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HomeMy WebLinkAboutBridge #59 over McLendons Creek on SR 1006FISH AND WILDLIFE SERVICE Raleigh Field Office Post Office Box 33726 Raleigh, North Carolina 27636 -3726 June 20, 2013 Dale E. Beter U.S. Army Corps of Engineers 69 Darlington Ave Wilmington, North Carolina 28403 Dear Mr. Beter: This document transmits the U.S. Fish and Wildlife Service's (Service) Biological Opinion based on our review of the proposed replacement of Bridge No. 59 over McLendon's Creek on SR 1006, located in Moore County, North Carolina, and its effects on the federally endangered Cape Fear shiner (CFS, Notropis mekistocholas) in accordance with Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531- 1543). Your May 22, 2013 request for formal consultation was received on May 28, 2013. If you have any questions concerning this biological opinion, please contact Mr. Gary Jordan at (919) 856 -4520 (Ext. 32). Field Supervisor electronic copy: Ken Graham, USFWS, Atlanta, GA Sarah McRae, USFWS, Raleigh, NC Ronnie Smith, USACE, Wilmington, NC Art King, NCDOT, Aberdeen, NC Pam Williams, NCDOT, Raleigh, NC Jared Gray, NCDOT, Raleigh, NC Travis Wilson, NCWRC, Creedmoor, NC David Wainwright, NCDWQ, Raleigh, NC This Biological Opinion (BO) is based on information provided in the submitted Biological Assessment (BA) provided by the North Carolina Department of Transportation ( NCDOT), telephone conversations, emails, field investigations and other sources of information. A complete administrative record of this consultation is on file at this office. September 15, 2011 — The Service provides project scoping comments to NCDOT and requests a CFS survey at the project site. October 6, 2011 — Service staff attends an on -site field scoping meeting with NCDOT staff to discuss the potential effects to the CFS and to develop appropriate conservation measures. November 28, 2011 — NCDOT staff notify the Service that a November 22, 2011 survey revealed the presence of CFS near the project site. November 28-30,2011 — Service, NCDOT and U.S. Army Corps of Engineers (USAGE) staff have several discussions and email exchanges regarding the need for formal Section 7 consultation. January 23, 2012 — Service, NCDOT and The Catena Group staff meet to discuss development of a BA. August 20, 2012 — The Service provides comments on a draft BA from NCDOT. May 22, 2013 — The Service receives a letter from the USACE, dated May 22, 2013, with the attached final BA, requesting formal Section 7 consultation on the proposed replacement of Moore County Bridge No. 59 over McLendons Creek. The Moore County Bridge No. 59 replacement project is located at the SR 1006 (Glendon Carthage Road) crossing of McLendon's Creek in Moore County, North Carolina, approximately seven miles north of Carthage. The existing five -span, 201 feet long and 21.4 feet wide bridge will be replaced with a three -span, approximately 210 feet long and 33 feet wide bridge. The center span will be a minimum of 90 feet long and will completely span the channel. The new bridge will be placed in the same horizontal alignment, but the new structure will be approximately six feet higher than the existing structure. A small amount of existing approach fill will be removed from the floodplain. Reconstruction of the approach road will extend approximately 1395 feet north of the new bridge and 1065 feet south of the new bridge. Traffic will be detoured onto other roads during construction. Removal of the existing bridge deck over water will be performed by either saw cutting the deck and lifting slabs off, or by erecting a false deck under the bridge to catch demolition debris. Of the existing four interior bents (each consisting of two reinforced concrete columns), only one bent is located in the water under normal flow conditions. The two columns of this one bent will be removed using one of two methods. Initially, the contractor will install turbidity curtains in the creek on each side of the bent.. Using an excavator on timber crane mats, the set of columns will be pulled over and removed as a unit, down to one foot below the mud line. However, if the columns break off and leave the foundation within the creek bed, the contractor will install a casing around the remaining portion of the bent. The casing will then be dewatered, and the remaining substructure will be removed to below the mud line. All debris will then be removed and the casing pulled out. The time needed to install and remove the turbidity curtains should not exceed five days. NCDOT's Best Management Practices will be utilized during all removal activities. KITIMMLITM The action area is defined as the SR 1006 right-of-way at Moore County Bridge No. 59, beginning 1395 feet north of the bridge and extending 1065 feet south of the bridge, plus McLendons Creek for a distance of 1,312 feet (400 meters) downstream and 328 feet (100 meters) upstream of the bridge. The action area consists mainly of a maintained /disturbed roadside vegetative community, the SR 1006 pavement and bridge structure, and the McLendons Creek channel. The action area occurs in the Deep River subbasin (03- 06 -10) of the Cape Fear River Basin, as assigned by the North Carolina Department of Environment and Natural Resources, Division of Water Quality. Through most of the action area, McLendons Creek is approximately 10 -30 feet wide. Riparian hardwood forest borders along each bank within the action area. Conservation Measures Conservation measures represent actions, pledged in the project description, that the action agency will implement to minimize the effects of the proposed action and further the recovery of the species under review. Such measures should be closely related to the action and should be achievable within the authority of the action agency. Since conservation measures are part of the proposed action, their implementation is required under the terms of the consultation. The USACE and NCDOT have proposed the following conservation measures. NCDOT "Design Standards in Sensitive Watersheds" will be incorporated into the project. Specifically, the following measures will be implemented: o Erosion and sedimentation control measures, structures, and devices within a sensitive watershed shall be so planned, designed and constructed to provide protection from the runoff of the 25 -year storm which produces the maximum peak rate of runoff as calculated according to procedures in the "Erosion and Sediment Control Planning and Design Manual" or according to procedures adopted by the NCDOT. o Sediment basins within a sensitive watershed shall be designed and constructed such that the basin will have a settling efficiency of at least 70 percent for the 40 micron (0.04mm) size particle transported into the basin by the runoff of the two -year storm which produces the maximum peak rate of runoff as calculated according to procedures in the "Erosion and Sediment Control Planning and Design Manual" or according to procedures adopted by the NCDOT. o Erosion and sedimentation control measures will include the use of flocculants in appropriate areas to improve the settling of sediment particles and reduce turbidity levels in construction runoff. The use of flocculants will conform to Division of Water Quality approved product list. o Newly constructed open channels in sensitive watersheds shall be designed and constructed with side slopes no steeper than two horizontal to one vertical if a vegetative cover is used for stabilization unless soil conditions permit a steeper slope or where the slopes are stabilized by using mechanical devices, structural devices or other acceptable ditch liners. In any event, the angle for side slopes shall be sufficient to restrain accelerated erosion. o Provide ground cover sufficient to restrain erosion for any portion of land - disturbing activity in a sensitive watershed within 14 calendar days following completion of construction or development. • In Environmentally Sensitive Areas (defined as a 50 -foot buffer zone on both sides of the stream measured from the top of the stream bank), the following measures will be implemented: o The contractor may perform clearing operations, but not grubbing operations until immediately prior to beginning grading operations as described in Article 200 -1 of the Standard Specifications. Erosion control devices shall be installed immediately following the clearing operation. o Once grading operations begin in identified Environmentally Sensitive Areas, work shall progress in a continuous manner until complete. o Seeding and mulching shall be performed in accordance with Section 1660 of the Standard Specifications, and vegetative cover sufficient to restrain erosion shall be installed immediately following grade establishment. o The work covered by this section shall consist of the establishment of a vegetative cover on cut and fill slopes as grading progresses. Seeding and mulching shall be done in stages on cut and fill slopes that are greater than 20 feet in height measured along the slope, or greater than two acres in area. Each stage shall not exceed the limits stated above. • An offsite detour will be utilized, with no expected improvements to the detour route. • Bridge length will increase from 201 feet to at least 210 feet, with a 90 foot center span, resulting in no bents in the water, and an increase in the hydraulic opening. • Concrete footings and piles will be removed to one foot below the mud line. • Concrete wrapping for slope protection will be removed. • No direct discharge of deck drains over water will be allowed. • A storm water management plan will be designed and prepared by the design build team at the same time that the bridge survey report is submitted. • An in- stream work moratorium during the Cape Fear shiner spawning season (May 1 — July 31) will be observed. II. STATUS OF THE SPECIES /CRITICAL HABITAT The Cape Fear shiner (CFS, NotroPis mekistocholas) is a small (approximately two inches long) Cyprinid first described by Snelson (1971). It is endemic to the upper Cape Fear River Basin of the Central Piedmont of North Carolina. The CFS was federally listed as endangered on September 25, 1987 (Federal Register 1987). The following three critical habitat areas were designated: 1. Chatham County, NC. Approximately 4.1 miles of the Rocky River from North Carolina State Highway 902 bridge downstream to Chatham County SR 1010 bridge; 2. Chatham and Lee Counties, NC. Approximately 0.5 river mile of Bear Creek, from Chatham County SR 2156 bridge downstream to the Rocky River, then downstream in the Rocky River (approximately 4.2 river miles) to the Deep River, then downstream in the Deep River (approximately 2.6 river miles) to a point 0.3 river mile below the Moncure, North Carolina, U.S. Geological Survey Gauging Station; and, 3. Randolph and Moore Counties, NC. Approximately 1.5 miles of Fork Creek, from a point 0.1 river mile upstream of Randolph County SR 2873 bridge downstream to the Deep River then downstream approximately 4.1 river miles of the Deep River in Randolph and Moore Counties, North Carolina, to a point 2.5 river miles below Moore County SR 1456 bridge. Though Snelson (1971) described the CFS as an herbivore due to its unique intestine morphology, Pottern and Huish (1985) observed that captive CFS fed on both plant and animal material. In stomach content analysis of wild CFS, Groves (2000) found that detritus was by far the most frequently encountered material (79% of the stomachs examined), with smaller percentages of stomachs containing algae (31 %), plant material (21 %), and invertebrates (10 %), thus leading to the conclusion that CFS are omnivores. CFS are broadcast spawners, and spawning by captive and wild populations of CFS begins in early spring and can run through summer (Groves 2000). Reproductive maturity occurs after one year (Groves 2000), and captive CFS have lived for up to 7 -8 years (Groves 2004). The CFS is most often found in rocky pools and runs adjacent to riffles in wide, shallow segments of rivers with gravel, cobble and /or boulder substrates with an open forest canopy and abundant water willow (Justicia), riverweed (Podostemum), stream mosses (Fontinalis), and filamentous green algae. Adults and large juveniles may also occupy the lower reaches of some major tributary creeks, at least temporarily. The CFS may also be found in low- gradient sand - dominated rivers with minimal rock riffle habitat, albeit in lower numbers and presumably moving between more rocky sections of water. CFS are usually found in mixed schools with other shiners and usually comprise only a small fraction of total fishes caught (Pottern 2009). It is difficult to estimate the population size or to accurately assess population stability or trends due to the different sampling techniques and sampling areas over the decades (USFWS 2011). However, Pottern (2009) reviewed and summarized historical and current distribution/abundance of CFS, as shown in the table below. River Segment (including Miles 1949 -1983 1984 -1986 1987 -2006 2007 - present tributaries Haw River, Saxapahaw to 17.4 None None Rare Rare Bynum Dam Haw River, Bynum Dam to 4.7 Rare None Rare None Jordan Lake Haw River /Roberson Creek 4.9 Uncommon None None None to Jordan Lake Pool Rocky River, Siler City to 16.0 Common Rare None None Rock River H dro Rocky River, Rocky River 5.5 Common Common Common Common Hydro to Deep River Deep River, Randleman to 21.6 None None None None Coleridge Dam Deep River, Coleridge Dam 18.9 None Rare Uncommon Rare to Highfalls Dam Deep River, Highfalls to 21.9 None Rare Uncommon Common Carbonton Deep River, Carbonton to 22.0 None Uncommon Uncommon Uncommon Rocky River Deep River, Rocky River to 3.5 None Common Common Common Lockville Dam Deep River, Lockville Dam to 0.3 None Uncommon Uncommon Common US -1 Cape Fear — Deep /Haw 12.7 None None None None confluence to Buckhorn Dam Cape Fear River, Buckhorn 14.0 Uncommon Rare None None Dam to Lillin ton Cape Fear River, Lillington to 11.5 None None None Rare Erwin *Rare = average 1 to 4 per collection, Uncommon = average 5 to 15 per collection, Common = average 16 or more per collection Currently, the approximate known range of the CFS extends from the SR 1545 bridge on the Haw River in Chatham County and from Coleridge Dam on the Deep River in Randolph County downstream to just below Erwin on the Cape Fear River in Harnett County, plus major tributaries including Rocky River in Chatham County. This overall range (excluding tributary creeks) includes approximately 135 river miles of the main stems of the four rivers. The species is reasonably common only in the Deep River between Highfalls and Moncure (48 river miles) and the lower Rocky River (5 river miles). Jordan Lake and Buckhorn Dam have impounded 18 miles of the Haw, Deep and Cape Fear Rivers, rendering portions of the rivers as unsuitable habitat. The CFS is apparently very rare or possibly extirpated in the remaining 64 river miles ( Pottern 2009). In April /May 2013, 97 CFS individuals were translocated to an area of critical habitat in the Rocky River near the SR 1010 crossing (Sarah McRae, U.S. Fish and Wildlife Service, personal communication, June 2013). The success of this augmentation effort is yet unknown. The reasons for listing the CFS as endangered in 1987 were its limited distribution and therefore its susceptibility to any factor that degrades habitat or water quality in the short river reaches it inhabits — e.g. land use changes, chemical spills, wastewater discharges, impoundments, changes in stream flow, or increases in agricultural runoff (Federal Register 1987). Dam construction in the Cape Fear River Basin has probably been the most significant factor contributing to the species decline (USFWS 1988). Currently, it is believed there are three main conservation threats to the CFS: 1) alteration of water velocity and water levels due to dam construction and other physical alterations of rivers /creeks; 2) pollution from agricultural, municipal and /or commercial runoff; and 3) introduction of non - native fish that prey on the CFS (USFWS 2011). The replacement of Moore County Bridge No. 59 is likely to adversely affect the CFS. However, given the fact that the action area is more than 30 river miles upstream of the closest downstream unit of designated critical habitat, the project will have no effect on designated critical habitat. The NCDOT and USACE have determined that the project will have no effect on the federally endangered red - cockaded woodpecker (Picoides borealis), American chaffseed (Schwalbea americana) and Michaux's sumac (Rhus michauxii). The Service concurs with these "no effect" biological conclusions, and these three species will not be further addressed in this BO. IN111210 101011 , Under section 7(a)(2) of the Act, when considering the "effects of the action" on federally listed species, the Service is required to take into consideration the environmental baseline. The environmental baseline includes past and ongoing natural factors and the past and present impacts of 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 of state or private actions which are contemporaneous with the consultation in process. Status of the Species Within the Action Area The action area occurs on McLendons Creek, which is a tributary to Deep River. The CFS was only recently discovered in McLendons Creek in 2011 (Neil Medlin, NCDOT, personal communication, November 2011). McLendons Creek within the action area had been impounded by the Carbonton Dam on the Deep River until it was removed in February 2006 by Restoration Systems, LLC as part of a mitigation banking project. The previous impoundment had rendered this portion of McLendons Creek as unsuitable habitat for CFS. The removal of Carbonton Dam restored approximately 10 river miles of Deep River, as well as portions of three tributaries, including McLendons Creek (Catena Group 2010). The habitat restoration has allowed for the CFS to colonize the still- improving habitat within portions of McLendons Creek. NCDOT biologists collected the first CFS in McLendons Creek approximately 500 feet downstream of the bridge project on November 22, 2011 (Neil Medlin, NCDOT, personal communication, November 2011). The BA states that the Catena Group collected 11 CFS approximately 650 feet downstream of the bridge project on April 12, 2012. An evaluation of the habitat within the action area reveals less than optimal habitat quality (eroded and often vertical stream banks, relatively narrow channel, silt and sand present in substrate, heavy woody debris). However, much higher quality CFS habitat occurs just upstream of the action area (wider channel, open canopy, multiple riffle /runs punctuated by pools, coarse sand and gravel substrate, submerged aquatic vegetation and filamentous algae). It is presumed that the CFS were passing through lower quality habitat to reach the higher quality habitat upstream. Factors Affecting the Species Environment Within the Action Area As previously stated, the habitat within this portion of McLendons Creek is relatively new and still developing. The removal of the Carbonton Dam resulted in habitat restoration from a lentic to a lotic system, and movement to a new equilibrium is likely the most important factor affecting CFS in the action area. It is reasonable to assume that CFS will increase their use of this habitat as it develops. The action area falls within the Triassic Basin where streams tend to run dry in the summer and become small pools. Exacerbating this condition, the area has experienced some dryer than normal years since the removal of the Carbonton Dam. As such, the action area may only provide seasonal and transitory habitat. The existing bridge, especially the bent in the channel, may currently have some localized effect on CFS habitat within the action area (e.g. affecting flow characteristics). 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 critical habitat, together with the effects of other activities that are interrelated or interdependent with that action. 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 BO. Should the effects of the federal action result in a situation that would jeopardize the continued existence of the species, we may propose reasonable and prudent alternatives that the federal agency can take to avoid a violation of section 7(a)(2). The discussion that follows is our evaluation of the anticipated direct and indirect effects of the proposed project. Indirect effects are those caused by the proposed action that occur later in time but are still reasonably certain to occur (50 CFR 402.02). Factors to be Considered The habitat for CFS within the action area is less than optimal. However, since much better quality habitat occurs both upstream and downstream of the action area, it can assumed that the action area serves as an important area of transit for CFS traveling between higher quality habitat patches. Given the commonly fluctuating water levels in McLendons Creek, CFS may not utilize the action area during periods of low flow when large woody debris or other obstructions limit fish movement. Depending upon the time that the bridge replacement occurs, CFS may or may not be present within the action area. Although the contractor is anticipated to take up to six months to complete the entire project (Pam Williams, NCDOT, personal communication, August 2012), the actual in -water work to remove one bent will likely be limited to five days or less. This in -water work will be limited in scope and nature, and the use of turbidity curtains or casing /sheet piling to dewater the work area will greatly limit the species' exposure to detrimental direct effects. Given the mobility of the species during normal flow conditions, the duration and severity of disturbance from the project will likely be minimal. The work outside the channel, including substantial earth moving to raise the grade of approach roads, could potentially expose CFS habitat to detrimental effects for a longer duration if erosion control methods were inadequate or were compromised during a severe storm. However, these potential adverse effects would be limited and temporary, and perhaps indistinguishable from the effects of a large rain event. Analysis for Effects of the Action Beneficial Effects: The removal of the existing bridge bent in the channel and the commitment to completely span the channel will have beneficial effects. Given that in- channel bents can trap debris during high flows and can change stream hydraulics in the immediate vicinity of the structure (causing scour and deposition), the elimination of the in- channel bent is expected to reduce the bridge's effects on stream flow patterns. Also, given that large debris piles must often be removed from in- channel bents (creating additional channel disturbance and downstream sedimentation), the elimination of the in- channel bent will thus preclude future disturbance from debris removal. The lengthening of the bridge from 201 feet to approximately 210 feet and increasing the hydraulic opening under the bridge will allow the stream to access more of its floodplain, thus potentially reducing downstream bank scouring and sedimentation. Direct Effects: Removal of the in- channel bent may disturb sediment which will redeposit downstream potentially within CFS habitat. However, the small amount of sedimentation is likely sub - lethal. A possible, but unlikely, exception to this could occur if McLendons Creek was experiencing very low flow or no flow conditions and CFS were effectively trapped within a pool underneath the bridge. In this scenario, CFS could be killed during the bent removal (see the Reasonable and Prudent Measure which addresses this scenario). Also, upstream or downstream movements of CFS could be hindered temporarily by the disturbance created during bent removal. However, this disturbance is expected to only occur for portions of five days or less. Of greater concern is prolonged erosion of the disturbed area on and along the banks of the stream within the action area during the construction of the bridge and approach road. A major storm event could erode soil from within the disturbed construction area and wash it into the stream, potentially interfering with respiration, feeding, or spawning and otherwise degrading habitat. To avoid or minimize the potential for this effect, NCDOT has developed stringent erosion control measures and other conservation measures (see "Conservation Measures" section of this BO) which greatly reduce the likelihood of sediment entering the stream. In the unlikely event of catastrophic failure of erosion control measures, the effects are still likely sub - lethal. Given the mobility of the species under normal flow conditions, CFS could temporarily relocate to areas of better habitat (recall that the habitat within the action area is likely transitory). Given the distance from designated critical habitat, the project will have no effect on critical habitat. Indirect Effects: Since the project involves replacing an existing two -lane bridge with a new two -lane bridge, it is unlikely that the project will promote any secondary development or land use changes. The project does not require any utility relocations. The removal of the existing bent in the channel will likely alter flow patterns at the bridge thus forcing the stream to reach a new equilibrium. Though some minimal sediment deposition may occur due to a localized reduction of velocity, the effect is likely minimal and possibly undetectable. Overall, the project is not likely to have any measurable, indirect, adverse effect on CFS or critical habitat. Interrelated and Interdependent Actions: None known Species Response to the Action With the implementation of the conservation measures previously described, CFS are not likely to experience any mortality or injury. However, CFS behavior and movements may be altered during the removal of the in- channel bent, or could be altered in the event of catastrophic failure of erosion control measures. The use of some portion of the action area could be temporarily denied to CFS. However, any disruptions to normal CFS behavior would be short- lived. V. 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 BO. Future federal actions that are unrelated to the proposed action are not considered in this section because they require separate consultation pursuant to section 7 of the ESA. At this time there are no known future local, state or private actions, not requiring federal actions that are reasonably certain to occur within the action area. VI. CONCLUSION After reviewing the current status of the CFS, the environmental baseline for the action area, all effects of the proposed project, and the conservation measures identified in the BA, it is the 10 Service's biological opinion that the proposed replacement of Bridge No. 59 over McLendons Creek on SR 1006, as proposed, is not likely to jeopardize the continued existence of this species. Critical habitat for this species has been designated, however, this action does not affect that area and no destruction or adverse modification of that critical habitat is anticipated. This non jeopardy opinion is based, in part, on the following facts: Adverse effects are likely sub - lethal and short -term in duration. The project has significant long -term beneficial effects. Several conservation measures will greatly reduce the potential for adverse effects. In- channel work will be minimal, thus limiting the potential for adverse effects. Section 9 of the ESA and federal regulations pursuant to Section 4(d) of the ESA prohibit the taking of endangered and threatened species, respectively, without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Harm is further defined by the Service 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 by the Service 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 the purpose of, the carrying out of an otherwise lawful activity. Under the terms of Section 7(b)(4) and Section 7(0)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited taking under the ESA provided that such taking is in compliance with the terms and conditions of this Incidental Take Statement. The measures described below are non - discretionary, and must be undertaken by the USACE so that they become binding conditions of any permit issued to the NCDOT, as appropriate, for the exemption in section 7(0)(2) to apply. The USACE has a continuing duty to regulate the activity covered by this Incidental Take Statement. If the USACE (1) fails to assume and implement the terms and conditions or (2) fails to require the NCDOT to adhere to the terms and conditions of the Incidental Take Statement through enforceable terms that are added to the permit document, the protective coverage of section 7(0)(2) may lapse. To monitor the impact of incidental take, the USACE or the NCDOT must report any detectable impacts on the species to the Service as specified in the Incidental Take Statement [50 CFR §402.14(I)(3)]. Amount or Extent of 'fake Anticipated The Service anticipates that incidental take of the CFS may occur as a result of the bridge replacement. However, we believe that incidental take for this species may be difficult to detect for the following reasons: The most likely form of take would occur as harm or harassment due to temporary disturbance and /or temporary habitat degradation resulting in behavioral modification of CFS. CFS movements, breeding, feeding or sheltering could be temporarily disrupted. Incidental take resulting from behavioral modification would be very difficult to I detect and monitor in a small, mobile aquatic species. Actual habitat degradation may be detectable, but knowing whether a specific degradation actually affected the species would be difficult to determine. A less likely form of incidental take would be mortality of CFS if McLendons Creek was experiencing very low flow or no flow conditions and CFS were effectively trapped in a pool under the bridge. Removal of the in- channel bridge bent could kill CFS. If CFS were relocated out of such a pool, incidental take would occur in the form of collecting the species. Because there is no practical way to know the number of CFS that may be present within the action area at any given time, or to know whether or not sub - lethal incidental take has even occurred, it is not possible to base the overall amount of incidental take on numbers of individual fish. Only in the situation of CFS being trapped in a pool and possibly being relocated could a precise number of fish be counted. Even this number would only be a subset of all potential take when considering sub - lethal take over the entire project time span. Therefore, the level of incidental take of the CFS can be defined as all CFS that may be harmed, harassed, collected or killed within the action area (400 meters downstream and 100 meters upstream of the existing bridge). If incidental take is exceeded, all work should stop, and the Service should be contacted immediately. Effect of the Take In the accompanying BO, the Service has determined that the level of anticipated take is not likely to result in jeopardy to the CFS. The proposed project will not result in the destruction or adverse modification of any critical habitat. Reasonable and Prudent Measures The Service believes the following reasonable and prudent measures (RPM) are necessary and appropriate to minimize take of the CFS. These nondiscretionary measures include, but are not limited to, the terms and conditions outlined in this BO. 1. All Conservation Measures previously described in this BO must be implemented. 2. In- channel work will be minimized to the maximum extent practicable. 3. Avoid direct mortality of CFS if the stream is experiencing very low flow or no flow conditions. 4. Report any detectable incidental take of CFS. Terms and Conditions In order to be exempt from the prohibitions of section 9 of the ESA, the USACE and NCDOT must comply with the following terms and conditions, which implement the reasonable and prudent measures described previously and outline required reporting requirements. These terms and conditions are nondiscretionary. 12 1. The USACE will include all the aforementioned conservation measures (and the following Terms and Conditions) as special conditions in the Section 404 permit issued to NCDOT. (RPM 1) 2. NCDOT will ensure that the contractor and on -site NCDOT staff understand and follow the measures listed in the "Conservation Measures" section of this BO. (RPM 1) 3. NCDOT will ensure that Roadside Environmental Unit staff maintains a level of oversight to ensure that all appropriate erosion control measures are fully implemented to avoid /minimize sedimentation of the stream. (RPM 1) 4. No heavy equipment will be placed within the channel. (RPM 2) 5. At the time of in- channel bent removal, if McLendons Creek is experiencing very low flow or no flow conditions where fish are trapped in a pool beneath the bridge, a fish survey should be conducted within the pool to determine if CFS are present. If CFS are present, they should be relocated to a safe environment located downstream in the Deep River. If CFS are relocated, a report must be submitted to the Service's Raleigh Field Office. (RPM 3) 6. The USACE or NCDOT must notify the Service via email that the project construction has been initiated. (RPM 1,2,3) 7. If fish mortality is observed within the action area during the construction of the project, the dead fish must be identified to species to determine the presence or absence of CFS. If CFS are identified, the USACE or NCDOT must notify the Service of the take. In the unlikely event of a mass fish kill, the Service should be notified regardless of the species of fish affected. (RPM 4). Section 7(a)(1) of the ESA directs federal agencies to use their authorities to further the purposes of the ESA by carrying out conservation programs for the benefit of endangered and threatened species. The following conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information. 1. Conduct periodic CFS status surveys within its known range and submit results to the Service. 2. Contribute funding and /or staff to any future CFS reintroduction or population augmentation efforts conducted by others. 3. Assist in improving CFS habitat connectivity by contributing funding and /or expertise in removing one or more of the following dams: Lockville Dam (Deep River), Woody's Dam (Rocky River), Reeve's Dam (Rocky River), and Bynum Dam (Haw River). 4. Assist in habitat restoration by contributing funding and /or staff to managing water willow patches. 13 In order for the Service to be kept informed of actions minimizing or avoiding adverse effects or benefiting listed species or their habitats, we request notification of the implementation of any conservation recommendations. REINITIATION /CLOSING STATEMENT This concludes formal consultation on the action outlined in your May 22, 2013 request for formal consultation. As provided in 50 CFR section 402.16, reinitiation of formal consultation is required where discretionary federal agency involvement or control over the action has been retained (or is authorized by law) and if: (1) 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; (2) the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this opinion; or (3) a new species is listed or critical habitat designated that may be affected by the action. Literature Cited Catena Group. 2010. Carbonton Dam removal final monitoring report: Year -5 mollusk surveys and aquatic species surveys overview. Report to Restoration Systems, LLC. 17 pp. Groves, J.D. 2000. Progress Report: Cape Fear Shiner. Notropis mekistocholas at the North Carolina Zoological Park - Year 2000. Report for U.S. Fish and Wildlife Service. 3 pp. Groves, J.D. 2004. Progress Report: Cape Fear Shiner, Notropis mekistocholas at the North Carolina Zoological Park - Year 2004. Report for U.S. Fish and Wildlife Service. 5 pp. Federal Register. 1987. Determination of endangered species status and designation of critical habitat for Cape Fear shiner. Federal Register 52:36034- 36039. Pottern, G.B and M.T. Huish. 1985. Status survey of the Cape Fear shiner Notropis mekistocholas. Report for U.S. Fish and Wildlife Service. 44 pp. Pottern, G. 2009. 2007 Status update of the Cape Fear shiner Notropis mekistocholas. Report for the North Carolina Wildlife Resources Commission. 27 pp. Snelson, F.F. Jr. 1971 Notropis mekistocholas, a new herbivorous cyprinid fish endemic to the Cape Fear River Basin, North Carolina. Copeia 1971:449 -462. U.S. Fish and Wildlife Service. 1988. Cape Fear shiner recovery plan. Atlanta, GA. 19 pp. U.S. Fish and Wildlife Service. 2011. Draft Cape Fear shiner (Notropis mekistocholas) Strategic Habitat Conservation Framework, Raleigh. 27 pp. 14