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Home My WebLink AboutRE_ [EXTERNAL] Duplin Bridge 36 MBTAFrom:Herndon, T. Mason To:Jordan, Gary Cc:Farrell, Sean C; Westphal, Anneliese; Brad Shaver; Wilson, Travis W.; Sprinkle, Hannah H; Stanton, Tyler P; Hammond, John Subject:RE: [EXTERNAL] Duplin Bridge 36 MBTA Date:Monday, April 18, 2022 5:28:24 PM Attachments:image001.png Gary, Thank you for your time and guidance on this issue. I believe you have accurately summarized the issue and did not omit any important information. As I mentioned in our conversation, this is something that we have not encountered before; at least to this magnitude of nesting use. This will definitely be on our radar for future projects and we will start implementing some preventive measures to avoid takes and delays in construction through surveys, scheduling, and implementation of barriers when necessary. Hopefully in the near future there will be a mechanism in place for incidental takes for project that have unforeseeable nesting activity so we can avoid costly delays in construction. Sean has already forwarded your email to our construction unit and if additional conversations are requested we’ll reach out to you. Thanks! Mason Herndon Project Development Environmental Engineer Division 3 NCDOT- Division of Highways 910-341-2036 office 910-604-0050 mobile tmherndon@ncdot.gov 5501 Barbados Blvd Castle Hayne, NC 28429 Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties From: Jordan, Gary <gary_jordan@fws.gov> Sent: Monday, April 18, 2022 3:43 PM To: Herndon, T. Mason <tmherndon@ncdot.gov> Cc: Farrell, Sean C <scfarrell@ncdot.gov>; Westphal, Anneliese <awestphal@ncdot.gov>; Brad Shaver <brad.e.shaver@usace.army.mil>; Wilson, Travis W. <travis.wilson@ncwildlife.org>; Sprinkle, Hannah H <hannah.sprinkle@ncdenr.gov>; Stanton, Tyler P <tstanton@ncdot.gov>; Hammond, John <john_hammond@fws.gov> Subject: Re: [EXTERNAL] Duplin Bridge 36 MBTA CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to Report Spam. Mason, Here is a summary of our phone conversations today. The swallow nests are definitely barn swallows. In NC they often produce two broods per year and therefore have a long active nesting season with eggs or unfledged young being present from approximately April 1 - August 31. The rules on implementing the Migratory Bird Treaty Act have changed multiple times in recent years. Attached are two recent Federal Register documents. We discussed the potential use of the FAST Act Section 1439 found here: (https://www.environment.fhwa.dot.gov/legislation/authorizations/fastact/guidance_eliminatio n-of- barriers_1439.aspx#:~:text=Section%201439%20of%20the%20Fixing,on%20certain%20brid ge%20construction%20projects. The FAST Act Section 1439 provided for the temporary incidental take of nesting swallows on certain bridge projects. Although the FAST Act has expired and has been replaced with the Bipartisan Infrastructure Bill, the new bill did not revoke the provisions of Section 1439 regarding incidental take of nesting swallows - therefore Section 1439 is still applicable for certain bridges. Below is the language I received from Catherine Liller, the USFWS Transportation Coordinator at Headquarters: The Infrastructure Bill did not remove FAST Act Section §1439 from USC Title 23, thus it is still in place. Until the FWS issues a final rule authorizing take of migratory birds, the interim guidance by FHWA is still valid. As per interim guidance: Notifications shall be submitted to the Migratory Bird Program at the appropriate USFWS Regional Office prior to taking nesting swallows. (FAST Act § 1439(a)(2)(A)). A response from USFWS is not required or expected. However, notifications should be sent at least 30 calendar days prior to the taking to afford the opportunity to USFWS to communicate any special or unforeseen circumstances. However, to utilize the incidental take provision, the bridge must be federally funded and have at least one component condition rated 3 or less as defined by the National Bridge Inventory General Condition Guidance. Based on the latest bridge safety inspection report, none of the components have a rating of 3 or less. Therefore, it appears that Section 1439 will not apply for this particular bridge. In lieu of using Section 1439, the only other alternative is to delay the demolition of the bridge until at least September 1. Destroying the active nests would be a violation of the Migratory Bird Treaty Act. The USFWS is currently developing an incidental take permitting process for migratory birds, but it will not be ready for at least several more months. When the permitting process is available, I strongly recommend that NCDOT get a general permit for incidental take of swallows on bridges. Currently, the USFWS plans to provide such permits for transportation infrastructure projects. If I have not accurately summarized anything or omitted something important, please let me know Gary Jordan Fish and Wildlife Biologist, Liaison to NCDOT Raleigh Ecological Services Field Office U.S. Fish and Wildlife Service From: Herndon, T. Mason <tmherndon@ncdot.gov> Sent: Thursday, April 14, 2022 4:21 PM To: Jordan, Gary <gary_jordan@fws.gov> Subject: [EXTERNAL] Duplin Bridge 36 MBTA This email has been received from outside of DOI - Use caution before clicking on links, opening attachments, or responding. Gary, Per our phone conversation regarding the MBTA. Thanks! Mason Herndon Project Development Environmental Engineer Division 3 NCDOT- Division of Highways 910-341-2036 office 910-604-0050 mobile tmherndon@ncdot.gov 5501 Barbados Blvd Castle Hayne, NC 28429 Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties From: Sprinkle, Hannah H <hannah.sprinkle@ncdenr.gov> Sent: Thursday, April 14, 2022 2:41 PM To: Farrell, Sean C <scfarrell@ncdot.gov>; Herndon, T. Mason <tmherndon@ncdot.gov>; Westphal, Anneliese <awestphal@ncdot.gov> Cc: Shaver, Brad E CIV USARMY CESAW (USA) <brad.e.shaver@usace.army.mil> Subject: Bridge 36 Good afternoon, Please see the attached photos from Bridge 36 in Duplin Co. I would estimate there are 30 nests, maybe more . I believe we are dealing with barn swallows in this case. Hannah Hannah Sprinkle Environmental Specialist II 401 & Buffer Transportation Permitting Branch Department of Environmental Quality (910) 308-4021 (mobile) (910) 796-7306 (office) hannah.sprinkle@ncdenr.gov Based on the current guidance to minimize the spread of COVID-19, the Department of Environmental Quality has adjusted operations to protect the health and safety of the staff and public. Many employees are working remotely or are on staggered shifts. To accommodate these staffing changes, all DEQ office locations are limiting public access to appointments only. Please check with the appropriate staff before visiting our offices, as we may be able to handle your requests by phone or email. We appreciate your patience as we continue to serve the public during this challenging time. Wilmington Regional Office 127 Cardinal Drive Extension Wilmington, NC 28405 Email correspondence to and from this sender is subject to the N.C. Public Records Law and may be disclosed to third parties.