20181598_Att. 44 - E-mail from Gary Jordan, FWS,_20160222

Gary JordanlR41�WSlDOI
IOIfl71201D U4:32 PM
Dear Merger Teazr�,
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Attachment 44
mspierceQncdnt.go�, TYa�is.WilsonQncwildliFc.vrg,
kcomptan r� fs.fed.us, renee.gledhill-earley[rr�rscdcr.go�,
ron,iucasQdot.go�, [e-mail],
PetaSanjaminlR41FWS1I]Q1Ql�WS, John
S-IammondlR4fFW51D�i@FWS, Wiil
Mcl7eantnanlft41FW5I�DI@RWS, [e-mail],
Subject �_ t {} ] � �avelock Sygass
I am sending th�s email to �hat�ge, clarify and justify the USFWS's position an the Havelock
Bypass, wiYh regard ta the preferred Aiternatirre 3 and the impending Section 7 cansul�atian far
the red-cflckaded waadpecker [RCW}. The impet�zs for this chazage a�position is that we now
ha�e sig�ificant new infvxmation which has forced thc USFWS ta reca�sider th� effects to t�c
RCW. My earliest inval�ement vvith this praject goes back ta a Fei�n�azy 3, �.003 meeting held in
Chapel HiII at the offtc� �f the Southe�� Environmental Law Center. At that meeting were
se��ral representati�es frorn the NCD�T, �TS Forest �ervice, USFWS, FHWA as well as
representati�es fram at least three envir�nmental groups and sarne cansultants. Atnong several
issues discussed was the tapic af contiuued rnanagement for RC�Ns �ia prescribed burnin� of the
USFS lands which would he isalated and sandwi�hed between the nr.w l�ypass and Haveloclr.
From the meeting notes, there was reference ma�c to a �oYru7�itment from NCDaT to warlc v,�th
the LTSFS to continrxe rnanagir�g th� isalated LTSFS Iands through pres�ribed fire. Based on my
rnemory af the meeting, any personal notes a�the meeting, and the lneeting nninutes, there was
the �u�cderstanding that prescribad �re ma�agement for RCWs would contin�e on USI'S Ia�ds
east of the new bypass.
During suhsequent discussi�ns and meetings regarding Seotion 7 issues, the USF�S braught up
serious c�ncerns (e.g. demagraphi� ��nnectivity of isalated RCW groups, Etc.). Far a while, we
maintained that there was the possibitity of a jeopardy biological apinion. Several af us w�rlced
diligently an addressing those issues, and around 2007 I came t� the conclusian �supparted l�y �ny
zxianagemen� and oixr f�rmer RCW coordinatar, Ralph Cvsta}, that a jeopardy apinion was na
Ianger a possibility. It was detern�ed that there wauid be no talce an any RCViTs at fhe foraging
partition, �raup, and neighborhoad analysis levels fra�n direct effects, All faraging partiiions
woutd stzll zneet t�te Standard far Managed Stai�ility Guidelines p�st proj�ct, ihus avoiding take
from direct effects. We stated tl�at a f�rmal Scction 7 con��tatian rnay not be needed, arad the
consultation might he handied infoz7maliy. Hawever, this pasitian was hased an tha premise that
con�inued management for RCWs tl�rough prescz�bed h�uning would still occur on iTSFS lands
east of th� new bypass. Tha�: was a criti�al paint in our thin�Cing at that time. It appears that this
pi�voial premise is no ianger valid.
�n Qctaber 6, ZOIO, se�er•aI L1SF�TS representatives rnet with several USFS representati�res from
the Croatan National Fvrest an� their Asheville office. I� preparation £ar that meeting, I i3ad
same discussians with different NCD�T staff regarding th� issue of accasionally clasing (once
every 2-4 years) the new bypass to altow £or prescribed bur�ng ta o�cur adjacent to the raad. i
vvas tald that t�is wil� nai likely lae altowed. This was new informatian far me. Alsa, during tlae

October 6, 2010 meeting, the USFS iuformed the USFWS that ALternative 3 would preciude any �t r�� odd.�
prescribed buming east of the bypass - regazdless of whethex NCDOT could close the road or not. J���psfs I•k�
TMs was also new information and appazently different from the USFS's position in 2003. In �_ e ��r�+
addiUon, the bypass wouLd make it more difficult to even burn the USFS lands west of the . d"�d� �,..��
bypass. b�"�"y ;r ti^'e
n" d�s�J,
Although there would still be no adverse effect on RCWs from direct effects, it now appeaz�s �`�'� `� � M�
there will be substantial adverse effect from indirect effects due to [he preclusion of active N
management through prescribed fire. Altemative 3 bisects no less ffian six RCW foraging
parfitions and tlu�ee Habitat Management Areas (HMAs)(az�eas where RCW recruitment clusters
were planned). Without prescribed bunvug, all the habitat to the east of fhe new bypass within
these six partitions and tluee HMAs would eventually be lost to midstoty. and hazdwood
eneroachment. What this means is some or al] of these nine azeas would not have sufficient
suitable habitat required to support an active group of RCWs. At this tune no analysis has been
conducted to determine which of the six� foraging partitions and three HMAs would still retain
enough habitat to support active groups. This analysis would nced to be conducted for a .
Biological Assessment. At a minimum, CNF 902 wouLd be a complete loss. I suspect several of
Yhe other ones would be as well. �
The RCWs at the Goatan National Forest aze part of the Coastat North Cazolina Primary Core
Population of the Mid-Atlanfic Coastal Plain Recovery Unit. As per the 2003 RCW Recovery
Plan, this prunary core population must obtain 3S0 potentia] breeding groups (PBGs) in order to
be considered recovered. The Croatan National Forest must contribute 169 PBGs towazds the
overall goal of 350. At the Octobcr 6, 2010 meeting the USFS told the USFWS that al] six of
the foraging partitions and all three FIMAs are absolutely essential for the USFS to meet its
required goal of 169 PBGs. This was new informarion. For reasons too detailed to discuss here,
the USFWS previously believed that the USFS had some "wiggle room" in where tbey could
grow additional RCW groups, Though we knew that all of the six parfitions and three HMAs
were very unportant, this was the fust time we had clearly heazd from the USFS that they would
not be able to recover the population without them. The bottom line is that without prescribed
fire within these azeas, the primary core population will be precluded from recovery. Although L �' `f 't"�'"`�
cannot definirively say this prior to completion of formal Secfion 7 eonsultation, it appeazs we '��" °�"' f`
ktave a rationale for a Jeopardy Biological Opinion. Just to cover myself, I'll call it a"Potential" "` �°"qB` Mf
a �e�,;��y
Jeopardy Biological Opinion. Regardless, it is a serious problem for NCDOT.
Another piece of new informafion is that three formerly inactive RCW groups just recently �
became active - GNF 902, CNF 901 and CNF 58. There were no active groups within the project
footprint in 2008. These three groups appazently became acfive again in response to some good
management ('uicluding fire) that the USFS recently conducted. �
Another piece of new information that I heazd will become available soon is an addendum to the
7ndirecf and Cwnulative Effects Study. I heaz [hat it speaks to land use changes azound the USFS
land parcels. Pll reserve judgment on that unliL I actually see it, but it would have the potential to
strengthen our case for a potential jeopazdy opinion.

From the USFS I obtained a copy of a document enfitled "Final Red-cockaded Woodpecker
Mitigation Plan for the Croatan Wetland Mitigation Bank", dated 7une 23, 2008. This document
was prepued by Dr. J.H. Carter III & Associates, Inc. fa the NCDOT. If I understand the
puxpose of the document correctly, it was intended to address USFS compensation requirements
for PETS species. While I believe that it is a good and prudent exercise to evaluate the potenfia(
for growing RCWs on the Croatan Wetland MiCigation Bank, I do not want anyone to �
misconstrue this "Woodpecker Mitigation Plan" as alleviating NCDOT of iYs Secfion 7 issues
(i.e. a potentiat jeopazdy opinion). As I have said on many occasions, Section 7 of the
Endangered Species Act is not set up to do compensatory mitigation in the same sense as Secfion
404 requirements for wetland mitigation. Adverse effects in SecGon 7 aze often not quantifiable
in the same sense as impaete under Section 404 of the Clean Watec AcL I am noC knocking the
document, but the title may cause some people to conflate ox eonfuse Section 7 requirements
with other agencies legal requirements.
Again, the bottom line is that the USFWS believes that Ntemative 3 may lead to a Jeopardy
Biological Opinion from-substantial indirect effects caused by the bypass precluding necessary
prescribed fire management of up to six RCW Poxaging habitat parfitions and tlu�ee HMAs which
were planned for establishing RCW recruitment clusters. At this time I do not know of any
viable and practical solutions to this problem. However, I know that the discussions will
continue.
Gary Sordan -
US Fish and Wildfife Service
PO Box 33726 �
Raleigh, NC 27636-3726 �
Phone [phone] ext. 32
Fax [phone] �
[e-mail]