HomeMy WebLinkAbout20140285 Ver 3_USFWS Comments_20160908
Carpenter,Kristi
From:Jordan, Gary <gary_jordan@fws.gov>
Sent:Thursday, September 08, 2016 10:22 AM
To:Andy Williams
Cc:Wrenn, Brian L
Subject:PN SAW-2004-01203
Attachments:20130116_Biological Opinion_R-0623.pdf
Andy,
I have reviewed the PN for the permit modification for R-0623. I only have one issue. On page 6 it states "The
Corps is not aware of the presence of species listed as threatened or endangered..." While this is probably
accurate for the areas covered by the permit mod, it is not the case for the overall project. There were adverse
effects to the federally endangered Schweinitz's sunflower. Attached is the signed Biological Opinion the
USFWS issued on January 16, 2013.
Gary Jordan
Fish and Wildlife Biologist
Liaison to NCDOT
US Fish and Wildlife Service
P.O. Box 33726
Raleigh, NC 27636-3726
Phone: 919-856-4520 x.32
Email: gary_jordan@fws.gov
1
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Raleigh Field Office
Post Office Box 33726
Raleigh, North Carolina 27636-3726
January 16, 2013
John F. Sullivan III, PE
Federal Highway Administration
310 New Bern Avenue, Suite 410
Raleigh, North Carolina 27601
Dear Mr. Sullivan:
This document transmits the U.S. Fish and Wildlife Service's (Service) biological opinion based
on our review of the proposed NC 24/27 Troy Bypass project (TIP No. R-0623) located in
Montgomery County, North Carolina, and its effects on the federally endangered Schweinitz's
sunflower (Helianthus schweinitzii) in accordance with section 7 of the Endangered Species Act
(ESA) of 1973, as amended (16 U.S.C. 1531-1543). Your December 21, 2012 request for formal
consultation was received on December 27, 2012. If you have any questions concerning this
biological opinion, please contact Mr. Gary Jordan at (919) 856-4520 (Ext. 32).
Si�icei-ely,
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Pc;te I3e�ij�u��ii1
Field Supervisor
cc: Greg Thorpe, NCDOT, Raleigh, NC
electronic copy: Ken Graham, USFWS, Atlanta, GA
Mara Alexander, USFWS, Asheville, NC
Ronnie Smith, USACE, Wilmington, NC
Laura Gadd, NCNHP, Raleigh, NC
Rob Evans, NCPCP, Raleigh, NC
Travis Wilson, NCWRC, Creedmoor, NC
Heather Wallace, NCDOT, Raleigh, NC
Greg Price, NCDOT, Raleigh, NC
Neil Medlin, NCDOT, Raleigh, NC
This Biological Opinion (BO) is based on information provided in the December 20, 2012
Biological Assessment (BA), emails, field investigations and other sources of information. A
complete administrative record of this consultation is on file at this office.
CONSULTATION HISTORY
October 16, 2003 — Service staff attended an on-site field meeting with North Carolina
Department of Transportation (NCDOT) staff and consultants to inspect the project area and
discuss potential effects to Schweinitz's sunflower.
November 25, 2008 — Service staff inet with NCDOT staff and consultants to discuss possible
avoidance and minimization of adverse effects to Schweinitz's sunflower.
December 13, 2012 — The Service provided comments on a draft BA.
December 27, 2012 — The Service received a letter from the Federal Highway Administration
(FHWA), dated December 21, 2012, with an attached December 20, 2012 BA, requesting formal
consultation on the NC 24/27 Troy Bypass project.
BIOLOGICAL OPINION
I. DESCRIPTION OF THE PROPOSED ACTION
The R-0623 project area is located in Montgomery County, North Carolina near the Town of
Troy. The project limits extend from NC 24/27 just west of SR 1138 (Dairy Road)/SR 1550
(Saunders Road) to just east of the Little River. The project consists primarily of a new four-lane
divided roadway south of downtown Troy. The facility will provide shoulders and a 46-foot
median with partial control of access. Total project length is approximately 6.0 miles, with most
of the project being constructed on new location. The proposed action includes the construction
of the new road and maintenance of the facility and its associated right-of-way (ROW).
Construction will include activities such as land clearing, grading, paving, installing drainage
features, and installing signage. Typical ROW maintenance activities include mowing, tree
removal, and/or herbicide treatment.
Action Area
The action area is defined as the entire project ROW of R-0623. This linear action area is
approximately 6.0 miles long and approximately 275 feet wide. The action area is comprised of
four biotic communities — disturbed/maintained area, mesic mixed hardwood forest, dry-mesic
oak hickory forest, and pine plantation (FHWA and NCDOT 2007). Presently, Schweinitz's
sunflowers occupy only a very small portion of the action area. However, due to the species
often positive response to tree clearing and ground disturbance, the species has the potential to
colonize almost anywhere within the action area.
2
Conservation Measures
Conservation measures represent actions, pledged in the project description, that the action
agency will implement to minimize the effects of the proposed action and further the recovery of
the species under review. Such measures should be closely related to the action and should be
achievable within the authority of the action agency. Since conservation measures are part of the
proposed action, their implementation is required under the terms of the consultation. The
FHWA and NCDOT have proposed the following conservation measures.
A plan is being developed to salvage all the Schweinitz's sunflowers affected by this project.
Seeds from the sunflowers were collected during the fall of 2012. The sunflowers which occur
within the project clearing limits will be dug up in the fall of 2013 just prior to project let. The
plants will be moved to a location with appropriate habitat, yet to be determined, but within the
Uwharrie National Forest. The selection of the relocation area will be coordinated with the U.S.
Forest Service and the North Carolina Plant Conservation Program (NCPCP). A permit will be
obtained from the NCPCP for this work.
NCDOT will attempt to utilize native seed mix in areas adjacent to overhead power lines and
existing dirt roads (since these areas provide the most suitable habitat where Schweinitz's
sunflowers may colonize in the future). However, NCDOT's ability to do this will be based on
availability of certified seed and suitability of planting areas within the ROW.
II. STATUS OF THE SPECIES
Schweinitz's Sunflower
Schweinitz's sunflower is a perennial herb of the aster family (Asteraceae). This species is
endemic to the Piedmont physiographic province of NC and SC. It is believed that this species
historically occupied prairie areas and open woodlands. However, with fire suppression and
increasing development, these habitats have either succeeded into oak-pine-hickory forests or
have been severely degraded and fragmented. Presently, this species occurs in relatively open
habitats such as roadsides, power line clearings, early successional fields, forest ecotone margins
or forest clearings. It thrives in full sun but also grows in the light shade of open stands of
oak-pine-hickory. Schweinitz's sunflower is known from a variety of soil types but is generally
found growing on shallow, poor, clayey and/or rocky soils, especially those derived from mafic
rocks. This species is endangered by the loss of historic levels of natural disturbance from fire
and grazing by native herbivores, residential and industrial development, encroachment by exotic
species, highway construction and improvement, and roadside and utility ROW maintenance
(USFWS 1994).
The species was listed as endangered on May 7, 1991 due to imminent threats and long-term
vulnerability (USFWS 1991). When the species was listed in 1991, there were a total of 13
extant populations (eight in NC and five in SC) distributed across five NC counties (Cabarrus,
Mecklenburg, Rowan, Stanly and Union) and one county (York) in SC (USFWS 1991). In the
past few years, several additional populations have been found in both NC and SC. As of 2010,
there are approximately 78 populations of the species in NC distributed across 13 counties (the
original five plus Anson, Davidson, Gaston, Montgomery, Randolph, Richmond, Stokes and
Surry) (USFWS 2006, USFWS 2010). In SC, there are eight geographically distinct areas which
would appear to approximate populations in two counties (Lancaster and York) (Houk 2003).
Therefore, the total known range consists of approximately 86 populations (USFWS 2010).
The 1991 listing rule did not state the number of plants contained within the 13 known
populations extant at that time. However, supporting information from the Service's files on this
species suggest that these sites were collectively and conservatively estimated to contain some
2,805 stems. Current data suggests that, as of 2010, those sites with some potential to provide a
role in the species' recovery in NC contain over 40,000 stems (USFWS 2010). According to
Houk (2003), all of the SC sites (regardless of their protection or recovery potential) contained
some 27,740 stems in 2002. However, due to annual variability in stem counts, it is important to
note that stem counts derived from single observations may provide limited value in assessing
the actual abundance of the species in a given location or across its range.
While seemingly more secure due to the boost in known populations, most populations remain
extremely vulnerable. A large majority of the known sites containing the species (over 90%)
occur within road or utility ROW. Many of these ROW occurrences are along existing roads
which are subject to widening and improvement projects which disturb or eliminate the existing
adjacent ROW. The NCDOT has a program designed to sign roadside rare plant populations and
manage these areas with mowing and/or herbicides applied during the dormant season. Despite
these efforts, several of the roadside populations have been adversely impacted through herbicide
applications or mowing during the wrong time of year. Current recovery efforts are focused
upon relocating plants from vulnerable ROW habitats to more protected areas with the potential
for adequate management (USFWS 2010).
Portions of 24 extant populations (distributed across eight NC counties and two SC counties)
have been identified as having a potential to meet some of the recovery criteria for the species.
Of the 24 extant populations with some protection potential, 22 (distributed across seven NC
counties and one SC county) are in some form of ownership and management that could provide
permanent protection to the species. Portions of ten of these 22 populations have written
management plans with components explicit to Schweinitz's sunflower. However,
implementation of these plans is a challenge at all locations due to lack of resources (i.e. funding
and staffl. Management plans are in draft for portions of the remaining 12 other populations
whose current ownership may provide (or has indicated willingness to provide) permanent
protective ownership (USFWS 2006, USFWS 2010).
As of the 2009 Recovery Data Call, the status of this species is listed as uncertain. The majority
of sites are not monitored annually, or in a way that allows one to assess year-to-year
fluctuations in status and trencis. Recent observations suggest that stem counts are down,
presumably due to drought. These observations are not complete enough to be considered as
representative of the status throughout the entire range of the species (USFWS 2010).
4
Other Species
In addition to the Schweinitz's sunflower that is the subject of this formal consultation, the
FHWA has determined that the project will have no effect on the federally protected smooth
coneflower (Echinacea laevigata), bald eagle (Haliaeetus leucocephalus), and red-cockaded
woodpecker (Picoides borealis). Based on available information, the Service concurs with these
conclusions. No suitable habitat occurs within the action area for the bald eagle and red-
cockaded woodpecker. Plant surveys in 2003 and 2012 did not find any specimens of smooth
coneflower. The species discussed in this paragraph will not be further considered in this BO.
III. ENVIRONMENTAL BASELINE
Under section 7(a)(2) of the Act, when considering the "effects of the action" on federally-listed
species, the Service is 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 which are contemporaneous with the consultation in
process.
Status of the Species Within the Action Area
Stantec Consulting Services, Inc. conducted plant surveys for all R-0623 corridor alternatives in
September/October 2003. Although 1,324 Schweinitz's sunflower stems were located in the
general project area, none were observed within the selected alternative. In September/October
2008, NCDOT performed a plant survey in the ROW of the selected alternative and discovered
approximately 16 stems of Schweinitz's sunflower. The 16 stems were located within a recent
clear cut. NCDOT conducted another survey in September 2012 and located only six stems
(representing five plants) within the action area. From 2008 to 2012 a general decline in habitat
quality had occurred due to pine regeneration and growth of dense herbaceous cover. These six
stems are part of the much larger element occurrence (EO) 141.180, as assigned by the North
Carolina Natural Heritage Program. As of 2003, it was estimated that EO 141.180 had over
1,300 stems. Overall, the occupied portion of the action area represents a miniscule portion of
the species range.
Factors Affecting the Species Environment Within the Action Area
Ideal habitat for Schweinitz's sunflowers was created within part of the action area after a
hunting club clear cut the area 10-15 years ago. However, as pine trees have regenerated and
thick understory vegetation has encroached, the habitat appears to be in decline and may not
continue to support the species without management.
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. 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 BO. 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). The discussion that follows is our evaluation of the
anticipated direct and indirect effects of the proposed project. Indirect effects are those caused
by the proposed action that occur later in time but are still reasonably certain to occur (50 CFR
402.02).
Factors to be Considered
The six Schweinitz's sunflower stems within the action area represent less than 0.5% of the
estimated number of stems within EO 141.180. These six stems and seeds collected in 2012 will
be replanted in more suitable habitat that will be managed. While construction of the new road
will have a permanent adverse effect on the sunflower habitat at the specific locations of the six
stems, the clearing and ground disturbance for the associated ROW adjacent to the road may
create new habitat and encourage colonization (possibly from dormant seeds in the soil).
Schweinitz's sunflower often responds favorably to clearing and/or ground disturbance. If new
sunflowers appear in the new ROW, long term management would be necessary to prevent
perpetual adverse indirect effects (e.g. mowing at wrong time of year ar herbicide treatments).
Analysis for Effects of the Action
Beneficial Effects: It is the Service's opinion that it is reasonable to expect good survivorship in
the material transplanted from the action area (plants and seeds) for this project. Seeds collected
from the Schweinitz's sunflowers will likely produce additional plants which can be transplanted
into a protected area. These transplanted plants will be located in a more protected site and will
help move the species towards recovery. In addition, sunflowers located outside the action area,
but immediately adjacent to the ROW, may expand into some of the unpaved portion of the
ROW once the project is completed. The unpaved portion of the ROW will be maintained as
early successional habitat which may support Schweinitz's sunflowers. Colonization of the
unpaved portion of the ROW may occur from previously dormant sunflower seeds existing in the
seed bank, which may be stimulated to grow once the soil is disturbed and competing vegetation
is removed or suppressed.
Direct Effects: A very small portion of EO 141.180 will be directly affected by clearing,
grading, ditching, paving and other earthwork. Six stems representing five plants (as of 2012)
will be directly affected by the project. The area that is paved will result in permanent habitat
loss for the species. But for the conservation measures proposed by the FHWA and NCDOT, all
of the 6 stems directly affected by this project would be lost. However, since NCDOT will be
digging up these stems prior to earthwork commencing, the stems will be salvaged and later
relocated to an acceptable site for conservation. Any seeds existing in the substrate under
pavement will be permanently lost.
Indirect Effects: Indirect effects may result from modifications of roadside habitat by
landscaping and the use of exotic species of grasses for erosion control. Soil compaction and the
addition of more pavement may affect hydrology and drainage in the action area. These actions
would further alter habitat and could encourage the expansion of invasive and/or exotic species
of plants, some of which are already present near the site. If Schweinitz's sunflowers recolonize
the unpaved portions of the action area once construction is completed, routine maintenance of
the ROW (e.g. mowing, herbicide treatments) could adversely affect the species if the new
sunflowers are not adequately protected.
According to the indirect and cumulative impacts assessment in the Environmental Assessment
(FHWA and NCDOT 2007), the "proposed bypass would not overtly contribute to the project
study area's growth, as it would foster through-travel rather than provide substantial economic
development opportunities. Partial control of access and the use of superstreet intersections
along the proposed bypass would aid in maintaining traffic flow as well as limit the accessibility
and attractiveness of adjacent land." Also, the project will not provide any additional access to
parcels that currently contain Schweinitz's sunflower. Therefore, indirect effects due to
secondary development are not expected.
Interrelated and Interdependent Actions: Some Progress Energy transmission towers must be
moved slightly outside the NCDOT ROW as result of this project. However, these relocations
are not expected to affect Schweinitz's sunflower.
V. CUMMULATIVE EFFECTS
Cumulative effects include the effects of future state, tribal, local or private actions that are
reasonably certain to occur in the action area considered in this biological 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 ESA. At this time there are no
known future local, state or private actions, not requiring federal actions that are reasonably
certain to occur within the action area.
VI. CONCLUSION
After reviewing the current status of Schweinitz's sunflower, the environmental baseline for the
action area, all effects of the proposed project, and the conservation measures identified in the
BA, it is the Service's biological opinion that the construction of the proposed NC 24/27 Troy
Bypass (TIP No. R-0623), as proposed, is not likely to jeopardize the continued existence of this
species. No critical habitat has been designated for this species; therefore, none will be affected.
This non jeopardy opinion is based, in part, on the following facts: The current number of
known populations of the species is much greater than when the species was listed in 1991. The
project will only impact six stems, which represents less than 0.5% of the stems at EO 141.180.
The plants will be salvaged and relocated to a more protected area which will be managed.
7
INCIDENTAL TAKE STATEMENT
Section 9 of the ESA and federal regulations pursuant to Section 4(d) of the ESA 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 which include, but
are not limited to, breeding, feeding or sheltering. Incidental take is defined as take that is
incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the
terms of Section 7(b)(4) and Section 7(0)(2), taking that is incidental to and not intended as part
of the agency action is not considered to be prohibited taking under the ESA provided that such
taking is in compliance with the terms and conditions of this Incidental Take Statement.
Sections 7(b)(4) and 7(0)(2) of the ESA generally do not apply to listed plant species. However,
limited protection of listed plants from take is provided to the extent that the ESA prohibits the
removal and reduction to possession of federally-listed endangered plants or the malicious
damage of such plants on areas under federal jurisdiction, or the destruction of endangered plants
on non-federal areas in violation of State law or regulation or in the course of any violation of a
State criminal trespass law. Applicable provisions of the North Carolina Plant Protection and
Conservation Act (GS 106-202.12 to 202:22) should be followed.
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.
NCDOT should endeavor to keep roadside populations of Schweinitz's sunflower free
of invasive plant species.
2. NCDOT should improve its roadside plant management program by working harder to
prevent roadside populations of federally threatened and endangered species from
being treated with herbicides or mowed at the wrong time of year.
3. NCDOT should provide the Service (Raleigh Field Office and the species lead in the
Asheville Field Office) with a copy of any NCDOT databases used for tracking the
locations and extent of, as well as impacts to, roadside populations of federally listed
plant species. These data should be provided on an annual basis.
In order for the Service to be kept informed of actions minimizing or avoiding adverse effects or
benefiting listed species or their habitats, we request notification of the implementation of any
s
conservation recommendations (both the Raleigh Field Office and the species lead in the
Asheville Field Office).
REINITIATION/CLOSING STATEMENT
This concludes formal consultation on the action outlined in your December 21, 2012 request for
formal consultation. As provided in 50 CFR section 402.16, reinitiation of formal consultation is
required where discretionary federal agency involvement or control over the action has been
retained (or is authorized by law) and i£ (1) 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; (2) 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 (3) a new species is listed or
critical habitat designated that may be affected by the action.
Literature Cited
Federal Highway Administration and North Carolina Department of Transportation. 2007.
Environmental Assessment: NC 24/27 Troy Bypass from NC 24/27 just west of SR 1138
(Dairy Road) to just east of the Little River, Montgomery County, North Carolina.
Federal Aid No. STP-24(6). State Project No. 8.T551001, TIP No. R-623.
Houk, Richard. 2003. Status Survey and Prioritization Protection of Schweinitz's sunflower
(Helianthus schweinitzii) in York and Lancaster Counties, South Carolina. Prepared for
U.S. Department of Interior, U.S. Fish and Wildlife Service, Charleston Field Office,
Charleston, SC.
U.S. Fish and Wildlife Service. 1991. Endangered and threatened plants; determination of
Helianthus schweinitzii (Schweinitz's sunflower) to be an endangered species. Federal
Register 56(88):21087-21091.
U.S. Fish and Wildlife Service. 1994. Schweinitz's Sunflower Recovery Plan. U.S. Fish and
Wildlife Service. Atlanta, GA.
U.S. Fish and Wildlife Service. 2006. Schweinitz's sunflower (Helianthus schweinitzii). 5-Year
Review: Summary and Evaluation. Asheville, NC.
U.S. Fish and Wildlife Service. 2010. Schweinitz's sunflower (Helianthus schweinitzii). 5-Year
Review: Summary and Evaluation. Asheville, NC.