervisor
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References
Brady, J. T., T. H. Kunz, M. D. Tuttle, and D. E. Wilson. 1982. Gray bat recovery plan. U.S.
Fish and Wildlife Service, Denver, CO.
LaVal, R. K., R. L. Clawson, M. L. La Val, and W. Caire. 1977. Foraging behavior and
nocturnal activity patterns of Missouri bats, with emphasis on the endangered
species Myotis grisescens and Myotis sodalis. Journal of Mammalogy. 58:592-599.
Moore, Patrick R., T.S. Risch, D.K. Morris, and V. Rolland. 2017. Habitat use of female gray
bats assessed using aerial telemetry. Journal of Wildlife Management 81(7):1242-1253.
Tuttle, M. D. 1979. Status, causes of decline and management of endangered gray bats. Journal
of Wildlife Management. 43: 1-17.
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