20040337 Ver 1_Other Agency Comments_20040413

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WETLANDS/ 401 GROUP
ENT of ryF APR 1 ? 2004
Q?P ,ym United States Department of the Interior
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FISH AND WILDLIFE SERVICE WATER QUALITY SECTION
Raleigh Field Office
Post Office Box 33726
?4RCH 5 Raleigh, North Carolina 27636.3726
April 7, 2004
Mr. Henry Wicker
U. S. Army Corps of Engineers
Wilmington Regulatory Field Office
P. O. Box 1890
Wilmington, North Carolina 28402-1890
Subject: Action ID # 200400494, Jimmy's Island LLC, Water's Edge at Deerfield Subdivision,
Pender County, NC
Dear Mr. Wicker:
This letter provides the comments of the U. S. Fish and Wildlife Service (Service) on the subject
Public Notice (PN), dated March 19, 2004. The applicant, Terry Turner for Jimmy's Island LLC,
has applied for a Department of the Army (DA) permit to construct a community marina
consisting of two piers and four docking areas at the Water's Edge at Deerfield Subdivision. We
have reviewed the Field Investigation Report (FIR) of the North Carolina Division of Coastal
Management (NCDM). These comments are submitted in accordance with the Fish and Wildlife
Coordination Act (FWCA) (48 Stat. 401, as amended; 16 U.S.C. 661-667d). Comments related
to the FWCA are to be used in your determination of compliance with 404(b)(1) guidelines (40
CFR 230) and in your public interest review (33 CFR 320.4) in relation to the protection of fish
and wildlife resources. Additional comments are provided regarding the District Engineer's
determination of project impacts pursuant to section 7 of the Endangered Species Act (ESA) of
1973, as amended (16 U.S.C. 1531-1543).
In January 2004 the Service received a copy of the Environmental Assessment (EA), dated
December 29, 2003, for the proposed action from the NCDCM. The EA addressed a proposal to
construct and operate four piers that would constitute the docking facilities for the subdivision.
The project would consist of two piers each in Topsail Sound (Dock Facility A), near the Atlantic
Intracoastal Waterway (AIWW), and Mill Creek (Dock Facility B). No submerged aquatic
vegetation (SAV) had been observed in the project sites. The AIWW and Topsail Sound near the
project have been designated as Outstanding Resource Waters (ORW) by the NC Division of
Water Quality (NCDWQ). The size of boats using the facility would be limited to 21 feet in
length. Construction would involve jetting and/or driving timbers into the ground.
The Service provided initial comments to the North Carolina Intergovernmental Review
Clearinghouse by letter dated February 13, 2004. A copy of this letter was sent to you.
2
The EA discusses the measures to avoid or minimize the environmental impacts of the
construction. The appendix of the revised EA contains the response of the applicant to the
recommendations of the North Carolina Wildlife Resources Commission (NCWRC) and the
NCDWQ. With the exception of the request by the NCWRC that no future dredging be
undertaken in association with these docking facilities, all these recommendations have been
accepted by the developer. Regarding dredging, the developer indicates that both Mill Creek and
the AIWW are dredge-maintained channels and that dredging would continue to maintain these
navigation channels. The Service accepts the continuation of dredging for existing waterways,
but would not support new dredging to facilitate access of boats between the development and
these existing, maintained channels.
The Service is concerned that low piers could harm marsh vegetation by blocking sunlight. The
applicant has accepted the NCWRC recommendation that pier decking would be constructed a
minimum of four feet off the marsh floor. Project plans (sheet 5 of 5) suggest that most piers
would be approximately six feet above the marsh substrate. The Service supports this
conservation design feature.
As we noted in February, the Service has reviewed available information on federally-threatened
or endangered species that could be present in the project area. The only listed species likely to
occur in the project area is the West Indian manatee (Trichechus manatus), a federally-
endangered mammal. We noted that placing timber by either jetting and/or driving poses a risk
to the manatee since water depths at the ends of the proposed piers are given as -3.5 feet at mean
low water (MLW).. During high water, manatees would be able to access much of the area of
pier construction. We stated that risks to the manatee would be reduced by implementing the
"Guidelines for Avoiding Impacts to the West Indian Manatee - Precautionary Measures for
Construction Activities in North Carolina Waters." These guidelines are available on our web
site at < htti)://ne-es.fws.gov/mammal/manatee guidelines pdf>. The guidelines are intended
mainly to ensure that construction personnel are informed that manatees may occur in the work
area, that work should cease if a manatee approaches the work area, work should not resume
until the manatee leaves the work area, and procedures for reporting the death or injury of a
manatee.
The risk to manatees would be further reduced by performing the work during the period of
November through May. The EA notes that construction would take place "during periods of
minimum biological activity," but does not specify the period. The FIR states that Mill Creek is
a designated primary nursery area (PNA). The moratorium period for PNAs adopted by the
North Carolina Department of Transportation and the Corps is February 15 through September
30. The moratorium period to protect most anadromous fish is February 15 through June 15.
The Service recommends that in-water work occur outside the PNA moratorium period that
would include all but the final month (October) when manatees are most likely to be in North
Carolina. With the inclusion of our manatee guidelines and an in-water work moratorium during
the warmest months of the year, the Service would concur with a determination by the District
Engineer that the action is not likely to adversely affect species designated as threatened,

endangered, or their designated critical habitat. However, the requirement of section 7 would
need to be reconsidered if. (1) new information reveals impacts of this identified action that may
affect listed species or critical habitat in a manner not previously considered; (2) this action is
subsequently modified in a manner that was not considered in this review; or, (3) a new species
is listed or critical habitat determined that may be affected by the identified action.
Overall, the Service is pleased that the applicant has accepted the conservation recommendations
of the state agencies. We support these recommendations and would not object to the issuance of
a DA that contained the following conditions:
1. All pier decking would be minimum of four feet above the marsh floor;
2. No additional dredging would be allowed beyond that which has been performed in the
past to maintain navigation in Mill Creek and the AIWW;
3. In-water construction would not occur during the moratorium period for PNAs and
anadromous fish which, in combination, prohibits work during the period of February 15
through September 30; and,
4. The Service's "Guidelines for Avoiding Impacts to the West Indian Manatee -
Precautionary Measures for Construction Activities in North Carolina Waters" are
implemented.
The Service appreciates the opportunity to provide these comments on this project. If you have
questions regarding these comments, please contact Howard Hall at 919-856-4520, ext. 27, at the
address above, or by e-mail at < howard hall2fws. ov >.
Sincerely,
c ^ J C??
Garland B. Pardue, Ph.D.
Ecological Services Supervisor
cc:
Ronald Mikulak US EPA, Atlanta, GA
Ron Sechler, NMFS, Beaufort, NC
Mike Street, NC Division of marine Fisheries, Morehead City, NC
Bennett Wynne, NCWRC, Kinston, NC
John Dorney, NC Division of Water Quality, Raleigh, NC
Jim Gregson, NC Division of Coastal Management, Wilmington, NC
Kristie Corson, NC Division of Coastal Management, Raleigh, NC