20051216 Ver 3_WWTP BiOp_20140528030018_R_20140625

NT OF
W°� e� United States Department of the Interior
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FISH AND WILDLIFE SERVICE
aacH as +e° Asheville Field Office
160 Zillicoa Street
Asheville, North Carolina 28801
May 28, 2014
Mr. Scott Jones
Asheville Regulatory Field Office
U.S. Army Corps of Engineers
151 Patton Avenue, Room 208
Asheville, North Carolina 28801 -5006
Dear Mr. Jones:
Subject: Biological Opinion for the East Yancey Water and Sewer District's Proposed
Wastewater Treatment Plant and Sewer System Project, East of Burnsville, Yancey
County, North Carolina, and Its Effects on the Federally Endangered Appalachian
Elktoe and Its Designated Critical Habitat (U.S. Army Corps of Engineers Action
ID No. 2010- 00378)
This document transmits the U.S. Fish and Wildlife Service's (Service) Biological Opinion
(Opinion) based on our review of the Biological Assessment (BA) on the effects of the East
Yancey Water and Sewer District's proposed wastewater treatment plant (W WTP) and sewer
system project on the federally endangered Appalachian elktoe (Alasmidonta raveneliana) and
its designated critical habitat in accordance with section 7 of the Endangered Species Act (Act)
of 1973, as amended (16 U.S.C. 1531 et seq.) (Act).
This Opinion is based on information provided in the January 17, 2014, BA; other available
literature; personal communications with experts on the federally endangered Appalachian
elktoe; meetings; site visits; and other sources of information. A complete administrative record
of this consultation is on file at this office.
CONSULTATION HISTORY
February 11, 1997 — The Service received a copy of a letter from the Region D Council of
Governments (RDCG) requesting an environmental review for a Community Development
Block Grant (CDBG) Economic Development Grant for the proposed project.
March 26, 1997 - The Service sent a response letter to the RDCG with concerns about the
potential impacts of the project on the federally endangered Appalachian elktoe.

July 21, 1997 — The Service received a copy of a letter from McGill Associates (McGill) to the
U.S. Chamber of Commerce — Economic Development Administration (EDA) stating their
disagreement with the EDA's finding of significant environmental impact for the project.
August 8, 1997 — The Service received a letter from the EDA to the Town of Burnsville
supporting and justifying the Finding of Significant Environmental Impact associated with the
location of Burnsville's proposed W WTP on the South Toe River. The letter included numerous
concerns justifying the determination.
January 23, 1998 — The Service received a copy of a letter from the RDCG requesting an
environmental review for a CDBG Economic Development Grant for the proposed project. The
letter noted that the proposed location for the W WTP had changed and that the new site for the
W WTP and outfall would be located on the North Toe River, downstream of its confluence with
the South Toe River.
February 20, 1998 — The Service sent a response letter to the RDCG with concerns about the
potential impacts of the project on the federally endangered Appalachian elktoe and to streams
and wetlands within the project area.
June 3, 1999 — The Service received a letter from the RDCG requesting an environmental review
of an EDA grant for the Town of Burnsville to construct a W WTP and outfall on the North Toe
River.
July 1, 1999 — The Service sent a response letter to the RDCG stating our concerns for the
proposed project and requesting additional information about the project.
August 11, 2004 — The Service received a copy of the North Carolina Department of
Environment and Natural Resources' ( NCDENR) fact sheet for National Pollutant Discharge
Elimination System ( NPDES) permit development for a W WTP discharge into the South Toe
River.
September 10, 2004 — The Service sent a response letter to the NCDENR with comments based
on the information included in the fact sheet. The letter also included recommendations to
minimize the impacts of the project on the water quality of the South Toe River, the Appalachian
elktoe, and its designated critical habitat.
February 24, 2005 — The Service received a fax copy of the draft NPDES permit for discharge
into the South Toe River.
February 25, 2005 — The Service attended a meeting with the NCDENR and North Carolina
Wildlife Resources Commission (NC WRC) to discuss the impacts of the project on water quality
and federally listed species, project alternative treatments, outfall location, and in- stream
monitoring. At that meeting the Service received a copy the alternatives cost analysis portion of
the Environmental Alternatives Analysis (EAA) developed by McGill for the proposed project.

July 2005 — The Service received a copy of the revised EAA and Nationwide Permit (NWP)
No. 12 application submitted by the EYWSD. The NWP No. 12 application was submitted for
the gravity sewer line portion of the project only. The application did not contain information on
the proposed impacts for the W WTP, outfall, or access road.
August 31, 2005 — The Service provided comments to the U.S. Army Corps of Engineers (Corps)
based on a review of the EAA and the NWP No. 12 application. The letter included concerns
about the impacts of the project on the federally endangered Appalachian elktoe and requested an
analysis of the cumulative and indirect impacts of the project.
September 29, 2005 — The Service received a copy of a letter from McGill in response to the
concerns stated in the Service's letter of August 31, 2005.
October 27, 2005 — The Service sent a letter to the Corps stating our concerns with their
proposed determination that the project will have "no effect" on Appalachian elktoe. The letter
strongly disagreed with the Corps' proposed "no effect" determination, included
recommendations to minimize the impacts of the project, and requested that the Corps conduct
an analysis of the potential indirect and cumulative impacts of the project. The letter also
included a request for a meeting with all agencies involved in the review process (NCDENR,
Corps, and NCWRC).
November 10, 2005 — The Corps issued an NWP No. 12 to the EYWSD for the construction of
gravity sewer lines for 267 linear feet (10 of impacts associated with 16 stream crossings and a
"no effect" determination for the project for the impacts to the Appalachian elktoe.
June 21, 2006 — A mussel survey and dye study were conducted at the proposed outfall location
in the South Toe River. Two live Appalachian elktoe mussels were found in close proximity to
the outfall location during the survey.
February 2010 — The Service received a copy of a reapplication letter and NWP No. 12
application. The letter indicated that a reapplication was necessary because the NWP No. 12
issued in 2005 had expired. Two previously proposed stream crossings were removed and the
W WTP outfall was included in the impact total. The application did not include impacts
associated with the access road or sewer line to be constructed directly adjacent to the South Toe
River.
March 31, 2010 — Telephone conversation with the Corps requesting a site visit and meeting with
all parties to discuss the project. The Service also recommended that mussel surveys be
conducted at the proposed outfall location in the South Toe River.
April 27, 2010 — The Service provided a letter to the Corps that included comments on the NWP
No. 12 renewal application. The letter included a request to review alternatives to the proposed
W WTP and outfall location, recommendations to minimize potential impacts of the project, and
recommended a determination of "may affect, likely to adversely affect" for the Appalachian
elktoe for the "single and complete" project (gravity sewer lines, W WTP, and outfall).

Jane 25, 2010 -The Service received a letter from the Corps in response to the Service's
April 27, 2010, comment letter. The letter from the Corps indicated that the outfall structure in
the South Toe River would require a "may affect" determination; however, the determination on
the remainder of the project (gravity sewer line; indirect, secondary, and cumulative impacts)
would remain unchanged from the 2005 permit issuance. Informal consultation was requested to
"arrive at appropriate measures for protection of the species and the designated critical habitat."
June 30, 2010 - The Service received a copy of the draft renewal of the NPDES permit from
NCDENR.
July 27, 2010 - The Service provided comments based on the draft NPDES permit to NCDENR.
The letter included recommendations for in- stream monitoring, ammonia limits, and ultraviolet
light (UV) disinfectant treatment.
January 5, 2011- E-mail correspondence between the Service and McGill regarding survey
parameters and recommendations for the survey to be conducted at the outfall location in the
South Toe River. -
January 19, 2012 - The Service received a phone call from a private citizen regarding
construction activity along the proposed gravity sewer line alignment (railroad bed) directly
adjacent to the South Toe River. The Service conducted a site visit that day and found a
construction group removing the railroad lines along the proposed alignment adjacent to the
South Toe River.
February 17, 2011 - Mussel survey conducted at the outfall location in the South Toe River.
March 7, 2011 - The Service received a copy of the mussel survey report. The survey resulted in
16 live Appalachian elktoe mussels found within the survey parameters for the outfall.
March 30, 2011 - E -mail received from Mr. Tom Augspurger (Service) that included
calculations for ammonia limits and monitoring requirements at the outfall site. The ammonia
limits for the effluent were calculated using actual pH and temperature data from the South Toe
River and were set as thresholds for the effluent that would be protective of the Appalachian
elktoe.
April 5, 2011 - The Service issued a letter to the Corps with recommendations for the outfall
construction, location, and discharge. The letter concluded informal consultation for the W WTP
and outfall portion of the project with a "not likely to adversely affect" recommendation.
April 21, 2011 - The Service received a copy of the NWP No. 12 issued by the Corps to the
EYWSD. The permit included the conditions that were included in the Service's April 5, 2011,
letter.
June 2, 2011- The Service received a copy of NCDENR's NPDES renewal permit for the South
Toe River W WTP.

April 12, 2012 — The Service received a phone call from a private citizen informing that trucks
were dumping gravel on the old railroad alignment adjacent to the South Toe River to construct a
road. The Service conducted a site visit to monitor construction activities and gather information
on the activities being conducted at the site. Project plans presented to the Corps and the Service
to date showed only a gravity sewer line being installed along the railroad alignment adjacent to
the South Toe River. However, during the site visit we became aware that an access road to the
W WTP was also proposed along the alignment.
April 25, 2012 — The Service conducted a site visit to inspect construction activities and
compliance with the NWP No. 12 and sediment- and erosion - control measures.
May 9, 2012 — Site visit conducted by the Service and McGill to discuss the proposed access
road and the three culvert stream crossings of unnamed tributaries to the South Toe River that
had been installed to construct the access road.
May 21, 2012 — The Service received a copy of a new NWP 12 application requesting an
amendment to include the replacement of the three additional culverts along the proposed access
road alignment. The plans included with the NWP No. 12 application also indicated that a pump
station was proposed for construction behind a local business located at the junction of
Highway 19 and Wyatt Town Road in Micaville. The pump station would make the main
W WTP influent line a force main instead of a gravity line as previously proposed.
June 4, 2012 — The Service received a copy of a letter from the Corps to the EYWSD rescinding
the previously issued permit due to the new information regarding the proposed access road,
force main, non - permitted impacts to streams and wetlands, and permit compliance issues. The
letter also informed the EYWSD that the Corps would reinitiate consultation with the Service as
a result of the additional impacts and new plans pertaining to project construction.
June 12, 2012 — The Service issued a comment letter based on the NWP No. 12 amendment
application. The letter included our concerns for the project's impacts on the Appalachian elktoe
and its designated critical habitat; requested a new alternatives analysis, including the new
information provided regarding the force main and access road; requested an updated alternative
cost analysis; expressed concerns with the access road location; and expressed concerns with the
loss of riparian buffer from construction of the access road. The letter also requested the
reinitiation of formal consultation based on the new information and requested an analysis (as
part of consultation) of the indirect, secondary, and cumulative impacts of the project.
June 18, 2012 — The Service attended a meeting with the Corps, McGill, and EYWSD to discuss
the consultation process, information needed to proceed with consultation, and concerns related
to the project.
July 20, 2012 — The Service and the Corps attended a meeting with McGill to discuss
alternatives to the proposed access road alignment.
August 17, 2012 — The Service attended a meeting with the Corps, and McGill to discuss the
information obtained at the July 20, 2012, meeting regarding alternative alignments for the

access road and measures that could be implemented to minimize the impacts associated with the
access road at the proposed location.
August 24, 2012 — The Service issued a letter in response to the information received at the
previous meetings. The letter included our recommendations for the relocation of the access
road and realignment of the force main outside of our recommended buffer widths along the
South Toe River. The letter also included a list of information that would be needed to complete
formal consultation if the applicant chose to keep the existing sewer line and access road
alignment along the South Toe River.
September 28, 2012 — The Service conducted a site visit to review construction activity.
Unauthorized/unpermitted impacts (from the section of gravity sewer line being installed) to
aquatic resources were found and reported to the Corps.
December 19, 2012 — The Service received a copy of the updated NWP No. 12 application
(indicating additional impacts along the access road and gravity sewer line alignment) and a draft
copy of the BA. The BA concluded that the project as proposed was "not likely to adversely
affect' the Appalachian elktoe or its designated critical habitat.
January 4, 2013 — The Service attended a meeting with the Corps to discuss the project.
Discussions about the inadequate information contained in the BA and additional impacts to
streams and wetlands that had not been permitted or included in previous NWP No. 12
applications. The Service also recommended to the Corps that consultation and review of the
project should go back to the very beginning due to new information and changes in project
plans.
January 8, 2013 — The Service conducted a site visit at the project site to observe construction
and inspect sediment- and erosion - control practices. Unauthorized /unpermitted impacts to a
wetland behind the Silver Bullet in Micaville were found and reported to the Corps.
January 11, 2013 — The Service issued an e -mail to the Corps with comments on the NWP
No. 12 application amendments and the BA. The e-mail informed the Corps of information that
would be needed in the BA but had been omitted from the December 2012 version. The e -mail
also questioned the impacts listed in the NWP No. 12 application and explained our concern that
not all aquatic impacts (stream and wetland crossings for sewer line installation) had been
included in the NWP No. 12 application.
January 15, 2013 — The Service conducted a site visit to inspect the work area and check for
permit compliance.
February 20, 2013 — The Service conducted a site visit to inspect the work area.
May 7, 2013 — The Service conducted a site visit after a recent flood event to inspect the work
area and ensure compliance with sediment basin maintenance. Several sections of sewer line
were found to have been washed into the South Toe River by the flood. This was reported to the
Corps the same day.

August 30, 2013 — The Service received a copy of the revised BA
September 17, 2013 — The Service provided an e -mail to the Corps that included comments on
the revised BA. Comments included a list of required information that was not in the BA and
discrepancies between the EAA and the BA and noted a lack of conservation measures in the
BA.
October 29, 2013 — The Service received a phone call from Congressman Mark Meadows' office
inquiring about the project and progress of the consultation.
October 30, 2013 — The Service provided an information packet via e-mail to Congressman
Meadows' office that included a timeline of events, copies of correspondences and Service
comment letters, meeting notes, and copies of past NWP No. 12 applications.
December 10, 2013 — The Service attended a meeting with McGill and Mr. Nathan Bennett
(Yancey County Manager) to discuss discrepancies in the BA, the purpose and need statement
for project, information needed to complete consultation, and conservation measures to offset
impacts of the project.
December 11, 2013 — The Service met at the project site with McGill and Mr. Bennett to review
and discuss problem areas along the access road and conservation measures that could be
included in the BA.
January 17, 2014 — The Service received a copy of the revised BA.
January 30, 2014 — The Service received a copy of a letter from the Corps indicating that the
recent edition of the BA is considered complete and requested that formal consultation be
initiated.
February 4, 2014 — The Service sent a letter to the Corps that acknowledged receipt of the Corps'
January 30, 2013, letter and accepted their request for the initiation of formal consultation.
BIOLOGICAL OPINION
I. DESCRIPTION OF THE PROPOSED ACTION
As defined in the Service's section 7 regulations (50 CFR 402.02), "action!' means "all activities
or programs of any kind authorized, funded, or carried out, in whole or in part, by federal
agencies in the United States or upon the high seas." The action area is defined as "all areas to
be affected directly or indirectly by the federal action and not merely the immediate area
involved in the action." In their BA, the EYWSD outlined the activities for the construction of a
public sewer system (to include a WW1?, pump station, and sewer line collection system) that
may affect the Appalachian elktoe and its designated critical habitat in the action area.

The EYWSD proposes to: (1) construct a new 125,000 - gallon- per -day (gpd) tertiary W WTP
with UV disinfectant; (2) construct an access road to the W WTP adjacent to the South Toe
River; (3) construct a main influent pump station; (4) install about 4,900 If of 8 -inch force sewer
main from the pump station to the W WTP; and (5) install about 22,000 If of 12 -inch gravity
sewer line and 12,000 If of 8 -inch gravity sewer line.1
The 125,000 -gpd W WTP has been constructed on a 2.0 -acre section of an 8.25 -acre site owned
by Yancey County. The site is primarily forested. The site is directly adjacent to the South Toe
River, and an outfall will be constructed from the W WTP to mid - channel of the South Toe River.
The treated effluent will be discharged through a diffuser at the outfall location.
The access road to the W WTP has been constructed along the old railroad alignment that
parallels the South Toe River. The 2,000- foot -long access road is about 15 feet wide with an
additional 10 feet of width that will be removed upon completion of the project. About 50,000
square feet (25 feet wide by 2,000 feet long), or 1.15 acres, of land has been disturbed to
construct the access road. The distance of the road to the South Toe River ranges from 15 to
80 feet. Three existing culverts in unnamed tributaries to the South Toe River have been
replaced to construct the access road.
The pump station will be constructed near the intersection of Wyatt Town Road and
U.S. Highway 19 in Micaville. The pump station will receive wastewater from the gravity lines
and will pump the wastewater through about 4,9001f of 8 -inch ductile force main. All but about
500 If of the force main sewer lines have been installed. The force main sewer line alignment
runs northward from the pump station along the west shoulder of Wyatt Town Road and along
the proposed access road to the W WTP. A total of two stream crossings (one in an unnamed
tributary to Little Crabtree Creek and one in an unnamed tributary to the South Toe River) have
been identified along the force main route. The force main has been installed under the three
culverts that have been replaced along the access road to the W WTP.
The gravity sewer line collection system is composed of about 22,000 If of 12 -inch lines located
generally parallel to Little Crabtree Creek from the proposed pump station site westward to the
Town of Burnsville. About 12,000 If of 8 -inch gravity interceptor generally parallels Ayles
Creek and Highway 80 southward from Micaville to the Hickory Springs Manufacturing facility.
Twenty six stream crossings (about 266 If of stream impacts) and two wetland crossings (about
0.13 acre of wetland impacts) will be necessary to complete the construction of the gravity
collection system. With the exception of 2,500 If, all of the gravity sewer line collection system
(Construction of this project began in January 2012 after the Corps' issuance of an NWP No. 12 in April 2011. In
June 2012, the Corps rescinded the verification of the NWP No. 12 due to changes in project plans and
non - permitted impacts to aquatic resources, thereby suspending any activities permitted under the NWP No. 12
issued in 2011. However, construction had begun on a large portion of the project, including 14 sewer line stream
crossings, I sewer line wetland crossing, about 23,400 If of sewer collection lines (gravity and force main), the
access road, and the W WTP building. A number of the sewer line stream crossings that were installed were not
authorized in the N WP No. 12 previously issued by the Corps. Though the Corps suspended use of the NWP
No. 12, work on the project (outside of jurisdictional waters of the U.S.) continued to the present. Since that time,
construction on the W WTP has been completed, and a majority of the remaining gravity collection sewer lines have
been installed.

has been installed, and 10 of the 26 proposed gravity sewer line stream crossings have been
completed. The gravity sewer line system design consists of a 15- foot -wide permanent easement
and an additional 10- foot -wide temporary construction easement along all segments of the
proposed collection system. Super silt fence has been installed along the entire collection system
at the edge of the right -of -way between the construction area and any down - gradient waterways.
A. Action Area
The action area should be determined based on consideration of all direct and indirect effects of
the proposed action (50 CFR 402.2 and 402.14(h)(2)). The action area for this project is the
entire EYWSD service area, which is comprised of about 4,000 acres of land located south and
east of the Town of Burnsville. The action area also consists of the area from the intersection of
Wyatt Town Road and U.S. Highway 19 to the 8.25 -acre W WTP site, which includes a section
of Little Crabtree Creek from Micaville to its confluence with the South Toe River and the South
Toe River from its confluence with Little Crabtree Creek to about 2001f below the proposed
outfall of the W WTP. The action area generally includes the specific locations where
construction activities are planned to occur as well as the extent of potential sewer collection
system expansions into the EYWSD.
B. Conservation Measures
Conservation measures represent actions, pledged in the project description, that the action
agency will implement in order to minimize the effects of the proposed action and further the
recovery of the species under review. The EYWSD incorporated measures such as increased
erosion and sediment controls and stormwater management to avoid and/or minimize potential
impacts to the Appalachian elktoe into the design and implementation plans for the project.
The following conservation measures are proposed by the EYWSD to avoid and /or minimize
potential impacts to the Appalachian elktoe from construction activities. These measures have
been incorporated into the design and implementation plans for the W WTP and sewer collection
system project.
1. Erosion - control measures will exceed the standard Best Management Practices as
required by the North Carolina Division of Energy Mining and Land Resources
(NCDEMLR). A minimum 25 -foot setback from the top of the streambank will
be delineated and maintained along the entire project area.
2. All silt fencing used on the project will follow the "super silt fence" details as
described by NCDEMLR. Silt fencing will be maintained and used until all
construction has been completed and all disturbed areas have been revegetated
and stabilized.
3. Erosion - control devices shall be installed immediately following any clearing
operation and before any other work begins.

4. Seeding and mulching shall be performed on the areas disturbed by construction
within 24 hours following final grade establishment. A native seed mix will be
used for revegetation of cleared areas.
5. A special polymer injection system with silt bags will be used in areas where
trenches have to be dewatered and pumped down during the installation of sewer
pipelines.
6. All sedimentation- and erosion - control measures throughout the action area must
be cleaned of sediment buildup and maintained in order to ensure proper function
of the measures.
7. Boulders will be placed at the outfall area of the culvert located at the intersection
of Wyatt Town Road and the W WTP access mad. The culvert discharges flow
directly onto the streambank of the South Toe River. The boulders will be used to
create a splash pad and plunge pool to minimize the potential for erosion of the
streambank.
8. Stormwater at the W WTP site will be directed in a diverging pattern in order to
allow overland flow through the riparian buffer area prior to reaching the South
Toe River. A riprap settling area will be installed at the stormwater pipe
discharge located at the gated entrance to the W WTP site to allow any sediment
being transported from the site to be trapped and collected. Material will be
removed during maintenance activities. The inspection and maintenance schedule
will follow the guidelines as described in Appendix E - -East Yancey Water and
Sewer District Wastewater Treatment Plant Access Road Operation and
Maintenance Plan - -of the BA.
9. Any existing private septic systems that are identified as failing within reasonable
proximity to the proposed project will be required to connect to the public sewer
as a matter of public health and safety. No new permits will be issued for on -site
systems for any development within reasonable proximity to the proposed system.
10. A Service biologist will be informed of preconstruction meetings and field
inspections to cover permit conditions and discuss any questions the contractor
and/or EYWSD has regarding implementation of this project.
11. An additional mussel survey will be conducted (under the supervision of an
individual permitted by the Service or NCWRC to conduct surveys for live
Appalachian elktoe mussels) at the outfall location about 3 days prior to
construction of the outfall to ensure that no Appalachian elktoes occur within the
outfall and cofferdam footprint. If mussels are found within the construction area,
the location of the outfall pipe and cofferdam will be adjusted to avoid impacts to
any Appalachian elktoe mussels. A representative of the Service should be on site
during the preconstruction survey.
10

12. Any and all material used to construct the cofferdam during the outfall
construction shall be free and clean of debris and/or dust. The cofferdam shall be
no larger than 8 feet in width and will extend no further than halfway across the
river. All material must be removed from the river after construction is complete.
13. Disinfection of the wastewater at the W WTP will be achieved using a
UV disinfection process. The W WTP will also have a tertiary filtration system
implemented to assure adequate treatment from the UV disinfection process.
14. An effluent diffuser will be constructed on the outfall to aid in mixing and
promote dispersion of the effluent across the entire width of the river in order to
avoid areas of high effluent concentrations.
15. In- stream ammonia monitoring will occur yew round, with seasonal monitoring
frequencies. In the summer (April 1 through October 31), sample frequency is
weekly; in the winter (November 1 through March 31), it is twice each month.
Samples, from about 25 feet upstream and downstream of the outfall, will be
taken at the same time (allowing time to move between sample locations).
16. The Corps and Service will be notified and consultation between the Corps and
the Service will be reinitiated immediately if ammonia levels from a single
in- stream monitoring event exceed 4.3 mg/L or if ammonia levels from two
consecutive in -stream monitoring events within a 30 -day period exceed 0.3 mg/L.
17. The erosion - control plan will be in place prior to any ground disturbance. When
needed, combinations of erosion - control measures (such as silt bags in
combination with a stilling basin) will be used to ensure that the most protective
measures are being implemented.
18. A guardrail will be constructed along the main entrance of the W WTP access
road to mitigate for the possibility of vehicular accidents directly into the South
Toe River.
19. The Access Road Maintenance Plan submitted by the EYWSD will be strictly
adhered to. The plan (Appendix E in the BA) documents the level and frequency
of inspection along the access road, outlines the maintenance activities allowed
for the route, etc.
20. The use of deicers or chemicals on the access road during inclement weather is
prohibited.
21. Should a wastewater spill occur at the W WTP or within the collection system, the
EYWSD will strictly adhere to the Sanitary Overflow and Wastewater Spillage
Response Plan included in Appendix C in the BA. As stated in the plan, the
EYWSD will contact the Service immediately should a spill occur.
11

H. STATUS OF THE SPECIES AND ITS CRITICAL HABITAT
A. Species Description, Life History, and Critical Habitat Description
The Appalachian elktoe has a thin, kidney- shaped shell, reaching up to about 4.0 inches
in length. Juveniles generally have a yellowish -brown periostracum (outer shell
surface), while the periostracum of the adults is usually dark brown to greenish -black in
color. Although rays are prominent on some shells, particularly in the posterior portion
of the shell, many individuals have only obscure greenish rays. The shell nacre (inside
shell surface) is shiny, often white to bluish- white, changing to a salmon, pinkish, or
brownish color in the central and beak cavity portions of the shell; some specimens
may be marked with irregular brownish blotches.
The Appalachian elktoe has been reported from relatively shallow, medium -sized
creeks and rivers with cool, clean, well - oxygenated, moderate- to fast- flowing water.
The species is most often found in riffles, runs, and shallow- flowing pools with stable,
relatively silt -free, coarse sand and gravel substrate associated with cobble, boulders,
and/or bedrock (Gordon 1991; Service 1994, 1996, 2002). Stability of the substrate
appears to be critical to the Appalachian elktoe, and the species is seldom found in
stream reaches with accumulations of silt or shifting sand, gravel, or cobble (Service
2002). Individual specimens that have been encountered in these areas are believed to
have been scoured out of upstream areas during periods of heavy rain and have not
been found on subsequent surveys (Service 2002).
Like other freshwater mussels, the Appalachian elktoe feeds by filtering food particles
from the water column. The specific food habits of the species are unknown, but other
freshwater mussels have been documented to feed on detritus (decaying organic
matter), diatoms (various minute algae) and other algae and phytoplankton
(microscopic floating aquatic plants), and zooplankton (microscopic floating aquatic
animals). The reproductive cycle of the Appalachian elktoe is similar to that of other
native freshwater mussels. Males release sperm into the water column, and the sperm
are then taken in by the females through their siphons during feeding and respiration.
The females retain the fertilized eggs in their gills until the larvae (glochidia) fully
develop. The mussel glochidia are released into the water and, within a few days, must
attach to the appropriate species of fish, which they then parasitize for a short time
while they develop into juvenile mussels. They then detach from their fish host and
sink to the stream bottom where they continue to develop, provided they land in a
suitable substrate with the correct water conditions. The banded sculpin (Cottus
carolinae) was identified as a host species for glochidia of the Appalachian elktoe at
the time the elktoe was listed, and the mottled sculpin (C. bairdl) was identified as a
host species soon after the listing (Service 2002). Dr. Jim Layzer (Tennessee
Technological University, unpublished data) has recently identified eight additional
species of fish that successfully transformed glochidia of the Appalachian elktoe into
juveniles under laboratory condition. These eight species include the wounded darter
(Etheostoma vulneratum), greenfin darter (E. chlorobranchium), greenside darter
12

(E. blenniodes), river chub (Nocomis micropogon), northern hogsucker (Kypentilum
nigracans), central stoneroller (Campostoma anonnalum), longnose dace (Rhinichthys
cataractae), and wayside dace (Clinostomus funduloides). The life span and many
other aspects of the Appalachian elktoe's life history are currently unknown.
Critical habitat was designated for the Appalachian elktoe in 2002 (Service 2002). The
areas designated as critical habitat for the Appalachian elktoe total 144.3 miles of
various segments of rivers in North Carolina and one river in Tennessee. Critical
habitat identifies specific areas that are essential to the conservation of a listed species
and that may require special management considerations or protection. Section 7(a)(2)
of the Act requires that each federal agency shall, in consultation with the Service,
ensure that any action authorized, funded, or carried out by such agency is not likely to
jeopardize the continued existence of an endangered or threatened species or result in
the destruction or adverse modification of critical habitat.
The following constituent elements are part of the critical habitat designation and are
essential to the conservation of the Appalachian elktoe:
1. Permanent, flowing, cool, clean water;
2. Geomorphically stable stream channels and banks;
3. Pool, riffle, and run sequences within the channel;
4. Stable sand, gravel, cobble, and boulder or bedrock substrates with no more than
low amounts of fine sediment;
5. Moderate to high stream gradient;
6. Periodic natural flooding; and
7. Fish hosts, with adequate living, foraging, and spawning areas for them.
In the Nolichucky River basin, critical habitat is designated for the Appalachian elktoe
in the main stem of the Nolichucky River, Cane River, Toe River, South Toe River, and
North Toe River.
B. Status and Distribution
The Appalachian elktoe is known only from the mountain streams of western North
Carolina and eastern Tennessee. Although the complete historical range of the
Appalachian elktoe is unknown, available information suggests that the species once
lived in the majority of the rivers and larger creeks of the upper Tennessee River
system in North Carolina, with the possible exception of the Hiawassee and Watauga
River systems (the species has not been recorded from either of these river systems). In
13

Tennessee, the species is known only from its present range in the main stem of the
Nolichucky River.
Currently, the Appalachian elktoe has a fragmented, relict distribution. The species
survives in scattered pockets of suitable habitat in portions of the Little Tennessee
River system, Pigeon River system, Mills River, Cheoah River, and Little River in
North Carolina and the Nolichucky River system in North Carolina and Tennessee.
Nolichucky River system: In the Nolichucky River system, at the time of listing, the
Appalachian elktoe was known to be surviving in only a few scattered areas of suitable
habitat in the Nolichucky River in North Carolina downstream to the vicinity of the city
of Erwin, Tennessee, and the Toe River and lower Cane River in North Carolina
(Service 1994). Since listing, monitoring surveys conducted by the Service, NCWRC,
North Carolina Department of Transportation (NCDOT), Tennessee Valley Authority,
and other researchers have also documented the species in the North Toe River
(McGrath 1996, 1999; Service 2002), South Toe River (John Fridell, Service, personal
observation, 1998, 2000; Steve Fraley, NCWRC, personal communication, 1999;
Service 2002), and further up the Cane River (Service 2002) in North Carolina. This
represents a significant increase in range and numbers within the Nolichucky River
system for this population. However, in September 2004, flooding associated with the
remnants of Hurricanes Frances, Ivan, and Jeanne resulted in streambank erosion and
stream - channel scour in several areas in the upper Nolichucky River system,
significantly reducing the species' numbers and distribution at several sites throughout
this river system (Fraley and Simmons 2004). Fraley and Simmons (2004) reported
decreases in numbers of the Appalachian elktoe at nearly all of the sites they surveyed.
They also reported that they failed to detect the Appalachian elktoe in the Cane and
South Toe Rivers at sites that represented the upstream limit of their distribution prior
to flooding; however, they noted that only a single individual had been found at each of
these sites during previous surveys and that these individuals may have been lost or
may have not been detected during the post -flood surveys. Also, in April 2008 The
Catena Croup (Catena) reported an on -going fish kill in the Cane River below the
Burnsville W WTP (Tim Savidge, Catena, personal communication, 2008). Available
evidence indicates that the W WTP had been experiencing problems with their treatment
tank and had been discharging untreated wastewater into the river since at least March
2008 (Roy Davis, North Carolina Division of Water Quality, personal communication,
2008). Follow -up surveys by biologists with the Service, NCWRC, and Catena failed
to find any live mussels in the river for approximately 19 miles below the W WTP
discharge; only seven live Appalachian elktoes were found in the river near the
confluence of the Cane and Toe Rivers (Fraley, personal communication, 2008), and
two live Appalachian elktoes were recorded in the river immediately above the W WTP
discharge ( Fridell,. Service, personal observation, 2008).
Little Tennessee River population: The Little Tennessee River population occupies the
reach of the river between the dam at Lake Emory, below the city of Franklin, North
Carolina, and the backwaters of Fontana Reservoir, also in North Carolina (Service
1994, 1996, 2002; McGrath 1999). Up- and downstream expansion of this population
14

is prevented by these reservoirs. At the time of listing and until just recently, this had
been considered the healthiest population of the Appalachian elktoe in terms of overall
numbers, number of year classes represented, quality of habitat, etc. However, recent
surveys conducted by biologists with the NCWRC have documented a substantial
decline in the numbers of Appalachian elktoes at several sites scattered throughout the
occupied reach of the river (Fraley, personal communication, 2006). The cause(s) of
this decline is(are) presently unknown, but the decline appears to be continuing; several
weak/dying Appalachian elktoes were observed in the river during monitoring surveys
for the spotfin chub (Errmonax monachus) by the NCWRC; Conservation Fisheries,
Inc.; and the Service in the spring of 2008 (Fridell, personal observation, 2008). Also
in 2004, hundreds of Appalachian eMoes and other mussel species were found dead in
a short reach of the river immediately below the dam at Lake Emory (Mark Cantrell,
Service, personal communication, 2004). The cause of this kill is unknown, but a local
resident reported smelling a strong chlorine odor in the area the day before the kill was
discovered. A large portion (approximately 4,600 acres) of the land bordering the reach
of the Little Tennessee River that supports the Appalachian elktoe was purchased
through a cooperative effort by the Little Tennessee River Watershed Association,
NCWRC, North Carolina Clean Water Management Trust Fund, The Nature
Conservancy, Service, and other conservation organizations and has been turned over to
the NCWRC to manage. However, tributary headwaters and a long reach of the Little
Tennessee River above Lake Emory are almost entirely in private ownership.
Sedimentation from development and other land - disturbing activities, and possibly
other pollutants from wastewater and stormwater discharges, continue to adversely
affect the habitat and water quality in the protected reach of the river.
Tuckasegee River population: Prior to listing, surveys in the Tuckasegee River system
failed to detect the presence of the Appalachian elktoe; this population was first
discovered in 1996 (Cantrell, personal communication, 1996). This population occurs
in scattered areas of suitable habitat from below the town of Cullowhee, North
Carolina, downstream to Bryson City, North Carolina (Fridell, personal observation,
1996, 1997; McGrath 1998; Savidge, personal communication, 2001; Fraley 2002).
Upstream expansion of this population is restricted by cold -water discharges and
peaking operations from hydropower facilities in the headwaters of the Tuckasegee
River and by Bryson Dam on the Oconaluftee River, which presents a physical barrier a
short distance upriver from the confluence of the Oconaluftee River with the
Tuckasegee River (Fraley 2002). Recent surveys conducted by the Service and
NCWRC indicate this population has remained stable or increased in numbers since its
discovery. In addition, through a relicensing agreement with the Federal Energy
Regulatory Commission and Duke Power, a small hydroelectric dam located on the
Tuckasegee River in the city limits of Dillsboro, North Carolina, was removed in 2010;
and monitoring indicates the species is beginning to reoccupy the approximately
0.9 -mile reach of the river formerly impounded by the dam.
Cheoah River population: A single live individual and one shell of the Appalachian
elktoe was discovered in the Cheoah River, North Carolina, below Santeetlah Dam in
2000 (Wendell Pennington, Pennington and Associates, Inc., personal communication,
15

2000). Subsequent surveys in 2002, 2003, and 2004 by biologists with the NCDOT,
NCWRC, U.S. Forest Service, the Service, and others recorded additional live
individuals from the river below Santeetlah Dam, but there were less than 20 in each
survey (Savidge, personal communication, 2002; Fridell, personal observation, 2002;
Cantrell, personal communication, 2005). Upstream expansion of this population is
blacked by Sameetlah Dam and downstream expansion by a series of impoundments on
the Little Tennessee River (including Calderwood Reservoir at the mouth of the
Cheoah River). Water from Santeetlah Reservoir is piped (bypassed) downstream to a
powerhouse located near the confluence of the Cheoah River with the Little Tennessee
River. Suitable Appalachian elktoe habitat in this bypassed reach of the Cheoah was
limited by the reducedtaltered flows and unsuitable substrate; in most areas of the
bypassed reach the substrate is comprised primarily of cobble, boulder, and bedrock,
substrates too large for the elktoe. As a result, this population appears to be very small
and restricted primarily to two short reaches of the river. However, through a recent
relicensing agreement, Tapoco Power Company has agreed to maintain minimum flows
from the dam that closely approximate flows in the river prior to construction of the
dam and to add coarse sand and gravel to the river channel below the dam to help
improve the quality of the substrate. In addition, the NCWRC and the Service are
working together to augment this population though it will likely be several years
before it can be determined how successful these measures will be in improving the
Appalachian elktoe population in the river.
Pigeon River system population: In the Pigeon River system in North Carolina, a small
population of the Appalachian elktoe occurs at scattered sites in a short reach of the
Pigeon River from Canton, North Carolina, upstream to the confluence of the West and
East Fork Pigeon Rivers, upstream a short distance in the East Fork Pigeon River,
upstream in the West Fork Pigeon River to approximately 3.2 kilometers (2.0 river
miles) downstream of the confluence of the Little East Fork River (Fridell, personal
observation, 1999; McGrath 1999; Service 2002; Fraley and Simmons 2006).
Additional monitoring of this population is needed to determine long -term population
trends.
Little River /French Broad River population: The Little River population was
discovered in 2000 (Fridell, personal observation, 2000) and is restricted to the reach of
the river below the powerhouse at Cascade Lake and a reach of the French Broad River
downstream of the mouth of the Little River (Fraley, personal communication, 2005).
Additional monitoring surveys are needed to determine long -term population trends,
but the limited work that has been conducted indicates that this population has
increased in size since it was first discovered.
Mills River population: The Mills River population was discovered in 2003 (Savidge,
personal communication, 2003). In the Mills River, the Appalachian elktoe occurs in a
short reach of the river fromjust above the Highway 280 Bridge to about 1.6 kilometers
(I river mile) below the bridge (Jeff Simmons, NCWRC, personal communication,
2004). This appears to be a small population, occurring only at scattered locations
within this river reach. One of the sites previously supporting the species was recently
16

disturbed by a trenched sewer line crossing of the river (the species was relocated from
this site prior to the construction). Several sites within the occupied reach were
destabilized by the floods of September 2004, requiring relocation of the species from
these general areas to allow for in- stream restoration activities necessary to repair the
storm damage. Additional monitoring is needed to determine the success of the
relocations and restoration work and the long -term population trends.
Extirpated sites - Historically, the Appalachian elktoe has been recorded from Tulula
Creek (Tennessee River drainage), the main stem of the French Broad River at
Asheville, and the Swannanoa River (French Broad River system) (Clarke 1981), but it
has apparently been eliminated (except from a small section of the main stem of the
French Broad River at the confluence of the Little River) from these streams (Service
1994, 1996). There is also a historical record of the Appalachian elktoe from the North
Fork Holston River in Tennessee (S. S. Haldeman collection); however, this record is
believed to represent a mislabeled locality (Gordon 1991). If the historical record for
the species in the North Fork Holston River is accurate, the species has apparently been
eliminated from this river as well.
Available information indicates that several factors have contributed to the decline and
loss of populations of the Appalachian elktoe and threaten the remaining populations.
These factors include pollutants in wastewater discharges (sewage treatment plants and
industrial discharges); habitat loss and alteration associated with impoundments,
channelization, and dredging operations; and the runoff of silt, fertilizers, pesticides,
and other pollutants from land - disturbing activities that were implemented without
adequate measures to control erosion and/or stormwater (Service 1994, 1996). Mussels
are known to be sensitive to numerous pollutants, including, but not limited to, a wide
variety of heavy metals, high concentrations of nutrients, ammonia, and chlorine —
pollutants commonly found in many domestic and industrial effluents (Havlik and
Marking 1987). In the early 1900s, Ortmann (1909) noted that the disappearance of
unionids (mussels) is the first and most reliable indicator of stream pollution. Keller
and Zam (199 1) concluded that mussels are more sensitive to metals than commonly
tested fish and aquatic insects. The life cycle of native mussels makes the reproductive
stages especially vulnerable to pesticides and other pollutants (Fuller 1974, Gardner
et al. 1976, Ingram 1957, Stein 1971). Effluent from sewage treatment facilities can be
a significant source of pollution that can severely affect the diversity and abundance of
aquatic mollusks. The toxicity of chlorinated sewage effluents to aquatic life is
well - documented (Bellanca and Bailey 1977, Brungs 1976, Goudreau et al. 1988, Tsai
1975), and mussel glochidia (larvae) rank among the most sensitive invertebrates in
their tolerance of the toxicants present in sewage effluents (Gaudreau et al. 1988).
Goudreau et al. (1988) found that the recovery of mussel populations may not occur for
up to 2 miles below the discharge points of chlorinated sewage effluent.
Land - clearing and - disturbance activities carried out without proper sedimentation and
stormwater control pose a significant threat to the Appalachian elktoe and other
freshwater mussels. Mussels are sedentary and are not able to move long distances to
more suitable areas in response to heavy silt loads. Natural sedimentation resulting
17

from seasonal storm events probably does not significantly affect mussels, but human
activities often create excessively heavy silt loads that can have severe effects on
mussels and other aquatic organisms. Siltation has been documented to adversely
affect native freshwater mussels, both directly and indirectly (Aldridge et al. 1987, Ellis
1936, Kat 1982, Marking and Bills 1979). Siltation degrades water and substrate
quality, limiting the available habitat for freshwater mussels (and their fish hosts),
thereby limiting their distribution and potential for the expansion and maintenance of
their populations; irritates and clogs the gills of filter- feeding mussels, resulting in
reduced feeding and respiration; smothers mussels if sufficient accumulation occurs;
and increases the potential exposure of the mussels to other pollutants. Ellis (1936)
found that less than I inch of sediment deposition caused high mortality in most mussel
species. Sediment accumulations that are less than lethal to adults may adversely affect
or prevent the recruitment of juvenile mussels into the population. Also, sediment
loading . in rivers and streams during periods of high discharge is abrasive to mussel
shells. Erosion of the outer shell allows acids to reach and corrode underlying layers
that are composed primarily of calcium, which dissolves under acid conditions
(Harman 1974).
The effects of impoundments on mussels are also well - documented. For the most part,
lakes do not occur naturally in western North Carolina and eastern Tennessee (most of
them are man- made); and the Appalachian elktoe, like the majority of our other native
mussels, fish, and other aquatic species in these areas, is adapted to stream conditions
(flowing, highly oxygenated water and coarse sand and gravel bottoms). Dams change
the habitat from flowing to still water. Water depth increases, flow decreases, and silt
accumulates on the bottom (Williams or al. 1992), altering the quality and stability of
the remaining stream reaches by affecting water flow regimes, velocities, temperature,
and chemistry. Cold water released from new the bottom of reservoirs lowers the water
temperature downstream, changing downstream reaches from warm- or cool -water
streams to cold -water streams, affecting their suitability for many native species that
historically inhabited these stream reaches (Miller et al. 1984, Layzer et al. 1993). The
effects of impoundments result in changes in fish communities (fish host species may
be eliminated) (Brimm 1991) and in mussel communities (species requiring clean
gravel and sand substrates are eliminated) (Bates 1962). In addition, dams result in the
fragmentation and isolation of populations of species and act as effective barriers to the
natural upstream and downstream expansion or recruitment of mussel and fish species.
The information available demonstrates that habitat deterioration resulting from
sedimentation and pollution from numerous point and nonpoint sources, when
combined with the effects of other factors (including habitat destruction, alteration, and
fragmentation resulting from impoundments, channelization projects, etc.), has played a
significant role in the decline of the Appalachian elktoe. We believe this is particularly
true of the extirpation of the Appalachian elktoe from the Swannanoa River, most of the
French Broad River, and long reaches of the Pigeon, upper Little River, and upper
Little Tennessee River systems. We believe these factors also have contributed to the
extirpation of the species from parts of the upper Tuckasegee River, Cheoah River, and
18

Tulula Creek, though the effects of impoundments are believed to have played an even
more significant role in the loss of the species in the upper reaches of these streams.
Immediate threats to the remaining populations of the Appalachian elktoe are
associated with sedimentation and other pollutants (i.e., fertilizers, pesticides, heavy
metals, oil, salts, organic wastes, etc.) from point and nonpoint sources, specifically
from wastewater treatment plants. Much of the Nolichucky River in North Carolina
contains heavy loads of sediment from past and on -going land - disturbing activities
within its watershed, and suitable habitat for the Appalachian elktoe appears to be
limited to scattered reaches in this river system. The species has not been found in the
Nolichucky River system in substrates with accumulations of silt and shifting sand; it is
restricted to scattered areas of stable, relatively clean, and gravelly substrates. The
same is true of the other surviving populations of the species.
III. ENVIRONMENTAL BASELINE
Under section 7(a)(2) of the Act, when considering the "effects of the action" on federally listed
species, we we 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 that are contemporaneous with the consultation in
process. The environmental baseline for this Opinion considers all projects approved prior to the
initiation of formal consultation.
Status of the Species Within the Action Area
Since the beginning of the North Carolina stream quality rating program, the South Toe River
has maintained an Excellent rating.2 The Appalachian elkoe occurs throughout the entire reach
of the South Toe River within the action area. This reach of the South Toe River is also
designated as critical habitat for Appalachian elktoe. The Appalachian elktoes that have been
found in this reach in recent surveys have all been healthy, with multiple age classes represented
in the population. A survey conducted in 2012 (2.55 man- hours) of a 100 -foot segment of
stream within the action area found 33 Appalachian elktoe mussels with lengths varying from
33.5 to 78 millimeters.
The survey (9 man- hours) conducted at the outfall location in 2011 yielded 16 live Appalachian
elktoe mussels, found within a 250 -foot reach of stream. Age distribution (size) of the mussels
was not recorded in detail because the mussels were not removed from the substrate.
rThe North Carolina Division of Water Resources conducts water - quality monitoring and assesses water- quality
trends throughout the state. One method used is the monitoring of benthic macroinvertebrates within a stream. The
species richness and overall biomass, as well as the presence of various groups intolerant of water - quality
degradation, are reflections of water quality.
19

Factors Affecting the Species' Environment Within the Action Area
The North Carolina Division of Water Resources conducts water - quality monitoring and has
listed Little Crabtree Creek water quality w Fair. The primary causes for the Fair quality rating
for Little Crabtree Creek are the increased development in the watershed, which has increased
stormwater runoff; contaminant input from urban stormwater runoff; and streambank
destabilization from a lack of adequate riparian buffers consisting of deep - rooted vegetation.
Urban and residential development has had impacts on the riparian buffers and aquatic habitat in
the action area. Because riparian areas have been cleared of trees and other woody vegetation,
recent high -water events have resulted in bank erosion and failure along Ayles Creek and Little
Crabtree Creek. Page 28 of the BA states the following:
Although no serious habitat or physical - chemical problems, independent of
exceptional drought, were prevalent throughout the entire (Nolichucky) basin,
lack of riparian vegetation was the most common deficiency shared by the
majority of streams sampled. No streams in this HUC are listed on the NC
impaired streams 303(d) list.
A major construction activity within a portion of the action area is the NCDOT's widening of
U.S. Highway 19. The project is on- going, and due to the large scale of disturbed land, it has the
potential to impact water quality within the action area. The project includes the construction of
a new bridge over the South Toe River, just upstream of the action area. Actions associated with
this project that may result in direct and indirect impacts to the Appalachian elktoe include the
installation of causeways for the construction of new structures and the demolition of an existing
structure, land clearing for access, potential toxic spills, removal of causeways after construction,
and demolition of the existing bridge structure at the South Toe River. Actions associated with
highway widening that may result in impacts to aquatic resources and the Appalachian elktoe
include the replacement or lengthening of culverts on tributaries and increases in impervious
surfaces and stormwater runoff along the highway widening. All of these activities have the
potential to kill or injure mussels, either by crashing them; poisoning them with the release of
some toxic substance; or causing siltation, which may suffocate them and/or destroy suitable
habitat or their fish hosts. These actions may result in direct harm to individuals or negative
changes in currently suitable habitat. Formal consultation on this project between the Service
and NCDOT was concluded with the completion of a biological opinion in March 2008.
Amendments to that biological opinion were made in January 2009 and August 2013.
Another activity that has affected the baseline within the action area is the partial construction of
the EYWSD's proposed W WTP project. Construction of this project (including 13 sewer line
stream crossings, I sewer line wetland crossing, the W WTP building, the access road, and about
26,000 if of riparian buffer removal) was begun prior to the Corps' suspension of the verification
of the NWP No. 12 for the project. A number of the stream crossings and the wetland crossing
were not authorized /permitted in the NWP No. 12. Since the suspension of the NWP No. 12, no
work has been allowed or conducted in waters of the U.S. However, the EYWSD has continued
construction on the sewer collection lines, the W WTP building, and the access road.
Construction of the access road and the W WTP building has since been completed. All of these
activities had the potential to indirectly impact the water quality of streams in the action area by
20

increasing sedimentation in the streams and destabilizing streambanks. These actions may have
resulted in adverse effects to Appalachian elktoe or negative changes to currently suitable
habitat.
IV. EFFECTS OF THE ACTION
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. Indirect effects are those caused by the proposed
action that occur later in time but that are still reasonably certain to occur (50 CFR 402.02).
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 Opinion. 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). Within the action area, the project will primarily impact (directly and indirectly)
Little Crabtree Creek, tributaries to Little Crabtree Creek (including Three Quarters Creek, Shoal
Creek, Allen Branch, George Fork Creek, Plum Branch, Bearwallow, Branch, and Cane Branch),
the South Toe River from its confluence with Little Crabtree Creek to about 200 If below the
proposed W WTP outfall location, and numerous unnamed tributaries to these streams. The
discussion that follows is our evaluation of the anticipated direct and indirect effects of the
EYWSD's proposed W WTP and sewer system project.
A. Factors to be Considered
Proximity of the Action — The highest potential for direct impacts to the Appalachian elktoe will
occur during the construction of the W WTP outfall and from the effluent that will be released
from the outfall when the W WTP becomes operational. As previously stated, 16 Appalachian
elktoes were found in the vicinity of the proposed outfall. Although measures to avoid and
minimize impacts to the South Toe River and the Appalachian elktoe are included in the project
plans, implementation of this project may result in unavoidable impacts to the Appalachian
elktoe and its habitat.
Nature of the Effect —The project will result in the loss of riparian buffer vegetation, which
could lead to increased stream temperatures and streambank destabilization. Sewer line stream
crossings will be trenched across the streams, which could discharge sediment into the streams
and create areas of streambank destabilization at the crossing sites. The proposed outfall
construction could release sediment and disturb substrate and habitat during installation. The
effluent release has the potential to introduce toxic contaminants into occupied critical habitat.
Disturbance Duration, Frequency, and Intensity - Disturbance from the remaining construction of
the project will occur over a relatively short period of time. Riparian vegetation removal will be
conducted and stabilized through erosion - control measures and a combination of hardened work
pads, immediate seeding and mulching, or matting. However, the potential release of
contaminants and toxic compounds from the W WTP outfall has the potential to adversely affect
21

the water quality of the South Toe River for the life of the project and as long as the W WTP is
operational.
Critical Habitat - Impacts to critical habitat in the area will be from the construction of the
outfall, which will cause substrate disturbance and possible habitat loss. The effluent release into
the South Toe River will have the potential to alter water chemistry and introduce toxic
contaminants into critical habitat. Sewer line stream crossings of Little Crabtree Creek and its
tributaries have the potential for destabilizing streambanks and discharging sediment into critical
habitat.
B. Analyses of Effects of the Action
Potential Beneficial Effects —There are no potential beneficial effects related to this project.
Direct Effects — The highest potential for direct impacts to the Appalachian elktoe will occur
during the construction of the W WTP outfall and from the effluent that will be released from the
outfall when the W WTP becomes operational. Cofferdams will be placed into the river to
dewater the outfall construction area. The outfall pipe will be installed in the bed of the river to
about mid - channel. These activities have the potential to kill or injure mussels by crushing them
during outfall construction, or by poisoning them with the release of contaminants in the effluent
from the outfall. These actions may result in direct harm to individuals or negative changes in
currently suitable habitat.
Indirect Effects - Indirect effects are defined as those that are caused by the proposed action and
are later in time but are still reasonably certain to occur (50 CFR 402.02). Indirect effects to the
Appalachian elktoe may include increased sedimentation from streambank destabilization and
sediment discharge associated with the sewer line stream crossings, increased stormwater flows
and erosion from additional impervious surface associated with the construction of the access
road and the W WTP, and toxic spills from trucks hauling sludge from the W WTP,
CUMULATIVE EFFECTS
Cumulative Effects in the Action Area - Cumulative effects include the combined effects of any
future state, local, or private actions that are reasonably certain to occur within the action area
covered in this Opinion. 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
Act. Because the Service is not aware of any future state, local, or private actions that are
reasonably certain to occur within the action area and which would not be subject to section 7
review, cumulative effects, as defined by the Act, will not occur and will not be addressed
further in this Opinion.
Cumulative Impacts of Incidental Take Anticipated by the Service in Previously Issued
Biological Opinions — In reaching a decision as to whether the implementation of activities
outlined in the BA are likely or are not likely to jeopardize the continued existence of the
Appalachian elktoe, we must factor into our analysis previous biological opinions issued
involving the species, especially those opinions where incidental take was presented as the area
22

of habitat disturbed. Formal consultations involving the Appalachian elktoe include the
following: (1) In 2005, Emergency Watershed Protection projects in the Mills River and the
Pigeon River; (2) In 2006, two bridge replacements on the Toe River in Mitchell and Yancey
Counties; (3) In 2008, U.S. 19 widening and bridge replacement over the Cane River; and (4) In
2010, a bridge replacement over the Pigeon River in Canton. All of these were non - jeopardy
opinions that assessed the amount of take to be "minimal."
1411MIN RIM IleI
After reviewing the current status of the Appalachian elktoe; the environmental baseline for the
action area; the effects of implementation of the proposed action; measures identified in the
EYWSD's BA to help minimize the potential impacts of the proposed project; previously issued
Service biological opinions; any potential interrelated and interdependent actions associated with
the proposed action; and any potential cumulative effects, it is the Service's biological opinion
that this project is not likely to jeopardize the continued existence of the Appalachian elktoe and
is not likely to result in the destruction or adverse modification of critical habitat.
INCIDENTAL TAKE STATEMENT
Section 9 of the Act and federal regulations pursuant to section 4(d) of the Act 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 that include,
but are not limited to, breeding, feeding, or sheltering. Incidental take is defined as take that is
incidental to, and not for the purpose of, the carrying out of an otherwise lawful activity. Under
the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as
part of the agency action is not considered to be prohibited under the Act, provided that such
taking is in compliance with the terms and conditions of this incidental take statement. The
measures described below are nondiscretionary and must be undertaken by the Corps so that they
become binding conditions for the exemption in section 7(o)(2) to apply. The Corps has a
continuing duty to regulate the activity covered by this incidental take statement. If the Corps
(1) fails to assume and implement the terms and conditions or (2) fails to require the EYWSD to
adhere to the terms and conditions of the incidental take statement through enforceable terms that
are added to any permit or grant document, the protective coverage of section 7(o)(2) may lapse.
In order to monitor the impact of incidental take, the Corps or EYWSD must report the progress
of the action and its impact on the species to the Service as specified in the incidental take
statement (50 CFR §402.14(1)(3)).
Amount of Take Anticipated
We cannot consult under section 7 on the activities associated with the project (both permitted
and non - permitted) that have already been constructed as we are not authorized to provide "after
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the fact' incidental take. Therefore, the completed construction of the access road, the W WTP
building, and a majority of the sewer line stream crossings cannot be included in the assessment
of the amount of take anticipated in this Opinion. These actions have become part of the
environmental baseline.
The Service anticipates that incidental take of the Appalachian elktoe from the remaining actions
will be unlikely with the strict implementation and enforcement of the conservation measures
included in this Opinion. If the aforementioned conservation measures are stringently followed,
the Service does not anticipate the remaining actions will result in any incidental take of the
Appalachian elktoe. Because take is not anticipated or authorized, a failure to implement any of
the conservation measures could result in non - compliance of this Opinion and constitute a
violation of section 9 of the Act. Further, though critical habitat within the project area
constitutes about 4 percent of the critical habitat in South Toe River basin, we do not believe the
activities described (with the implementation of all conservation measures) will result in the
destruction or adverse modification of designated critical habitat.
EFFECT OF THE TAKE
In this Opinion the Service has determined that this level of take is not likely to result in jeopardy
to the Appalachian elktoe or destruction or adverse modification of its critical habitat.
Reasonable and Prudent Measures
The Service believes the following reasonable and prudent measures are necessary and
appropriate to further minimize take of the Appalachian elktoe. These nondiscretionary
measures include, but are not limited to, the terms and conditions outlined in this Opinion.
1. The EYWSD will ensure that the contractor understands and follows the measures
listed in the "Conservation Measures," "Reasonable and Prudent Measures," and
"Terms and Conditions" sections of this Opinion.
2. The EYWSD will ensure that the project will not cause streambank
destabilization at locations where impacts to aquatic resources occur (sewer line
stream crossings, culvert installation, outfall construction).
3. The EYWSD will operate the W WTP and collection system in compliance with
the Clean Water Act.
4. Construction activities will be implemented consistent with measures developed to
protect the Appalachian elktoe.
5. Sediment- and erosion - control measures will be implemented to ensure that sediment
does not enter surface waters.
Em

Terms and Conditions
In order to be exempt from the prohibitions of section 9 of the Act, the EYWSD must comply
with the following terms and conditions, which implement the reasonable and prudent measures
described previously and outline required reporting and/or monitoring requirements. These
terms and conditions are nondiscretionary and apply to the remaining construction activities
associated with this project.
1. The EYWSD will ensure that the procedures listed in the "Conservation Measures,"
"Reasonable and Prudent Measures," and "Terms and Conditions" sections of this
Opinion are being implemented and that all project plans are being implemented in
a manner to ensure that the conditions of the Opinion are met.
2. The EYWSD will inform the Service about the construction date for the outfall. A
Service biologist will be present during the construction of the outfall (including the
installation and removal of any cofferdams) that will be installed in the South Toe
River in order to ensure that construction activities remain within the designated
construction boundaries.
3. Equipment should be kept out of the stream by operating equipment from the banks
in a fashion that minimizes disturbance to woody vegetation. The equipment
should be inspected daily and should be maintained in order to prevent the
contamination of surface waters from leaking fuels, lubricants, hydraulic fluids, or
other toxic materials. All fuels, lubricants, and other toxic materials should be
stored outside of the riparian management area of the stream, in a location where
materials can be contained. Equipment should be checked for leaks of hydraulic
fluids, cooling system liquids, and fuel and should be cleaned before fording any
stream. All fueling operations should be accomplished outside of the riparian
management area.
4. Streambanks should be monitored for destabilization at and within the area of the
newly constructed discharge pipe and at sewer line stream crossings. Monitoring
should be conducted after storm events that result in bank -full flow for a period of
2 years. If streambank destabilization occurs, the applicant will contact the Service
immediately and coordinate with the Corps and the Service regarding the repair
method and any related activities.
5. Monitor and photo - document the stream channel, 50 feet upstream to 150 feet
downstream of the outfall location for any stream - channel destabilization, such as
bed scour, head -cut, pipe exposure, etc. Additional monitoring will consist of
conducting a longitudinal profile of the reach specified above and a minimum of
three monumented cross sections. Cross sections should be set at the outfall
location, and at areas >50 feet above and below the outfall location. This
monitoring program should be conducted prior to construction of the outfall (for
baseline data) and 1, 3, and 7 years after construction. Data gathered from each
monitoring event will be compiled and provided to the Corps and the Service. If
25

stream channel destabilization occurs, the applicant will contact the Corps and the
Service immediately. Because the destabilization of the stream channel could
adversely modify occupied critical habitat for the Appalachian elktoe, the
reinitiation of section 7 consultation will be required.
6. Erosion - control measures will remain in place until riparian vegetation is
reestablished at all construction areas. Where riparian areas are disturbed, they will
be revegetated and stabilized with native species within 48 hours. Native trees will
be replanted at the appropriate time of year.
7. Construction will be accomplished in a manner that prohibits wet concrete from
contacting water as it enters or flows in the river.
8. If a conservation measure is not or cannot be met, the Service should be contacted
immediately to discuss options and to help determine whether reinitiation of
consultation is necessary.
CONSERVATION RECOMMENDATIONS
Section 7(a)(1) of the Act directs federal agencies to use their authorities to further the purposes
of the Act 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. Where opportunities exist, work with landowners, the general public, and other
agencies to promote education and the dissemination of information about
endangered mussels and their conservation.
2. Explore opportunities to locate areas with destabilized streambanks in the South
Toe River watershed and actively work to fund, restore, and protect any
destabilized areas.
3. Pursue opportunities to restore and conserve riparian buffers along the main stem
of the South Toe River and its tributaries, either individually or in concert with
other conservation organizations.
4. Explore opportunities to work with local and state water- quality officials in order
to minimize or eliminate sources of pollution, including wastewater and
stormwater discharges in the South Toe River watershed.
5. Pursue opportunities and funding to mitigate for impervious surface in the
watershed, and implement measures that reduce the adverse effects from
uncontrolled storm water runoff.
26

6. Consult with the Service on projects that affect aquatic habitat in the South Toe
River drainage, regardless of the funding source, to ensure compliance with all
provisions of the Act.
In order for the Service to be kept informed about actions that minimize or avoid adverse effects
or that benefit listed species or their habitats, we request notification of the implementation of
any conservation recommendations.
REINITIATION /CLOSING STATEMENT
This concludes formal consultation on the actions outlined in your BA. As provided in 50 CFR
402.16, the minitiation 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) the
amount or extent of incidental take is exceeded, (2) 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, (3) 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 (4) a
new species is listed or critical habitat is designated that may be affected by the action. In
instances where the amount or extent of incidental take is exceeded, any operation causing such
take most cease, pending reinitiation.
Consultation should also be reinitiated if new biological information comes to light that
invalidates the assumptions made regarding the biology or distribution of the Appalachian elktoe
in the South Toe River in North Carolina.
If there are any questions, please contact Mr. Bryan Tompkins of our staff at 828/258 -3939,
Ext. 240, or me, Ext. 223. We have assigned our log number 4 -2 -04 -307 to this consultation;
please refer to this number in any future correspondence concerning this matter.
Sincerely,
Janet A. Mizzi
Field Supervisor
Electronic copy to:
Mr. Nathan Bennett, Yancey County Manager
Mr. Harry Buckner, McGill Associates
Regional Director, FWS, Atlanta, GA (ES, Attention: Mr. Jerry Ziewitz)
27

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