20230048 Ver 1_08 [Old Betty Ford] T&E Letter 22-580_USACE__20221229

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United States Department of the Interior
FISH AND WILDLIFE SERVICE
Asheville Field Office
160 Zillicoa Street
Asheville, North Carolina 28801
November 22, 2022
David Rabon
Atlas Environmental, Inc.
338 South Amity Road 9441
Charlotte, North Carolina 28211
drab on (cry, atl as envi . com
Subject: Old Beatty Ford Industrial Development; Rowan County, North Carolina
Dear David Rabon:
The U.S. Fish and Wildlife Service (Service) has reviewed the information provided in your
revised correspondence dated October 24, 2022, wherein you solicit our comments regarding
project -mediated impacts to federally protected species. We submit the following comments in
accordance with the provisions of the Fish and Wildlife Coordination Act, as amended
(16 U.S.C. 661-667e); the National Environmental Policy Act (42 U.S.C. §4321 et seq.); and
section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543) (Act).
On July 5, 2022, the U.S. District Court of the Northern District Court of California vacated the
2019 regulations implementing section 7 of the Act. On September 21, 2022, the Ninth Circuit
Court of Appeals granted a request to stay the U.S. District Court of Northern California's July 5,
2022, order that vacated the 2019 Act regulations. As a result, the 2019 regulations are again in
effect, and the U.S. Fish and Wildlife Service (Service) has relied upon the 2019 regulations in
issuing our written concurrence on the action agency's "may affect, not likely to adversely
affect" determination. However, because the outcome of the legal challenges to the 2019 Act
regulations is still unknown, we considered whether our substantive analyses and conclusions
would have been different if the pre-2019 regulations were applied in this informal consultation.
Our analysis included the prior definition of "effects of the action." We considered all the "direct
and indirect effects" and the "interrelated and interdependent activities" when determining the
"effects of the action." We then considered whether any "effects of the action" that overlap with
applicable ranges of listed species would be wholly beneficial, insignificant, or discountable to
the species. As a result, we determined the substantive analysis and conclusions would have been
the same, irrespective of which regulations applied.
Project Description
According to the information provided, the Applicant proposes to construct an industrial
development and appurtenances on approximately 145 partially forested acres in China Grove,
North Carolina. The information provided suggests that the proposed project will require
authorization from the U.S. Army Corps of Engineers for unavoidable impacts to Waters of the
United States. A description of proposed impacts to Waters of the U.S. or onsite habitats has not
been prepared or provided at this time.

Federally Listed Endangered and Threatened Species
Your correspondence indicates that suitable habitat is present within the action area (50CFR
402.02) for the federally endangered Schweinitz's sunflower (Helianthus schweinitzii). However,
targeted botanical surveys conducted during the appropriate timeframe for this species (August
24, 2022, and October 19, 2022) detected no evidence for this species at that time. Therefore, we
believe that the probability for inadvertent loss of this plant is insignificant and discountable and
would concur with a "may affect, not likely to adversely affect" determination from the action
agency for this plant. Botanical survey results are valid for two years for the purposes of
consultation under the Act:
hllps://www.fws. gov/asheville/pdfs/Optimal%20Survey%20Windows%20for%20listed%20plant
s%202020.pdf
Suitable habitat for tricolored bat (Perimyotis subflavus) may be present within the proposed
action area. On September 14, 2022, the Service published a proposal in the Federal Register to
list the tricolored bat as endangered under the Act. The Service has up to 12 months from the
date the proposal published to make a final determination, either to list the tricolored bat under
the Act or to withdraw the proposal. The Service determined the bat faces extinction primarily
due to the range -wide impacts of WNS. Because tricolored bat populations have been greatly
reduced due to WNS, surviving bat populations are now more vulnerable to other stressors such
as human disturbance and habitat loss. Species proposed for listing are not afforded protection
under the Act; however, as soon as a listing becomes effective (typically 30 days after
publication of the final rule in the Federal Register), the prohibitions against jeopardizing its
continued existence and "take" will apply. Therefore, if you suspect your future or existing
project may affect tricolored bats after the potential new listing goes into effect, we recommend
analyzing possible effects of the project on tricolored bats and their habitat to determine whether
consultation under section 7 of the Act is necessary. Conferencing procedures can be followed
prior to listing to ensure the project does not jeopardize the existence of a species. Projects with
an existing section 7 biological opinion may require re -initiation of consultation to provide
uninterrupted authorization for covered activities. Please contact our office for additional
guidance or assistance.
Monarch butterfly is a candidate species, and we appreciate the project proponent's
consideration of monarch butterfly when evaluating the action area for impacts to federally listed
species and their habitats. The species is not subject to section 7 consultation, and an effects
determination is not necessary. General recommendations for pollinators can be provided and
would be protective of monarch butterfly should the project proponent like to implement them in
the future.
Your correspondence indicates that suitable habitat is not present within the action area for any
other federally protected species. Please be aware that obligations under section 7 of the Act
must be reconsidered if. (1) new information reveals impacts of the identified action may affect
listed species or critical habitat in a manner not previously considered, (2) the identified action is
subsequently modified in a manner that was not considered in this review, or (3) a new species is
listed or critical habitat is determined that may be affected by the identified action.
We offer the following recommendations on behalf of natural resources:
K

Erosion and Sediment Control
Measures to control sediment and erosion should be installed before any ground -disturbing
activities occur. Grading and backfilling should be minimized, and existing native vegetation
should be retained (if possible) to maintain riparian cover for fish and wildlife. Disturbed areas
should be revegetated with native vegetation as soon as the project is completed. Ground
disturbance should be limited to what will be stabilized quickly, preferably by the end of the
workday. Natural fiber matting (coir) should be used for erosion control as synthetic
netting can trap animals and persist in the environment beyond its intended purpose.
Impervious Surfaces and Low -Impact Development
Increased storm -water runoff also degrades aquatic and riparian habitat, causing stream -bank and
stream -channel scouring. Impervious surfaces reduce groundwater recharge, resulting in even
lower than expected stream flows during drought periods, which can induce potentially
catastrophic effects for fish, mussels, and other aquatic life. Accordingly, we recommend that all
new development, regardless of the percentage of impervious surface area they will create,
implement storm -water -retention and -treatment measures designed to replicate and maintain the
hydrograph at the preconstruction condition to avoid any additional impacts to habitat quality
within the watershed.
We recommend the use of low -impact -development techniques, such as reduced road widths,
grassed swales in place of curb and gutter, rain gardens, and wetland retention areas, for
retaining and treating storm -water runoff rather than the more traditional measures, such as large
retention ponds, etc. These designs often cost less to install and significantly reduce
environmental impacts from development.
Where detention ponds are used, storm -water outlets should drain through a vegetated area prior
to reaching any natural stream or wetland area. Detention structures should be designed to allow
for the slow discharge of storm water, attenuating the potential adverse effects of storm -water
surges; thermal spikes; and sediment, nutrient, and chemical discharges. Also, because the
purpose of storm -water -control measures is to protect streams and wetlands, no
storm -water -control measures or best management practices should be installed within any
stream (perennial or intermittent) or wetland.
The Service appreciates the opportunity to provide these comments. Please contact Mr. Byron
Hamstead of our staff at [e-mail] if you have any questions. In any future
correspondence concerning this project, please reference our Log Number 4-2-22-580.
Sincerely,
- - original signed - -
Janet Mizzi
Field Supervisor