RE_ [EXTERNAL] Duplin Bridge 36 MBTA (2)

From:Farrell, Sean C
To:Jordan, Gary; Herndon, T. Mason
Cc:Westphal, Anneliese; Brad Shaver; Wilson, Travis W.; Sprinkle, Hannah H; Stanton, Tyler P; Hammond, John
Subject:RE: [EXTERNAL] Duplin Bridge 36 MBTA
Date:Friday, April 29, 2022 8:56:00 AM
Attachments:300036_Supplemental Element Inspection_4_28_2022 (Resubmitted)_Part1.pdf
image001.png
Gary and Hannah,

Attached is a supplemental inspection for Duplin Bridge 36. The superstructure condition was
dropped to a 3 due to the quantity of girder beams with areas of 100% loss. We are planning to
move ahead with demolition of the bridge utilizing the FAST Act Section 1439 provisions for an
incidental take of the barn swallows. Prior to next year’s nesting season, we will be coordinating with
bridge maintenance on efforts to discourage swallows from nesting under bridges coming up for
demolition. Please let me know if you have any questions or concerns.

Thanks,

Sean Farrell
Division Environmental Officer
Division 3
NCDOT- Division of Highways

910-341-2033 office
910-599-1184 mobile
[e-mail]

5501 Barbados Blvd
Castle Hayne, NC 28429

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From: Jordan, Gary <[e-mail]>
Sent: Monday, April 18, 2022 3:43 PM
To: Herndon, T. Mason <[e-mail]>
Cc: Farrell, Sean C <[e-mail]>; Westphal, Anneliese <[e-mail]>; Brad
Shaver <[e-mail]>; Wilson, Travis W. <[e-mail]>; Sprinkle,
Hannah H <[e-mail]>; Stanton, Tyler P <[e-mail]>; Hammond, John
<[e-mail]>
Subject: Re: [EXTERNAL] Duplin Bridge 36 MBTA

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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 <[e-mail]>
Sent: Thursday, April 14, 2022 4:21 PM
To: Jordan, Gary <[e-mail]>
Subject: [EXTERNAL] Duplin Bridge 36 MBTA

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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
[e-mail]

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 <[e-mail]>
Sent: Thursday, April 14, 2022 2:41 PM
To: Farrell, Sean C <[e-mail]>; Herndon, T. Mason <[e-mail]>; Westphal,
Anneliese <[e-mail]>
Cc: Shaver, Brad E CIV USARMY CESAW (USA) <[e-mail]>
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

[phone] (mobile)
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[e-mail]

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