20050666 Ver 1_USFWS Comments_20060213

D ~~~~
United States De artment of the Interior`
P ~ E~ ~ ~ ~~
zoos
FISH ANDeWILDL~IFEtSERVICE ~1L yps~~' STr FRB ,
160 Zillicoa Street RANCh
~. Asheville, North Carolina 28801
=:,1~ ~~
,.o: ~ ..: _ , t
~'" February 7, 2006 ~.., °,; .; ~ ":.,4.~~
~~.,
t ~a
FED 0 9 c~~4~
Mr. Scott McLendon, Acting Chief
Asheville Regulatory Field Office
U.S. Army Corps of Engineers
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006
Dear Mr. McLendon:
~~ ~," ~ ~ ~
Subject: Permit Application by General Growth Properties for Stream and Wetland Impacts
Associated with the Proposed Construction of The Bridges at Mint Hill (Mall) at a Site
Located off Lawyers Road, Straddling the Main Stem of Goose Creek, in Mecklenburg
County, North Carolina.
We have reviewed your letter of February 2, 2006, authorizing the stream and wetland impacts
associated with the subject project and the "special conditions" that were enclosed in your letter.
The following comments are provided in accordance with section 7 of the Endangered Species
Act of 1973, as amended (Act).
We provided comments to your office concerning the subject permit application by letter of
June 1, 2005, and during meetings between our staffs on May 6, 2005, and between our staffs
and the applicant's consultants on June 30, 2005. In our letter and during our meetings, we
expressed concern about the potential adverse effects of the project on the endangered Carolina
heelsplitter (Lasmigona decorata) and its designated critical habitat in Goose Creek. Our letter
also indicated our concerns about a threatened plant species (Schweinitz's sunflower [Helianthus
schweinitzii]), requested additional information concerning the potential direct and indirect
effects of the project (as defined under the Act), and provided recommendations for what we
believe is necessary to protect the Carolina heelsplitter and its designated critical habitat from
project-related impacts.
On January 10, 2006, your office provided us with a package of additional information that had
been provided to your office in September 2005 by Wetland and Natural Resource Consultants,
Inc. (WNRCI), representing the applicant. It appears that the width of the riparian buffers
depicted in the map included in that package fall far short of what we believe is necessary and
have recommended to both your office and the applicant to protect the Carolina heelsplitter (see

our letter of June 1, 2005). Also, the package does not contain enough information for us to
determine the adequacy of the storm-water control measures that have been proposed by the
applicant for protecting the predevelopment hydrograph. Further, as stated in the WNRCI's
cover letter, construction of the proposed mall will require the developer to construct additional
travel lanes on Lawyers Road to safely handle the traffic necessary to support the proposed mall.
Although we requested an assessment of the effects of this road widening in our June 1, 2005,
letter, the documents included in the package do not provide any assessment of the potential
direct and indirect impacts (including any of the effects associated with additional residential and
commercial development that is likely to result from improvements to Lawyers Road) to
endangered and threatened species associated with the widening of this road and measures that
will be implemented to avoid/minimize these effects to listed species. Section 7(a)(2) of the Act
and implementing regulations define the action area of a project as "all areas to be affected
directly or indirectly by the Federal action and not merely the immediate area involved in the
action." When assessing the potential effects of a federal agency's action, "the direct and
indirect effects of an action on listed species and critical habitat, together with the effects of
other activities that are interrelated or interdependent with that action" must be considered
(50 CFR 402.02).
Despite our concerns, you have authorized the subject project (via your February 2, 2006, letter)
under Nationwide Permit No. 39. As you are aware, section 7 of the Act requires federal
agencies to assess the direct and indirect effects, including the cumulative effects, of their actions
and to consult with the U.S. Fish and Wildlife Service on any action that "may affect"
endangered species or designated critical habitat. Because you have authorized this project
under Nationwide Permit No. 39 without initiating and completing section 7 consultation with
us, we must assume that your office has determined that the general and "special" conditions that
will be incorporated into the project are adequate to avoid any effects to the Carolina heelsplitter
and its designated critical habitat and, if present within the project impact area, Schweinitz's
sunflower. As stated in our June 1, 2005, letter, residential and commercial growth have already
contributed to a significant decline in water and habitat quality in Goose Creek and in the status
of the Carolina heelsplitter and its designated critical habitat in this stream. The majority of this
growth has occurred primarily in the headwaters and upper reaches of the stream, but the effects
extend far downstream into the reaches of Goose Creek occupied by, and designated as critical
habitat for, the Carolina heelsplitter. We do not believe the information you have provided to us
concerning this project supports your determination of no effect. Therefore, we would like to
review any additional information you may have supporting your determination. Specifically,
we would like to see the following:
1. A complete description of the measures that will be implemented throughout
the project impact area (forested riparian buffers, storm-water control and
treatment, sedimentation and erosion measures, compliance monitoring and
enforcement, etc.) and any studies or scientific information supporting the
adequacy of these measures for the long-term conservation and protection of
sensitive and imperiled aquatic stream resources from effects of the project
and the project-induced development.

2. Your biological assessment (or equivalent) of how the above measures allow
this project to avoid impacts to the Carolina heelsplitter and its designated
critical habitat.
3. The results of habitat evaluations and surveys for Schweinitz's sunflower
within the project impact area and, if present within the impact area, a
complete description of any measures that have been incorporated into the
project to avoid any adverse effects to this species.
We look forward to receiving this information at your earliest convenience. Please contact
Mr. John Fridell or Mr. Allen Ratzlaff of our staff if you have questions or need any additional
information concerning this matter (828/258-3939, Ext. 225, or Ext. 229, respectively). In any
future correspondence concerning this project, please reference our Log Number 4-2-03-015.
Sincerely,
,~
j'~' ~ /~
~, C ~~~
~~~
Brian P. Cole
Field Supervisor
Enclosure
cc:
Ms. Becky Fox, iJ.S. Environmental Protection Agency, 1349 Firefly Road, Whittier, NC 28789
Mr. Ron Linville, Western Piedmont Region Reviewer, North Carolina Wildlife Resources
Commission, 3855 Idlewild Road, Kernersville, NC 27284-9180
Mr. Alan Johnson, Mooresville Regional Office, North Carolina Division of Water Quality,
610 East Center Avenue, Mooresville, NC 28115
Ms. Sarah McRae, North Carolina Department of Environment and Natural Resources, Natural
Heritage Program, 1601 Mail Service Center, Raleigh, NC 27699-1601