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Home My WebLink About20171597 Ver 1_401 Applications_20171215Monte Matthews United States Department of the Interior NCDOT Team Leader US Army Corps of Engineers 69 Darlington Avenue Wilmington, NC 28403-1343 FISH AND WILDLIFE SERVICE Ecological Services P.O. Box 33726 Raleigh, NC 27636-3726 December 5, 2017 F7� I4 WILDLIFE SBRVICS �"'��,.o. T,��`°� Subject: Biological Opinion — Replacement of Bridge No. 19 on NC 42 over Deep River, Chatham and Lee Counties, North Carolina [FWS Log #: 04EN2000-2017-F-0950] Dear Mr. Matthews: This letter transmits the enclosed biological opinion (BO) of the U.S. Fish and Wildlife Service (Service) for the Replacement of Bridge No. 19 on NC 42 over Deep River, Chatham and Lee Counties, North Carolina (the Action). The US Army Corps of Engineers, pursuant to Section 404 of the Clean Water Act, proposes to authorize the Action. The Service received on November 13, 2017, your letter requesting formal consultation for the Action described in Biological Assessment for Replacement of Bridge No. 19 on NC 42 over Deep River. You determined that the Action is likely to adversely affect Cape Fear Shiner. The enclosed BO answers your request for formal consultation, and concludes that the Action is not likely to jeopardize the continued existence of the species listed above. This finding fulfills the requirements applicable to the Action for completing consultation under §7(a)(2) of the Endangered Species Act (ESA) of 1973, as amended. Reinitiating consultation is required if the US Army Corps of Engineers retains discretionary involvement or control over the Action (or is authorized by law) when: a. the amount or extent of incidental take is exceeded; b. new information reveals that the Action may affect listed species or designated critical habitat in a manner or to an extent not considered in this BO; c. the Action is modified in a manner that causes effects to listed species or designated critical habitat not considered in this BO; or d. a new species is listed or critical habitat designated that the Action may affect. A camplete administrative record of this consultation is an file in our of�ce at the letter-head address. If you have any questions about the BO, please contact Gary Jardan by phone at 919- $56-4520 x.32 or by email at gary,jordan @ fws.gov. Sincerely, Tom Augspu � Deputy Field Office Supervisar EncloSure Electronic copy provided to: Andy Williams, USACE, Wake Forest, NC Art King, NCDOT, Aberdeen, NC Tim Welch, NCD4T, Aberdeen, NC Jared Gray, NCDOT, Raleigh, NC Travis Wilsan, NCWRC, Creedmoor, NC April Norton, NCDEQ, Raleigh, NC 2 Biological Opinion Replacement of Bridge No. 19 on NC 42 over Deep River, Chatham and Lee Counties, North Carolina FWS Log #: 04EN2000-2017-F-0950 Prepared by: U.S. Fish and Wildlife Service Raleigh Field Office P.O. Box 33726 Raleigh, NC 27636-3726 � ti�., 12-5-2017 Ton1 Augspurger, Deputy � ield Supervisor Date TABLE OF CONTENTS CONSULTATION HISTORY ...................................................................................................................................... iii BIOLOGICAL OPINION ............................................................................................................................................1 1. INTRODUCTION ............................................................................................................................................1 2. PROPOSED ACTION .......................................................................................................................................1 2.1. Action Area .................................................................................................................................................2 2.2. Removal of the Existing Bridge ...................................................................................................................2 2.3. Construction of the New Bridge ..................................................................................................................3 2.4. Conservation Measures ..............................................................................................................................3 2.5. Interrelated and InterdependentActions ...................................................................................................5 3. STATUS OF SPECIES .......................................................................................................................................5 3.1. Species Description .....................................................................................................................................5 3.2. Life History ..................................................................................................................................................5 3.3. Numbers, Reproduction, and Disiribution ..................................................................................................6 3.4. Conservaiion Needs and Threais ................................................................................................................7 4. ENVIRONMENTAL BASELINE .........................................................................................................................7 4.1. Action Area Numbers, Reproduction, and Distribution ..............................................................................7 4.2. Action Area Conservation Needs and Threats ............................................................................................8 5. EFFECTS OF THE ACTION ...............................................................................................................................8 5.1. Effects of Removal of ihe Exisiing eridge ...................................................................................................8 5.2. Effects of Consiruciion of the New eridge ..................................................................................................9 6. CUMULATIVE EFFECTS ..................................................................................................................................9 7. CONCLUSION ................................................................................................................................................ 9 8. INCIDENTALTAKE STATEMENT ...................................................................................................................10 8.1. Amount or Extent of Take .........................................................................................................................11 8.2. Reasonable and Prudent Measures ..........................................................................................................11 8.3. Terms and Conditions ...............................................................................................................................12 8.4. Monitoring and Reporting Requirements .................................................................................................12 9. CONSERVATION RECOMMENDATIONS .......................................................................................................12 10. REINITIATION NOTICE .................................................................................................................................12 11. LITERATURE CITED ......................................................................................................................................13 11 CONSULTATION HISTORY This section lists key events and correspondence during the course of this consultation. A complete administrative record of this consultation is on file in the Service's Raleigh Field Office. 2017-08-22 — Service staff inet onsite with North Carolina Department of Transportation (NCDOT) staff and North Carolina Wildlife Resources Commission staff to discuss project plans and need for formal Section 7 consultation for the endangered Cape Fear Shiner (Notropis mekistocholas). 2017-10-30 — The Service received a draft biological assessment (BA) for review. 2017-11-06 — The Service provided comments on the draft BA to NCDOT. 2017-11-13 — The Service received the final BA (dated 2017-11-10) and a letter from the US Army Corps of Engineers (USACE) requesting initiation of formal Section 7 consultation. 2017-11-21— The Service sent a letter to the USACE stating that all information required for initiation of consultation was either included with their 2017-11-13 letter or was otherwise available. 2017-11-27 — The Service provided the USACE and NCDOT with a draft Biological Opinion. iii BIOLOGICAL OPINION 1. INTRODUCTION A biological opinion (BO) is the document that states the opinion of the U.S. Fish and Wildlife Service (Service) under the Endangered Species Act of 1973, as amended (ESA), as to whether a Federal action is likely to: • jeopardize the continued existence of species listed as endangered or threatened; or • result in the destruction or adverse modification of designated critical habitat. The Federal action addressed in this BO is the US Army Corps of Engineers (USACE) authorization, pursuant to Section 404 of the Clean Water Act, of the proposed replacement of Bridge No. 19 on NC 42 over Deep River, Chatham and Lee Counties, North Carolina (the Action). This BO considers the effects of the Action on Cape Fear Shiner (CFS). The Action does not affect designated critical habitat; therefore, this BO does not further address critical habitat. A BO evaluates the effects of a Federal action along with those resulting from interrelated and interdependent actions, and from non-Federal actions unrelated to the proposed Action (cumulative effects), relative to the status of listed species and the status of designated critical habitat. A Service opinion that concludes a proposed Federal action is not likely to jeopardize species and is not likely to destroy or adversely modify critical habitat fulfills the Federal agency's responsibilities under §7(a)(2) of the ESA. In this BO, only the jeopardy definition is relevant, because the Action does not affect designated critical habitat. "Jeopardize the continued existence" means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species (50 CFR §402.02). The basis of our opinion for CFS is developed by considering the status of the species, its environmental baseline, the effects of the Action, and cumulative effects. This BO uses hierarchical numeric section headings. Primary (level-1) sections are labeled sequentially with a single digit (e.g., 2. PROPOSED ACTION). Secondary (level-2) sections within each primary section are labeled with two digits (e.g., 2.1. Action Area), and so on for level-3 sections. 2. PROPOSED ACTION The North Carolina Department of Transportation (NCDOT) proposes to replace Bridge No. 19 on NC 42 over Deep River in Chatham and Lee Counties, North Carolina. The existing bridge is considered structurally deficient and functionally obsolete according to Federal Highway Administration standards. Components of both the superstructure and substructure have experienced an increasing degree of deterioration that can no longer be addressed by maintenance activities. The bridge is approaching the end of its useful life. Replacement of the bridge will result in safer traffic operations. The tentative date for construction to begin is approximately February 2018. The estimated time to complete construction is approximately 9- 10 months. Pursuant to Section 404 of the Clean Water Act, the Action requires authorization from the USACE. The Action will be deconstructed into three components: 1) removal of the existing bridge, 2) construction of the new bridge, and 3) conservation measures. 2.1. Action Area For purposes of consultation ui�der ESA §7, the action area is defined as "all areas to be affected directly or indirectly by the Federal action and not merely the iinmediate area involved in the action" (50 CFR §402.02). The "Action Area" for t11is consultation includes the footprint of the existing and new bridges, the river banlc immediately adjacent to the bridge receiving any runoff from the construction activity, and a section of the Deep River extending from 400 meters downstream to 100 meters upstream of Bridge No. 19 (Figure 2-1). Under normal circumstances, a downstream distailce of 400 meters is generally considered to be the maximum extent of detectable sediinentation effects. The Action Area encompasses the site of the former Carbonton Dam. �� .. � .� •,. z o.i �' �� . til, . � � • � . -. ��yn'� . �� _ � TS`:, '�;C:_,; Figurc 2-1. Approximate boiuldaries ot�Action Arca depictcd in ccd. 2.2. Removal of the Existing Bridge The existing bridge is a six-span structure that consists of a reinforced concrete deck on I-beams, with an overall length of 330 feet. To remove the existing structure, the deck of the bridge is expected to be saw cut and removed in sections, along with the girders. The river will be protected from debris by methods such as suspended tarps and barges. A series of temporary rock causeways will be utilized to access and remove the existing bents. Causeways will be 2 constructed using Class II rip-rap for the base with a top layer of Class B rip-rap. Rip-rap will be placed using a track hoe. The bents will either be saw cut in sections or pulled over and then removed with a crane. Causeway #2 will be constructed and used to remove the existing middle bent and then removed. Causeway #2 is expected to be in place for less than a week. Causeways # 1 and #3, which would be in place simultaneously for up to 6-7 months, would be constructed after causeway #2 is removed. Causeways #1 and #3 are necessary to remove the other existing bents from the river. The existing bridge abutments will be excavated and removed. 2.3. Construction of the New Bridge The new bridge will be a 343 foot, three-span structure consisting of two interior bents constructed in the water near the river banks. Class II rip rap and 1-foot earth berms will be used to stabilize the structure on either side. The structure will have 63 inch modified bulb tee girders with metal stay-in-place forms and a composite deck, as well as 42 inch concrete barrier rails and guardrail along the roadway. The new bents will be constructed from Causeway #1 and #3, and the girders will be set with a crane utilizing these causeways. The cumulative number of days where in-channel work disturbs the river substrate is expected to be no more than two weeks. 2.4. Conservation Measures The following measures will be incorporated into the design and construction of the Action to avoid and/or minimize effects to the CFS. The NCDOT will adhere to "Design Standards in Sensitive Watersheds" (15A NCAC 04B.0124) as follows: • Erosion and sedimentation control measures, structures, and devices within a sensitive watershed shall be so planned, designed and constructed to provide protection from the runoff of the 25-year storm which produces the maximum peak rate of runoff as calculated according to procedures in the "Erosion and Sediment Control Planning and Design Manual" or according to procedures adopted by the NCDOT. • Sediment basins within sensitive watershed shall be designed and constructed such that the basin will have a settling efficiency of at least 70 percent for the 40 micron (0.04mm) size soil particle transported into the basin by the runoff of the two-year storm which produces the maximum peak rate of runoff as calculated according to procedures in the `Brosion and Sediment Control Planning and Design Manual" or according to procedures adopted by the NCDOT. • Erosion and sedimentation control measures will include the use of flocculants in appropriate areas to improve the settling of sediment particles and reduce turbidity levels in construction runoff. The use of flocculants will conform to Division of Water Resources approved product list. • Newly constructed open channels in sensitive watersheds shall be designed and constructed with side slopes no steeper than two horizontal to one vertical if a vegetative cover is used for stabilization unless soil conditions permit a steeper slope or where the slopes are stabilized by using mechanical devices, structural devices or other acceptable ditch liners. In any event, the angle for side slopes shall be sufficient to restrain accelerated erosion. Provide ground cover sufficient to restrain erosion for any portion of a land-disturbing activity in a sensitive watershed within 14 calendar days following completion of construction or development. As the project is located in an Environmentally Sensitive Area, special procedures will also be used for clearing and grubbing and grading operations. This also requires special procedures to be used for seeding and mulching and staged seeding within the project. The Environmentally Sensitive Area shall be defined as a 50-foot buffer zone on both sides of the stream or depression measured from top of streambank or center of depression. • Clearing and Grubbing In areas identified as Environmentally Sensitive Areas, the contractor may perform clearing operations, but not grubbing operations until immediately prior to beginning grading operations as described in Article 200-1 of the Standard Specifications. Only clearing operations (not grubbing) shall be allowed in this buffer zone until immediately prior to beginning grading operations. Erosion control devices shall be installed immediately following the clearing operation. • Gradin� Once grading operations begin in identified Environmentally Sensitive Areas, work shall progress in a continuous manner until complete. All construction within these areas shall progress in a continuous manner such that each phase is complete and areas are permanently stabilized prior to beginning of next phase. Failure on the part of the contractor to complete any phase of construction in a continuous manner in Environmentally Sensitive Areas will be just cause for the Engineer to direct the suspension of work in accordance with Article 108-7 of the Standard Specifications. • Seedin� and Mulching Seeding and mulching shall be performed in accordance with Section 1660 of the Standard Specifications and vegetative cover sufficient to restrain erosion shall be installed immediately following grade establishment. Seeding and mulching shall be performed on the areas disturbed by construction immediately following final grade establishment. No appreciable time shall lapse into the contract time without stabilization of slopes, ditches and other areas within the Environmentally Sensitive Areas. • Stage Seeding The work covered by this section shall consist of the establishment of a vegetative cover on cut and fill slopes as grading progresses. Seeding and mulching shall be done in stages on cut and fill slopes that are greater than 20 feet in height measured along the slope, or greater than 2 acres in area. Each stage shall not exceed the limits stated above. The following are additional measures intended to further reduce deleterious construction related effects to the waterway: • An offsite detour will be utilized, with no expected improvements to the detour route. • Bridge length will increase from 330 feet to at least 343 feet, with a 120-foot center span, resulting in two bents in water which will be a net decrease in the number of bents in the water compared to the existing bridge. • The hydraulic opening will be increased below the 100-year storm level. • Concrete footings and piles will be removed to one foot below mud line. • Concrete wrapping for slope protection will be removed. • No direct discharge of deck drains over water will be allowed. � 2.5. Interrelated and Interdependent Actions A BO evaluates the effects of a proposed Federal action. For purposes of consultation under ESA §7, the effects of a Federal action on listed species or critical habitat include the direct and indirect effects of the action, plus the effects of interrelated or interdependent actions. "Indirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration" (50 CFR §402.02). In its request for consultation, the USACE did not describe, and the Service is not aware of, any interrelated or interdependent actions to the Action. Therefore, this BO does not further address the topic of interrelated or interdependent actions. 3. STATUS OF SPECIES This section summarizes best available data about the biology and current condition of Cape Fear Shiner (CFS, Notropis mekistocholas) throughout its range that are relevant to formulating an opinion about the Action. The Service published its decision to list CFS as endangered on September 25, 1987 (52 FR 36034-36039). 3.1. Species Description The CFS is a small (approximately two inches long) Cyprinid first described by Snelson (1971). Its body is flushed pale silvery yellow, with a black band running along the side. The fins are yellowish and somewhat pointed. The upper lip is black, and the lower lip has a thin black bar along its margin. 3.2. Life History Though Snelson (1971) described the CFS as an herbivore due to its unique intestine morphology, Pottern and Huish (1985) observed that captive CFS fed on both plant and animal material. In stomach content analysis of wild CFS, Groves (2000) found that detritus was by far the most frequently encountered material (79% of the stomachs examined), with smaller percentages of stomachs containing algae (31 %), plant material (21 %), and invertebrates (10%), thus leading to the conclusion that CFS are omnivores. CFS are broadcast spawners, and spawning by captive and wild populations of CFS begins in early spring and can run through summer (Groves 2000). Reproductive maturity occurs after one year (Groves 2000), and captive CFS have lived for up to 7-8 years (Groves 2004). The CFS is most often found in rocky pools and runs adjacent to riffles in wide, shallow segments of rivers with gravel, cobble and/or boulder substrates with an open forest canopy and abundant water willow (Justicia), riverweed (Podostemum), stream mosses (Fontinalis), and filamentous green algae. Adults and large juveniles may also occupy the lower reaches of some major tributary creeks, at least temporarily. The CFS may also be found in low-gradient sand- dominated rivers with minimal rock riffle habitat, albeit in lower numbers and presumably 5 moving between more rocky sections of water. CFS are usually found in mixed schools with other shiners and usually comprise only a small fraction of total fishes caught (Pottern 2009). 3.3. Numbers, Reproduction, and Distribution As an endemic to the upper Cape Fear River Basin of the Central Piedmont of North Carolina, the CFS has always had a restricted range (USFWS 2017). It is difficult to estimate the population size or to accurately assess population stability or trends due to the different sampling techniques and sampling areas over the decades (USFWS 2011). However, Table 3-3 provides a list of the species abundance trends among the four river systems the species inhabits. Table 3-3: Summary of CFS collection history and abundance by river segment (per Pottern 2009), with additional unpublished data from North Carolina Wildlife Resources Commission (2008-2016). River Segment Miles 1949-1983 1984-1986 1987-2006 2007 2008-2016 (including tributaries) Haw River 17.4 none none rare rare not Saxapahaw to surveyed Bynum Dam Bynum Dam to 4.7 rare none rare none not Jordan Lake surve ed Robeson Creek to 4.9 uncommon none none none not Jordan Lake Pool surve ed Rocky River 16.0 common rare none none uncommon Siler City to Rocky River H dro Dam Rocky River Hydro 5.5 common common common common common Dam to Deep River Deep River 21.6 none none none none not Randleman to surveyed Colerid e Dam Coleridge Dam to 18.9 none rare uncommon rare not Hi h Falls Dam surve ed High Falls Dam to 21.9 none rare uncommon common common Carbonton Dam Carbonton Dam to 22.0 none uncommon uncommon uncommon common Rock River Rocky River to 3.5 none common common common common Lockville Dam Lockville Dam to 0.3 none uncommon uncommon common not US-1 surveyed Cape Fear River 12.7 none none none none not Confluence of Cape surveyed Fear, Deep, and Haw River to Buckhorn Dam Buckhorn Dam to 14.0 uncommon rare none none not Lillington surveyed Lillington to Erwin 11.5 none none none rare not surve ed "rare = average 1 to 4 per collection, uncommon = average 5 to 15 per collection, common = average 16 or more per collection Currently, the approximate known range of the CFS extends from the SR 1545 bridge on the Haw River in Chatham County and from Coleridge Dam on the Deep River in Randolph County downstream to just below Erwin on the Cape Fear River in Harnett County, plus major tributaries including Rocky River in Chatham County. This overall range (excluding tributary creeks) includes approximately 135 river miles of the main stems of the four rivers. The species is common only in the Deep River between Highfalls and Moncure (48 river miles) and the lower Rocky River (5 river miles). Jordan Lake and Buckhorn Dam have impounded 18 miles of the Haw, Deep and Cape Fear Rivers, rendering portions of the rivers as unsuitable habitat. The CFS is apparently very rare or possibly extirpated in much of the remaining 64 river miles (Pottern 2009). However, in 2013-2014 an augmentation project translocated �350 CFS to a section of Critical Habitat within the Rocky River above the hydroelectric dam (USFWS 2017). Follow-up surveys in 2015 documented CFS presence and successful reproduction in the upper Rocky River (NCWRC 2015). See USFWS (2017) for additional information regarding current and past distribution of the species. 3.4. Conservation Needs and Threats The reasons for listing the CFS as endangered in 1987 were its limited distribution and therefore its susceptibility to any factor that degrades habitat or water quality in the short river reaches it inhabits — e.g. land use changes, chemical spills, wastewater discharges, impoundments, changes in stream flow, or increases in agricultural runoff (52 FR 36034-36039). Dam construction in the Cape Fear River Basin has probably been the most significant factor contributing to the species decline (USFWS 1988). Currently, it is believed there are three main conservation threats to the CFS: 1) alteration of water velocity and water levels due to dam construction and other physical alterations of rivers/creeks; 2) pollution from agricultural, municipal and/or commercial runoff; and 3) introduction of non-native fish that prey on the CFS (USFWS 2011). 4. ENVIRONMENTAL BASELINE This section is an analysis of the effects of past and ongoing human and natural factors leading to the current status of the CFS, its habitat, and ecosystem within the Action Area. The environmental baseline is a"snapshot" of the species' health in the Action Area at the time of the consultation, and does not include the effects of the Action under review. 4.1. Action Area Numbers, Reproduction, and Distribution The Action Area encompasses the site of the former Carbonton Dam. This dam was removed in December 2005 (USFWS 2017). One of the goals of the dam removal was to restore CFS habitat within formerly impounded reaches of the Deep River and its larger tributaries (McLendon's Creek, Big Governor's Creek, and Little Governor's Creek). During the dam post- removal monitoring, CFS were first collected within the Action Area in September 2007 (The Catena Group 2010). Since that time, CFS have attained common status within the Action Area (USFWS 2017). 7 4.2. Action Area Conservation Needs and Threats As the habitat quality of the formerly impounded portion of the Deep River continues to improve, the density of CFS in and around the Action Area is expected to increase (The Catena Group 2010, USFWS 2017). Although CFS habitat within the Action Area currently appears to be good quality and stable, the Action Area is potentially threatened by upstream sources of pollution and sedimentation from unrestricted livestock access, bank erosion, and loss of forested riparian buffers (Jones 2009). 5. EFFECTS OF THE ACTION This section analyzes the direct and indirect effects of the Action on the CFS, which includes the direct and indirect effects of interrelated and interdependent actions. Direct effects are caused by the Action and occur at the same time and place. Indirect effects are caused by the Action, but are later in time and reasonably certain to occur. Our analyses are organized according to the description of the Action in section 2 of this BO. 5.1. Effects of Removal of the Existing Bridge The use of temporary rock causeways for existing bent removal will directly affect CFS habitat in the Deep River by compacting the substrate and potentially altering the river's flow patterns. However, these effects to CFS will be temporary and likely sub-lethal. The species response to the effects at the individual level is likely not quantifiable. Although not extending entirely across the channel so as to totally block movements, the presence of causeways may temporarily hamper CFS movements under certain flow conditions. Causeway #2 will extend approximately half way across the river and will be in place for approximately a week. Causeways #1 and #3 will cumulatively block less than half of the river width, but will be in place for up to 6-7 months. Upstream or downstream movements of CFS will likely be hindered temporarily by the disturbance created during placement of rock for the causeways and while bents are removed. The estimated time for the three bents in the water to be removed is from a few days up to a week each. While these effects would likely be sub-lethal and short in duration, they could occur during the important spawning season, and thus affect future recruitment success. The placement and removal of the temporary rock causeways will disturb sediment which will redeposit downstream within CFS habitat. While this small amount of sedimentation is likely sub-lethal, if it occurs during the spawning season, reproduction could be affected. Some portion of the Action Area could be denied as a spawning area. Of greater concern is prolonged erosion of the disturbed area on and along the banks of the stream where the existing bridge abutments will be excavated for removal. A major storm event could erode soil from within this disturbed area and wash it into the stream, potentially interfering with respiration, feeding, or spawning and otherwise degrading habitat. However, to avoid or minimize the potential for this effect, NCDOT has developed stringent erosion control measures (see Section 2.4) which greatly minimize sediment entering the stream. In the unlikely event of catastrophic failure of erosion control measures, the effects are still likely sub-lethal. Given the high mobility of the species, CFS could temporarily relocate to areas of better habitat. All likely sub-lethal effects addressed : in this section and the following section are described as sub-lethal due to the expectation that the effect would be limited to temporary behavioral modification only. 5.2. Effects of Construction of the New Bridge The construction, use, and removal of temporary causeways for placement of new (but fewer) bents in the channel will directly affect CFS and its habitat in the Deep River in the same ways as described in Section 5.1. Also, the upstream or downstream movements of CFS will likely be temporarily hampered by disturbance while new bents are constructed. Again, these effects are expected to be sub-lethal, and the response of the species at the individual level is likely not quantifiable. The greatest potential for adverse effects is erosion of the disturbed soil on and along the banks of the river and approach road while the new bridge is constructed. A major storm event could erode soil from within the disturbed construction area and wash it into the stream, potentially interfering with respiration, feeding, or spawning and otherwise degrading habitat. However, stringent erosion control measures (see Section 2.4) incorporated as part of the Action minimize the amount of sediment entering the stream and thus affecting CFS. The reduction of the overall number of bridge bents in the channel (from five to two) will ultimately have beneficial effects. Given that in-channel bents can trap debris during high flows and can change stream hydraulics in the immediate vicinity of the structure (causing scour and deposition), the reduction of the number of in-channel bents is expected to reduce the bridge's effects on stream flow patterns. Also, given that large debris piles must often be removed from in-channel bents (creating additional channel disturbance and downstream sedimentation), the reduction of the number of in-channel bents will thus reduce future disturbance from debris removal. Lengthening the new bridge from 330 feet to 343 feet will allow the river to access more of its floodplain and thus potentially reducing downstream bank scouring and sedimentation effects on CFS. 6. CUMULATIVE EFFECTS For purposes of consultation under ESA §7, cumulative effects are those caused by future state, tribal, local, or private actions that are reasonably certain to occur in the Action Area. Future Federal actions that are unrelated to the proposed action are not considered, because they require separate consultation under §7 of the ESA. We are not aware of any non-Federal actions in the Action Area that may affect CFS. Therefore, cumulative effects are not relevant to formulating our opinion for the Action. 7. CONCLUSION In this section, we summarize and interpret the findings of the previous sections (status, baseline, effects, and cumulative effects) relative to the purpose of a BO under §7(a)(2) of the ESA, which is to determine whether a Federal action is likely to: a) jeopardize the continued existence of species listed as endangered or threatened; or b) result in the destruction or adverse modification of designated critical habitat. � "Jeopardize the continued existence" means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species (50 CFR §402.02). The overall range of the CFS (excluding tributary creeks) is approximately 135 river miles of the main stems of four rivers. The Action Area represents approximately 0.2% of the current range of the species. The habitat within the Action Area appears to be good and stable, and CFS have become common in and adjacent to the Action Area. Although the Action will have some adverse effects on CFS from behavioral modification resulting from temporary habitat alteration, sedimentation, and temporary disturbance during construction, the effects are not expected to result in mortality. Although the Action is expected to take 9-10 months to complete, the actual in-water work where the river substrate is actively disturbed is cumulatively expected to be no more than two weeks. Therefore, the adverse effects are expected to be temporary in nature. Though some portion of the Action Area may be temporarily denied to CFS for use in feeding, movement, or spawning, the species mobility will allow it to relocate to other suitable habitat during the short time of disturbance. The Action incorporates many construction-related conservation measures which will further reduce the potential to adversely affect CFS. The Action also has important long-term beneficial effects when compared to the existing structure which will be removed. Overall, the effects of the Action are not biologically meaningful relative to the species' populations range wide and the species' conservation needs. After reviewing the current status of the species, the environmental baseline for the Action Area, the effects of the Action and the cumulative effects, it is the Service's biological opinion that the Action is not likely to jeopardize the continued existence of the CFS. 8. INCIDENTAL TAKE STATEMENT ESA §9(a)(1) and regulations issued under §4(d) prohibit the take of endangered and threatened fish and wildlife species without special exemption. The term "take" in the ESA means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" (ESA §3). In regulations at 50 CFR § 17.3, the Service further defines: •"harass" as "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering;" •"harm" as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering;" and •"incidental take" as "any taking otherwise prohibited, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 10 Under the terms of ESA §7(b)(4) and §7(0)(2), taking that is incidental to and not intended as part of the agency action is not considered prohibited, provided that such taking is in compliance with the terms and conditions of an incidental take statement (ITS). For the exemption in ESA §7(0)(2) to apply to the Action considered in this BO, the USACE must undertake the non- discretionary measures described in this ITS, and these measures must become binding conditions of any permit, contract, or grant issued for implementing the Action. The USACE has a continuing duty to regulate the activity covered by this ITS. The protective coverage of §7(0)(2) may lapse if the USACE fails to: • assume and implement the terms and conditions; or • require a permittee, contractor, or grantee to adhere to the terms and conditions of the ITS through enforceable terms that are added to the permit, contract, or grant document. In order to monitor the impact of incidental take, the USACE must report the progress of the Action and its impact on the species to the Service as specified in this ITS. 8.1. Amount or Extent of Take This section specifies the amount or extent of take of CFS that the Action is reasonably certain to cause, which we estimated in the `Bffects of the Action" section of this BO. We reference, but do not repeat, these analyses here. The Service anticipates that the Action is reasonably certain to cause incidental take of individual CFS consistent with the definition of harass resulting from removing the existing bridge and constructing the new bridge (see section 5.1 and 5.2). However, we believe that incidental take for this species is difficult to determine. The likely form of take would occur as harassment due to temporary disturbance and/or temporary habitat degradation resulting in behavioral modification of CFS. CFS movements, breeding, feeding, or sheltering could be temporarily disrupted. Incidental take resulting from behavioral modification would be very difficult to determine and monitor in a small, mobile aquatic species. Actual habitat degradation may be detectable, but knowing whether a specific degradation actually affected the species would be difficult to determine. Also, there is no practical way to know the number of CFS that may be present within the Action Area at any given time. Therefore, it is not possible to base the overall amount of incidental take on numbers of individual fish. Due to the difficulty of detecting take of CFS caused by the Action, the amount or extent of take will be defined by using acres of CFS habitat as a surrogate measure. The Action Area contains approximately 3.3 acres of suitable habitat for CFS. Therefore, the amount or extent of take of CFS caused by the Action is all CFS harassed within the 3.3 acres of suitable habitat contained in the Action Area. The USACE will monitor the extent of taking using this surrogate measure (see Section 8.4). 8.2. Reasonable and Prudent Measures The Service believes that no reasonable and prudent measures are necessary or appropriate to minimize the impact of incidental take caused by the Action on CFS. Minor changes that do not alter the basic design, location, scope, duration, or timing of the Action will not reduce incidental 11 take below the amount or extent anticipated for the Action as proposed. Therefore, this ITS does not provide RPMs. 8.3. Terms and Conditions No reasonable and prudent measures to minimize the impacts of incidental take caused by the Action are provided in this ITS; therefore, no terms and conditions for carrying out such measures are necessary. 8.4. Monitoring and Reporting Requirements In order to monitor the impacts of incidental take, the USACE 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(i)(3)). This section provides the specific instructions for such monitoring and reporting (M&R). As necessary and appropriate to fulfill this responsibility, the USACE must require any permittee, contractor, or grantee to accomplish the monitoring and reporting through enforceable terms that are added to the permit, contract, or grant document. Such enforceable terms must include a requirement to immediately notify the USACE and the Service if the amount or extent of incidental take specified in this ITS is exceeded during Action implementation. M&R 1. Erosion Control Measures Failure. If erosion control measures catastrophically fail (e.g. during a major storm event), the Service must be immediately notified. If sedimentation effects are observed outside the Action Area, the amount or extent of incidental take specified in this ITS has been exceeded and the Service must be contacted immediately. 9. CONSERVATION RECOMMENDATIONS §7(a)(1) of the ESA directs Federal agencies to use their authorities to further the purposes of the ESA by conducting conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary activities that an action agency may undertake to avoid or minimize the adverse effects of a proposed action, implement recovery plans, or develop information that is useful for the conservation of listed species. The Service offers the following recommendations that are relevant to the listed species addressed in this BO and that we believe are consistent with the authorities of the USACE. 1. Provide resources for additional survey and monitoring work of CFS habitat within the Deep River Watershed. lO.REINITIATION NOTICE Formal consultation for the Action considered in this BO is concluded. Reinitiating consultation is required if the USACE retains discretionary involvement or control over the Action (or is authorized by law) when: a. the amount or extent of incidental take is exceeded; 12 b. new information reveals that the Action may affect listed species or designated critical habitat in a manner or to an extent not considered in this BO; c. the Action is modified in a manner that causes effects to listed species or designated critical habitat not considered in this BO; or d. a new species is listed or critical habitat designated that the Action may affect. In instances where the amount or extent of incidental take is exceeded, the USACE is required to immediately request a reinitiation of formal consultation. 11.LITERATURE CITED Catena Group. 2010. Carbonton Dam removal final monitoring report: Year-5 mollusk surveys and aquatic species surveys overview. Report to Restoration Systems, LLC. 17 pp. Groves, J.D. 2000. Progress report: Cape Fear Shiner. Notropis mekistocholas at the North Carolina Zoological Park - Year 2000. Report for U.S. Fish and Wildlife Service. 3 pp. Groves, J.D. 2004. Progress report: Cape Fear Shiner, Notropis mekistocholas at the North Carolina Zoological Park - Year 2004. Report for U.S. Fish and Wildlife Service. 5 pp. Jones, B. 2009. Habitat surveys of the Deep River corridor, Cape Fear Shiner habitat assessment. Final report, US Fish & Wildlife Service Grant Agreement 401818G583. North Carolina Wildlife Resources Commission, Raleigh, NC. 24 pp. NCWRC. 2015. Cape Fear Shiner conservation: Augmentation in the Rocky River (attachment A to annual Section 6 report). North Carolina Wildlife Resources Commission, Raleigh, NC. 9pp. Pottern, G.B and M.T. Huish. 1985. Status survey of the Cape Fear Shiner Notropis mekistocholas. Report for U.S. Fish and Wildlife Service. 44 pp. Pottern, G. 2009. 2007 Status update of the Cape Fear Shiner Notropis mekistocholas. Report for the North Carolina Wildlife Resources Commission. 27 pp. Snelson, F.F. Jr. 1971 Notropis mekistocholas, a new herbivorous cyprinid fish endemic to the Cape Fear River Basin, North Carolina. Copeia 1971:449-462. U.S. Fish and Wildlife Service. 1988. Cape Fear Shiner recovery plan. Atlanta, GA. 19 pp. U.S. Fish and Wildlife Service. 2011. Draft Cape Fear Shiner (Notropis mekistocholas) Strategic Habitat Conservation Framework, Raleigh, NC. 27 pp. U.S. Fish and Wildlife Service. 2017. Cape Fear Shiner (Notropis mekistochalas) 5-year review: Summary and evaluation, Raleigh, NC. 25 pp. + app. 13