20041713 Ver 1_USFWS Comments_20050405

United States Department of the Interior
FISH AND WILDLIFE SERVICE
Raleigh Field Office
Post Office Box 33726
Raleigh, North Carolina 27636.3726
March 28, 2005
Mr. Mickey T. Suggs
U.S. Army Corps of Engineers
Wilmington Regulatory Field Office
P.O. Box 1890
Wilmington, North Carolina 28402-1890

Attention: Action ID No. 200401077, Lewis Holding/Nassau Corporation, Carteret County, North Carolina
Dear Mr. Suggs:
This provides the comments of the U. S. Fish and Wildlife Service (Service) on subject Public Notice (PN),
dated February 24, 2005. The applicant, Mr. Lewis Holding for Nassau Corporation, has applied for a
Department of the Army (DA) Permit to discharge fill material into 0.1 17 of an acre of wetlands to facilitate
residential home construction on five lots in Dolphin Ridge and Royal] Oaks Subdivisions. These comments
are submitted in accordance with provisions of the Fish and Wildlife Coordination Act (48 Stat. 401, as
amended; 16 U.S. C. 661 et. seq.) and section 7 of the Endangered Species Act (ESA), as amended (16 U. S.
C. 1531-1543). They are to be used in your determination of compliance with 404(b)(1) guidelines (40 CFR
230) and in your public interest review (33 CFR 320.4) as they relate to protection of fish and wildlife
resources.
Proposed Actions and Anticipated Impacts
The applicant proposes to place 625 cubic yards of fill in jurisdictional wetlands at five sites. The fill would
impact a total of 0.1 17 of an acre (5,105 ft2). The five sites are within two residential subdivisions, Dolphin
Ridge and Royal] Oaks, in the western part of Bogue Banks, a barrier island, within the Town of Emerald Isle.
The individual fill areas are relatively small ranging from 0.0051 of an acre (Lot 6, Royall Oaks) to 0.0713 of
an acre (Lot 93, Dolphin Ridge). The wetland communities to be impacted include maritime shrub swamp (2
sites), maritime swamp forest (2 sites), and interdune pool (1 site). All work would be accomplished by
bulldozers, dump trucks, and track or backhoes. The purpose of the fill is to create lots suitable for residential
development consisting of a single family home and driveway.
The PN contains a compensatory mitigation plan prepared by Spangler Environmental, Inc., of Raleigh. At
three sites within the subdivisions the applicant proposes to create wetlands. At two locations within Royall
Oaks, areas of interdune pond, totally 0.082 of an acre, would be created. At one site within Dolphin Ridge,
an area of maritime swamp forest, 0.038 of an acre, would be created. The three creation sites, totaling 0.12 of
an acre, would be extensions of natural, adjacent wetlands. The elevation of the adjacent upland areas would
be lowered to a typical profile consisting of three zones: an obligate zone at the water table, a facultative wet
zone approximately six inches above the water table, and a facultative zone approximately one foot above the
water table. Revegetation would be attempted initially by natural colonization from the adjacent wetland. If
natural recruitment did not occur, planting of wetland species would be undertaken. Jurisdictional wetland
hydrology (a water table within 12 inches of the surface for 12.5% of the growing season) is expected to be
established by excavation of uplands down to appropriate level above the existing water table. Wetland
compensatory mitigation would be provided at 1:1 ratio solely by the created wetlands. The plan has no
provisions for the perpetual protection of the wetlands created as compensatory mitigation.
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The natural communities on the uplands to be converted to wetlands are not described. However, the plan
notes (p. 6) that much existing vegetation outside the developed lots is the original, predevelopment growth.
The only upland community discussed in the mitigation plan is the maritime evergreen forest which occurs on
old, stabilized sand dunes.
The PN states that a Nationwide Permit 26 (discharges into headwaters and isolated waters) was issued in
1990 for the initial construction of Dolphin Ridge. This permit authorized impacts to 3.77 acres of wetlands.
The PN also states that, at the present time, it is uncertain how much of the permitted impacts have occurred.
Additional fill was authorized for the infrastructure of Royall Oaks. As part of the authorization for both
developments, the permits were conditioned to incorporate covenants to restrict and prohibit additional
impacts to jurisdictional water and wetlands. Nassau Corporation has recorded the covenants with the Carteret
County Register of Deeds. The PN states that the authorization of the work being proposed would modify the
original permit conditions as they pertain to the restrictive covenants, or declarations, related to activities in
jurisdictional wetlands within both developments.
Resources at Risk
The Service is familiar with the project area. By letter dated August 14, 2002, we provided comments to you
on an After-the-Fact permit application (AID #200200769) by Mr. Holding for wetland fill in Lot 113 on
Outrigger Court within the Dolphin Ridge Subdivision. Our comments stated that the project area is located in
a dune and swale system. We noted that while the impacted wetland was mostly shallow open water, the site
and similar depressional areas may have supported, prior to disturbance, a maritime swamp forest. This
community is known to occur on Duckston soil. The current PN notes that the underlying hydric soil in wet
swales of the project area is Duckston fine sand which is frequently flooded. The current mitigation plan
states that elevated dunes separated by depressional wetlands are prevalent throughout both subdivisions. The
PN states that the project sites are within a developed maritime ridge and swale forest system where the
majority of canopy trees have been timbered or have dies due to damage from past hurricanes.
For the current PN it is necessary to consider both the wetlands which would be filled and the uplands which
would be lost in the creation of compensatory wetlands. The wetlands in question may have trees, shrubs, or
consist of open water. While the nomenclature of barrier island natural communities varies in different
publications, the mitigation plan follows the community names of Schafale and Weakley (1990). The Service
supports this nomenclature and the community descriptions given in the plan. A maritime evergreen forest
would be an upland community. A maritime swamp forest, maritime shrub swamp, and interdune ponds
would be wetland communities. However, Bellis (1995, p. 4) considers maritime forest to include a broader
range of communities, i.e., any woody vegetation growing near the ocean. He notes that the North Carolina
Coastal Resources Commission defines maritime forest as woodlands that have developed under the influence
of salt spray on barrier islands and estuarine shorelines, occur on sandy soil, and are adapted to high wind
velocities. In these comments we will distinguish between the maritime evergreen forest (uplands) and the
maritime swamp forest (wetland), whenever necessary. However, these communities can provide similar
ecological and societal values, and the term maritime forest will refer to both communities. The maritime
shrub community is considered a successional stage in the development of maritime forests among sand dunes
(Frankenberg 1997, p. 57).
Maritime forests provide important fish and wildlife habitat on the barrier islands. The vertebrate fauna of
Southern Atlantic coast maritime forests is discussed by Bellis (1995, pp. 50-60) who ( Bellis 1995, p. 520)
lists four turtles, two lizards, and 10 snakes that may occur in the maritime forests of North Carolina. Small,
isolated pools in forested areas can provide critical breeding habitat for frogs, toads, and salamanders. These
areas serve as breeding habitat, migratory resting areas, and overwintering areas for a variety of birds. The
North Carolina Natural Heritage Program (NCNHP) database has an occurrence record for the painted bunting
(Passerine ciris) at the western end of Bogue Banks, but not in the project area. This bird is a neotropical
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migrant, summer resident of shrubby and forested areas, and a Federal Species of Concern. These woodlands
also provide habitat for the raccoon (Procyon lotor), gray squirrel (Sciurus carolinensis), gray fox (Urocyon
cinereoargenteus), white-tailed deer (Odocoileus virginianus) and other mammals, such as several species of
rodents. Fussell and Wilson (1983, p. 165) list five amphibians residing in Emerald Isle Woods, west of the
project site, with one, the eastern spadefoot toad (Rana holbrooki), as a probable resident. Fussell and Wilson
(1983, p. 165-166) listed 12 reptiles as residents of Emerald Isle Woods.
Maritime shrub communities provide important functions to the barrier islands (Frankenberg 1997, pp. 57).
Once established, these communities form an almost impenetrable thicket that isolates the sand surface. By
protect the sand surface from strong winds, the maritime shrub community stabilizes sandy areas far more
effectively than grasses (Frankenberg 1997, p. 57).
The ecological values of barrier island plant communities on Topsail Island have been considered (John J.
Hooten and Associates [hereafter JJHA] 1984). This island is roughly 20-30 miles southwest of the project
area. In discussing the maritime forest, primarily the upland forest, this report notes (JJHA 1984, p. 22) that:
"The primary value of the maritime forest is its function in stabilizing a geologically unstable
system... Excessive human demands on the freshwater lens could result in lowering the
water table, and clearing of the forest interferes with its basic functions of nitrogen-fixation,
water retention and soil stabilization. Removal can destabilize relict dunes with subsequent
damage to human structures from shifting sand dunes. Any removal or destruction will of
course eliminate habitat of many animal species. An important but not fully explored factor,
is the degree to which water can be pumped from forested dunes before they lose their
vegetative cover and stability. If the stabilizing vegetative cover is lost through fire, salt
damage or land-forming operation during development, the deforested relict dunes become
active again and migrate over the remaining forest."
The report also states (JJHA 1984, pp. 15-16) that due to the sandy soils occupied by maritime forests, one of
the prime functions of these communities is water conservation. The forest works to conserve water through
(1) an outer heat shield and reflector (the tight forest canopy); (2) a darkened dead air space (the open shaded
area between canopy and the ground); (3) a layer of insulation (leaf litter and humus); and (4) a fine-grained
absorptive bed which retains water by capillary action (sandy soil of the relict dune).
Overall, forested areas on barrier islands provide a host of ecological and social benefits. Their diversity of
plant species creates well-developed canopies which protect other plants from salt spray. This protection often
permits the survival of wildlife forage plants that would otherwise not survive on a barrier island. These
forests provide important shelter for many coastal species (JJHA 1984, p. 16). These forests serve to protect
both inland plant communities and man-made structures by intercepting the high winds of storms. Maritime
forests also perform important soil binding functions which help to stabilize dunes.
Swale areas serve to retain surface water and aid in the recharge of vital fresh groundwater reserves.
Freshwater ponds often provide the only dependable source of water for animals on barrier islands (Bellis
1995, p. 31).
Maritime habitats have been reduced along the coast and may be considered a diminishing resource. Over 20
years ago Fussell and Wilson (1983, p. 1 10) stated that maritime forests in North Carolina are rapidly being
destroyed by man. Because of their fragile nature and the length of time required for recovery, disturbances
due to human development are likely to be cumulative and largely irreversible (JJHA 1984, p. 22). The North
Carolina Natural Heritage Program (NCNHP) database for Carteret County states that both the maritime
evergreen forest and the maritime shrub swamp are "critically imperiled," or S1, in North Carolina. The
maritime swamp forest and interdune pond have dual designations of critically imperiled/imperiled, (S1/S2).
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Federally Protected Species
The Service reviewed the federally threatened and endangered species that have been reported from Carteret
County. These species can be found on our web site at < http://nc-es.fws.gov/es/cnt 1? ist/pender.html >.
Information for a more limited area around the project site is available from the NCNHP database. This
database contains occurrence records for both state and federally protected species within each U. S.
Geological Survey quadrangle (quad). The occurrence data of special status species within this quad can be
obtained on the internet at < http://ncnhp.org/Pal;es/heritagedata.html >. The project is located within the
Swansboro quad.
While some state-listed and/or FSC, such as the painted bunting, may occur in the project area, these species
do not receive the protection of the ESA. Our review indicates that the proposed fill is not likely to adversely
affect any species listed as endangered or threatened species or their formally designated critical habitat. This
finding is the same as that for fill on Outrigger Court in August 2002. Therefore, the requirements of section 7
of the Endangered Species Act are fulfilled. However, obligations under section 7 of that Act must be
reconsidered if. (1) new information reveals impacts of this identified action that may affect listed species or
critical habitat in a manner not previously considered; (2) this action is subsequently modified in a manner
which was not considered in this review; or, (3) a new species is listed or critical habitat determined that may
be affected by the identified action.
Service Concerns
The Service is concerned that the proposed fill would eliminate one interdune pond, two areas of maritime
shrub swamp, and two areas of maritime swamp forest. While we recognize the small area of proposed habitat
loss, we also recognize the unique landscape position of these areas on a barrier island and the cumulative
losses of these areas which have occurred in the past.
The Environmental Protection Agency 404 (b)(1) Guidelines state that fill material shall not be placed in
wetlands if there is a practical alternative which would have less impact on aquatic ecosystems. Those
Guidelines further specify that for non-water dependent activities proposed for special aquatic sites (e.g.
wetlands), practical alternatives are presumed to exist unless clearly demonstrated otherwise. Residential
housing is not a water-dependent activity and such structures can and should be built in uplands.
In addition to the direct loss of existing wetlands, the Service is concerned that the proposed compensatory
mitigation may eliminate valuable maritime upland habitats which are important to wildlife on barrier islands.
This current mitigation proposal may destroy important wildlife habitat to create another important type of
habitat.
There is a concern that the wetlands created by leveling uplands may not persist if the process initiates dune
migration. The consideration of barrier island development (JJHA 1984, p. 14) stated that "dunes are the
result of a fragile environmental balance (many plants may be living at the extreme of environmental
tolerances and are easily disrupted) and the ecology of the dune environment is affected by their relative
orientation, stability, distance inland and topography. The interrelationship between dune ridges and
interdune swales has been fashioned by the forces of geology and wind patterns and attempts to alter the
geographical relationship of these communities may not be successful.
Cutting away a portion of upland, or relict, dune within a ridge and swale system would not only eliminate
important upland habitat which is valuable in its own right, but would also contribute to destabilizing the dune
and may trigger dune migration. Dune migration can destroy maritime forests (Frankenberg 1997, p. 61).
Dune migration could also cover the created wetlands. We note that the interdune pond creation site on Lot 41
of Royall Oaks would create a narrow ridge of uplands where elevations fall from six feet to one foot over a
short horizontal distance. The long-term stability of the proposed contours in an area which is periodically
subject to severe storms is far from certain.
The Service is concerned that the proposed mitigation could create additional environmental damage by
creating gaps in the upland maritime forest. As the generalized patterns of wind flow across both a disturbed
and undisturbed barrier islands shows (Seneca and Broome 1981 as cited in Bellis 1995, p. 65), ocean winds
may flow over the entire island above the undisturbed forest canopy (see top figure in Attachment). However,
the removal of maritime forest creates gaps into which winds blowing from the ocean can enter. The gaps in
the canopy produced by the mitigation effort may increase the amount of salt spray entering the mitigation
area. In discussing highway construction through maritime forests on barrier islands, Bellis (1995, pp. 64-65)
wrote that clearing for the right-of-way can, in time, produce deeper salt-aerosol penetration which can
eventually result in loss of vegetative cover and stability of the dune system. The author notes (Seneca and
Broome 1981 as cited in Bellis 1995, p. 64-65) that vegetative damage was recorded on Topsail Island after a
highway right-of-way was cut through a maritime forest (see bottom figure in Attachment). Frankenberg
(1997, p. 60) also notes that windstorm damage and human development of forested areas have similar
impacts in that both create gaps in the canopy that may "expand catastrophically as trees within the stand are
killed by increased salt spray concentrations." Bellis (1995, pp. 23-25) discusses the growth inhibiting effect
of salt aerosols on barrier island vegetation. Therefore, the Service has serious concerns regarding the
potential for adverse secondary adverse impacts to vegetation surrounding both the wetland fill areas and the
wetland creation areas. The long-term viability of the vegetation surrounding these areas is uncertain.
The Service is concerned that the proposed compensatory wetland mitigation plan does not include any
wetland restoration and the proposed wetland creation would be at a one-to-one ratio. The Wilmington
Regulatory web site, < http://www.usace.army.mil/wetlands/Miti atg ion/permitting.Iitm >, discusses mitigation
ratios. As stand alone compensation, restoration, creation, and enhancement require ratios of 2:1, 3:1, and 4:1,
respectively. Wetland preservation may be combined with any of the previous types at a 10:1 ratio. The U. S.
Environmental Protection Agency (EPA) guidance of 2001 requires a 6:1 ratio for wetland creation.
The applicant has provided a detailed plan of the contours which would be created on the site, the vegetation
which would be planted (if natural colonization does not occur), the source of hydrology, the method of
ensuring hydrology in perpetuity (including a series of monitoring wells on the site), specific success criteria
for both vegetation and hydrology, and contingency measures for the failure of either vegetative and/or
hydrologic creation. Wetland creation carries a high risk of failure and the Corps' web site notes that there is
"continued uncertainty regarding the success of wetland creation projects." This site also recognizes that
wetland creation has the potential to impact valuable uplands. The EPA guidance also notes the "problematic
nature of wetland creation and the risk of failure." At the proposed creation sites, an absence of natural shade
combined with increased salt aerosol deposition could hinder revegetation. Due to the high risk of failure, the
Service does not support compensatory mitigation based entirely on wetland creation.
The Service prefers that all compensation contain a restoration component at a two-to-one ratio. If it is not
feasible to achieve all compensation by restoration, compensation may consist of two components. The first
component would be restoration at a one-to-one ratio. The second component would be any of the three other
types at one-half of the stand alone ratio given by the Corps. For example, if restoration can only be provided
at one-to-one, the second component could consist of creation, enhancement, or preservation at a ratio of
1.5:1, 2:1, or 10:1, respectively. Property preserved as compensatory mitigation should be existing, high
quality wetlands.
The Service supports much of your position provided to the applicant by letter dated March 11, 2003,
regarding the fill on Outrigger Court. You stated that the Corps was unaware of any mitigation opportunities
with the North Carolina Wetland Restoration Program within Emerald Isle or along the barrier island of Bogue
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Banks. You advised the applicant to "exhaust all onsite, in-kind practical mitigation alternatives prior to other
options." One alternative mentioned in your letter was the restoration of previously impacted wetlands. You
also recommended an examination of wetland creation possibilities. As noted, we believe compensation
should include a restoration component and continue to see the potential for certain adverse secondary impacts
with wetland creation. However, we would support the enhancement of degraded wetlands or the preservation
of high quality, at-risk wetlands within the subdivisions as a second component of compensatory mitigation.
Finally, the Service is concerned that the proposed wetland fill constitutes a violation of the conditions of
earlier DA permits. While you state that it is uncertain how much of the previously permitted wetland fill has
taken place, we assume the current permit application indicates that all previously permitted wetland fill has
occurred. If fill could still be undertaken through prior permits, it is unlikely that the after-the-fact permit for
Lot 113 on Outrigger Court in July 2002 or the current permit application would be required. If all of the
originally permitted fill has occurred and those permits were conditioned on the protection of all other
wetlands within the two developments, the current proposal would nullify previous DA permits for both
developments. The Service is troubled by the concept that DA permit conditions can be altered after the
permitted work has been accomplished. We believe that DA permit conditions, especially those related to
compensatory mitigation (including in this case prohibitions against additional fill), should not be subject to
re-negotiation or significant alterations.
Service Recommendations
While the Service has concerns about several aspects of the project, these points would be irrelevant if the
restrictive covenants imposed as conditions of previous DA permits remain in force. If the applicant accepted
the conditions of the previous DA permits and the restrictive covenants prohibiting additional impacts to
jurisdictional wetlands within the subdivisions, the current application should be denied.
The Service recommends that a DA permit not be issued for the proposed fill based on prior commitments to
prohibit additional impacts to jurisdictional wetlands. If the applicant wishes to pursue this matter further,
several important issues must be clarified. First, the applicant should provide the Corps with definitive
information on whether the previously permitted wetland fill, specially the 3.77 acres in the Dolphin Ridge
Subdivision, has been completed. Second, the Service and other resource agencies should be informed as to
whether all the wetlands above the acreage previously permitted for fill and currently existing within the two
subdivisions were intended to serve as compensatory wetlands. Third, a Public Notice should be circulated for
the formal modification of the previous DA permits. This PN would address actions taken by the applicant to
remove the restrictive covenants which have been recorded by the Register of Deeds. If these major issues are
resolved, there will be opportunities for greater discussion of avoidance and minimization of wetland impacts,
the magnitude of adverse secondary impacts, and a compensatory mitigation plan which complies with the
guidelines of the Wilmington District.
The Service appreciates the opportunity to comment on this project. Please advise us of any action taken by
the Wilmington District, Corps of Engineers. If you have questions regarding these comments, please contact
Howard Hall at 919-856-4520, ext. 27 or by e-mail at < howard hall(&ws.go_v >.
S' Ire
t
P teBenj?in
Ecologica SI Services Supervisor
Attachment

Literature cited
Bellis, V. J. 1995. Ecology of Maritime Forests of the Southern Atlantic Coast: A Community Profile.
National Biological Service. U. S. Department of the Interior. Biological Report 30. 95 pp.
Frankenberg, D. 1997. The Nature of North Carolina's Southern Coast - Barrier Islands, Coastal Waters, and
Wetlands. The University of North Carolina Press. Chapel Hill. 250 pp.
Fussell, J.O., lII. and J. Wilson. 1983. Natural Areas Inventory of Carteret County, North Carolina. CEIP
Report No. 9. North Carolina Coastal Energy Impact Program. Office of Coastal Management.
North Carolina Department of Natural Resources and Community Development, Raleigh, NC. 242
PP.
John J. Hooten and Associates. 1984. Condominiums and Barrier Islands. Report prepared for Onslow
County and The Town of Surf City. John J. Hooten and Associates. Wrightsville Beach, North
Carolina. 50 pp. + Addenda.
Schafale, M. P. and A. S. Weakley. 1990. Classification of the natural communities of North Carolina: third
approximation. North Carolina Natural Heritage Program. Department of Environment, Health and
Natural Resources [currently Dept. of Environment and Natural Resources]. Raleigh, NC. 325 pp.
Seneca, M. L. and S. W. Broome. 1981. The effects of highway construction on maritime vegetation in North
Carolina. A research report submitted to the North Carolina Department of Transportation, Division
of Highways. 73 pp.
cc: (with attachment)
John Dorney, NC Division of Water Quality, Raleigh, NC
Carolina Bellis, NC Division of Coastal Management, Raleigh, NC
Bennett Wynne, NC Wildlife Resources Commission, Kinston, NC
Rebecca Fox, USEPA, Whittier, NC
Attachment to: U. S. Fish and Wildlife Comments on Public Notice AID# 200401077
Mr. Lewis Holding for Nassau Corporation
Original Source: Seneca, M. L. and S. W. Broome. 1981. The effects of highway construction
on maritime vegetation in North Carolina. A research report submitted to the North Carolina
Department of Transportation, Division of Highways. 73 pp. As cited in: Bellis, V. J. 1995.
Ecology of Maritime Forests of the Southern Atlantic Coast: A Community Profile. National
Biological Service. U. S. Department of the Interior. Biological Report 30. 95 pp.
A. Undisturbed; no road Sound Fig. 5.2. Generalized
Ocean patterns of onshore
winds across undis-
turbed and disturbed
barrier island forest
(from Seneca and
Broome 1981).
Row
B. Disturbed; with road
A. Wind-borne spray causes y
sheared effect

D. Shearing produces new canopy angle B. Cutting highway right-of-way exposes
on exposed forest surface A forest on side of high exposed
to onshore winds

k&
ow k&
C. Exposed edge dies bacK
Fig. 5.6. Hypothetical effects of salt spray on maritime vegetation (from Seneca and Broome 1981).