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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, � � 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.