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Home My WebLink About20190027 Ver 1_FWS Letter CDMSmith Orig_20190103Smith 5400 Glenwood Avenue, Suite 300 Raleigh, North Carolina 27612 tel: 919-787-5620 fax: 919-781-5730 September 24, 2018 Mr. Pete Benjamin Field Supervisor US Fish and Wildlife Service - Ecological Services Office 551-F Pylon Drive Raleigh, North Carolina 27636 Subject: Marbery Inactive Landfill Remedial Action Plan Request for Comments - Section 404/401 Permit U.S. Army Corps 404 Permitting Dear Mr. Benjamin: CDM Smith is currently coordinating with the NC DEQ Division of Waste Management and the Army Corps of Engineers regarding impacts to waters of the U.S. at the Marbery Inactive Landfill. The closed landfill in Durham County, is located east of Durham at 1223 Benbow Road and 3131 Cheek Road, Oak Grove, 27704 as shown on Figures 1 and 2, attached. Figure 1 is the USGS topographic map of the Northeast Durham Quad and Figure 2 is an aerial site map. Photos of the site and surroundings are provided as Attachment 1. Due to work in Waters of the U.S. including potential impacts to a jurisdictional stream, we are preparing a Section 404/401 permit application for this project. Per the permit application requirements, we are contacting you to determine whether the project will occur in or near an area with federally protected species or habitat. According to the NC Natural Heritage Program database (https://www.ncnhp.org/) there are four federally protected species potentially existing in the Northeast Durham Topographic Quad Map where the project is located as shown the table below. The site is comprised of a forested inactive landfill and is surrounded by mixed hardwood forest. None of the federally listed plants or animals are expected to be present on the construction site or disturbed by construction of the project. WATER + ENVIRONMENT+ TRANSPORTATION+ ENERGY + FACILITIES Smith Mr. Pete Benjamin September 24, 2018 Page 2 Table 1. Federally Protected Species Potentially Occurring in Northeast Durham Name Category Scientific Name Common Name Sawfly, Wasp, Bee, or Ant Bombus affinis Rusty -patched Bumble Bee Vascular Plant Echinacea laevigata Smooth Coneflower Bird Haliaeetus leucocephalus Bald Eagle Vascular Plant Rhus michauxii Michaux's Sumac Mammal Myotis septentrionalis Northern Long Eared Bat The project is expected to disturb approximately 8.5 acres of the 17.7 -acre site (2 parcels) for remediation/stabilization of the buried waste. Construction, including waste redistribution, regrading, and capping is expected to take 6 months and construction is planned for early 2019. The existing cover soil depth over the buried waste is less than 1.5 foot from the surface in some places. Some waste will be relocated on the site to move it away from, avoid, and minimize impacts to surrounding wetlands. An impervious cap will be placed over the entire landfill with at least 1.5 feet of soil cover on top. The landfill footprint will be maintained clear of woody vegetation following the remedial construction with native herbaceous species. In addition to the protected species evaluation above, the new online project review procedure (9 steps) was used to identify the species of concern and evaluate potential effects. The required formal species list, state species/community search results, species conclusions table, and self - certification letter are provided as attachments to this letter. Please let me know if you have any comments regarding potential impacts this project will have to federally protected species. If you have questions, my contact information is: Robert Hopper, PE, (919) 325-3554, hopperry@cdmsmith.com. Our office address is in the letterhead at the top of this letter, along with the fax number. Sincerely, Rob Hopper Project Engineer, CDM Smith Inc. Enclosures Cc: Dan Forbes, Project Manager 92988 0 ��CN7 O� y ► �aa ,c'x ruins* United States Department of the Interiornx� FISH AND WILDLIFE SERVICE Raleigh Ecological Services Field Office Post Office Box 33726 Raleigh, NC 27636-3726 Phone: (919) 856-4520 Fax: (919) 856-4556 In Reply Refer To: September 19, 2018 Consultation Code: 04EN2000-2018-SLI-1309 Event Code: 04EN2000-2018-E-02709 Project Name: Marbery Landfill Remedial Action Plan Subject: List of threatened and endangered species that may occur in your proposed project location, and/or may be affected by your proposed project To Whom It May Concern: The species list generated pursuant to the information you provided identifies threatened, endangered, proposed and candidate species, as well as proposed and final designated critical habitat, that may occur within the boundary of your proposed project and/or may be affected by your proposed project. The species list fulfills the requirements of the U.S. Fish and Wildlife Service (Service) under section 7(c) of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 etseq.). New information based on updated surveys, changes in the abundance and distribution of species, changed habitat conditions, or other factors could change this list. Please feel free to contact us if you need more current information or assistance regarding the potential impacts to federally proposed, listed, and candidate species and federally designated and proposed critical habitat. Please note that under 50 CFR 402.12(e) of the regulations implementing section 7 of the Act, the accuracy of this species list should be verified after 90 days. This verification can be completed formally or informally as desired. The Service recommends that verification be completed by visiting the ECOS-IPaC website at regular intervals during project planning and implementation for updates to species lists and information. An updated list may be requested through the ECOS-IPaC system by completing the same process used to receive the enclosed list. Section 7 of the Act requires that all federal agencies (or their designated non-federal representative), in consultation with the Service, insure that any action federally authorized, funded, or carried out by such agencies is not likely to jeopardize the continued existence of any federally -listed endangered or threatened species. A biological assessment or evaluation may be prepared to fulfill that requirement and in determining whether additional consultation with the Service is necessary. In addition to the federally -protected species list, information on the species' life histories and habitats and information on completing a biological assessment or 09/19/2018 Event Code: 04EN2000-2018-E-02709 2 evaluation and can be found on our web page at http://www.fws.gov/raleigh. Please check the web site often for updated information or changes If your project contains suitable habitat for any of the federally -listed species known to be present within the county where your project occurs, the proposed action has the potential to adversely affect those species. As such, we recommend that surveys be conducted to determine the species' presence or absence within the project area. The use of North Carolina Natural Heritage program data should not be substituted for actual field surveys. If you determine that the proposed action may affect (i.e., likely to adversely affect or not likely to adversely affect) a federally -protected species, you should notify this office with your determination, the results of your surveys, survey methodologies, and an analysis of the effects of the action on listed species, including consideration of direct, indirect, and cumulative effects, before conducting any activities that might affect the species. If you determine that the proposed action will have no effect (i.e., no beneficial or adverse, direct or indirect effect) on federally listed species, then you are not required to contact our office for concurrence (unless an Environmental Impact Statement is prepared). However, you should maintain a complete record of the assessment, including steps leading to your determination of effect, the qualified personnel conducting the assessment, habitat conditions, site photographs, and any other related articles. Please be aware that bald and golden eagles are protected under the Bald and Golden Eagle Protection Act (16 U.S.C. 668 et seq.), and projects affecting these species may require development of an eagle conservation plan (http://www.fws.gov/windenergy/ eagle_guidance.html). Additionally, wind energy projects should follow the wind energy guidelines (http://www.fws.gov/windenergy/) for minimizing impacts to migratory birds and bats. Guidance for minimizing impacts to migratory birds for projects including communications towers (e.g., cellular, digital television, radio, and emergency broadcast) can be found at: http:// www.fws.gov/migratorybirds/CurrentBirdIssues/Hazards/towers/towers.htm; http:// www.towerkill.com; and http://www.fws. og v/mi rgratorybirds/CurrentBirdIssues/Hazards/towers/ comtow.html. Not all Threatened and Endangered Species that occur in North Carolina are subject to section 7 consultation with the U.S Fish and Wildlife Service. Atlantic and shortnose sturgeon, sea turtles,when in the water, and certain marine mammals are under purview of the National Marine Fisheries Service. If your project occurs in marine, estuarine, or coastal river systems you should also contact the National Marine Fisheries Service, http://www.nmfs.noaa.gov/ We appreciate your concern for threatened and endangered species. The Service encourages Federal agencies to include conservation of threatened and endangered species into their project planning to further the purposes of the Act. Please include the Consultation Tracking Number in the header of this letter with any request for consultation or correspondence about your project that you submit to our office. If you have any questions or comments, please contact John Ellis of this office at john_ellis@fws.gov. 09/19/2018 Event Code: 04EN2000-2018-E-02709 Attachment(s): • Official Species List 09/19/2018 Event Code: 04EN2000-2018-E-02709 Official Species List This list is provided pursuant to Section 7 of the Endangered Species Act, and fulfills the requirement for Federal agencies to "request of the Secretary of the Interior information whether any species which is listed or proposed to be listed may be present in the area of a proposed action". This species list is provided by: Raleigh Ecological Services Field Office Post Office Box 33726 Raleigh, NC 27636-3726 (919) 856-4520 09/19/2018 Event Code: 04EN2000-2018-E-02709 Project Summary Consultation Code: 04EN2000-2018-SLI-1309 Event Code: 04EN2000-2018-E-02709 Project Name: Marbery Landfill Remedial Action Plan Project Type: Landfill Project Description: The project involves remediation of an existing inactive landfill by containing and capping the waste with an impermeable cover layer. Construction equipment will be used to centralize the buried waste over the 8 -acre landfill. Construction is expected to begin in early 2019. Project Location: Approximate location of the project can be viewed in Google Maps: https: www.aooale.com/m!ips/Tlace/36.0145837412748lN78.8298709970943W Counties: Durham, NC 2 09/19/2018 Event Code: 04EN2000-2018-E-02709 Endangered Species Act Species There is a total of 2 threatened, endangered, or candidate species on this species list. Species on this list should be considered in an effects analysis for your project and could include species that exist in another geographic area. For example, certain fish may appear on the species list because a project could affect downstream species. IPaC does not display listed species or critical habitats under the sole jurisdiction of NOAA Fisheriesl, as USFWS does not have the authority to speak on behalf of NOAA and the Department of Commerce. See the "Critical habitats" section below for those critical habitats that lie wholly or partially within your project area under this office's jurisdiction. Please contact the designated FWS office if you have questions. NOAA Fisheries, also known as the National Marine Fisheries Service (NMFS), is an office of the National Oceanic and Atmospheric Administration within the Department of Commerce. Flowering Plants NAME STATUS Michaux's Sumac Rhus michauxii Endangered No critical habitat has been designated for this species. Species profile: https://ecos.fws. ,oF v/ecp/species/5217 Smooth Coneflower Echinacea laevigata Endangered No critical habitat has been designated for this species. Species profile: https:Hecos.fws. oe v/ecp/species/3473 Critical habitats THERE ARE NO CRITICAL HABITATS WITHIN YOUR PROJECT AREA UNDER THIS OFFICE'S JURISDICTION. NC DENR - CPCA - NHP - Heritage Data by Topo Quad - Merged w_County Geometry -filtered TAXONOMIC—GROUP Vascular Plant Vascular Plant Vascular Plant Sawfly, Wasp, Bee, or Ant Vascular Plant Vascular Plant Vascular Plant Vascular Plant Vascular Plant Vascular Plant Bird Amphibian Vascular Plant Freshwater Bivalve Freshwater Bivalve Vascular Plant Vascular Plant Amphibian Freshwater Fish Vascular Plant Vascular Plant Vascular Plant Vascular Plant Vascular Plant Vascular Plant Vascular Plant Vascular Plant Vascular Plant Vascular Plant Vascular Plant SCIENTIFIC—NAME COMMON _NAME STATE_STi FEDERA STATE _RAI GLOBAL_R HABITAT_ COMMENT TOPO_MA TOPO_MAP—STATUS Acmispon helleri Carolina Birdfoot-trefoil SC -V S3 G5T3 open woods over clay soils, roadsides Northeast Current Baptisia aberrans (syn. Baptisia australis var. aberrans) Prairie Blue Wild Indigo E S2 G5T2 glades and open forests on basic soils Northeast Current Berberis canadensis American Barberry SC -V S2 G3 open forests and glades on basic soils Northeast Current Bombus affinis Rusty -patched Bumble Bee SR E S1 G1 from NC but no locality information at publication Northeast Historical Cardamine douglassii Douglass's Bittercress T S2 G5 bottomlands, rich lower slopes Northeast Current Cyperus granitophilus Granite Flatsedge T S2 G3G4Q granite flatrocks, other rock outcrops Northeast Current Delphinium exaltatum Tall Larkspur E S2 G3 grassy balds, glades, woodlands, mostly over mafic rock Northeast Current Echinacea laevigata Smooth Coneflower E E S1S2 G2G3 glades, woodlands, and open areas over mafic rocks Northeast Current Enemion biternatum Eastern Isopyrum SC -V S2 G5 rich bottomlands, levees, and lower slopes Northeast Current Fleischmannia incarnata Pink Thoroughwort T S2 G5 rich woods and thin woodlands over diabase, calcareous rocks, other basic rocks, or rich alluvium Northeast Current Haliaeetus leucocephalus Bald Eagle T BGPA S3B,S3N G5 mature forests near large bodies of water (nesting); rivers, lakes, and sounds (foraging) [breeding e Northeast Current Hemidactylium scutatum Four -toed Salamander SC S3 G5 pools, bogs, and other wetlands in hardwood forests Northeast Current Isoetes piedmontana Piedmont Quillwort E S2 G4 granite flatrocks and diabase glades Northeast Current Lampsilis cariosa Yellow Lampmussel E S3 G3G4 Chowan, Roanoke, Neuse, Tar, Cape Fear, Lumber, Yadkin --Pee Dee drainages Northeast Current Lampsilis radiata Eastern Lampmussel T S3 G5 Chowan, Roanoke, Tar, Neuse, Cape Fear, Yadkin --Pee Dee drainages Northeast Current Lithospermum canescens Hoary Puccoon T S2 G5 diabase glades, open woods over diabase Northeast Current Nabalus albus Northern Rattlesnake -root T S2? G5 hardwood forests Northeast Current Necturus lewisi Neuse River Waterdog SC S2 G2 rivers and large streams in Neuse and Tar drainages (endemic to North Carolina) Northeast Current Noturus furiosus Carolina Madtom T S2 G2 Tar and Neuse drainages (endemic to North Carolina) Northeast Historical Panicum flexile Wiry Panic Grass T S1 G5 glades and openings over mafic rocks Northeast Current Portulaca smallii Small's Portulaca T S2 G3 granite flatrocks and diabase glades Northeast Current Rhus michauxii Michaux's Sumac E E S2 G2G3 sandhills, sandy forests, woodland, woodland edges Northeast Current Ruellia humilis Low Wild -petunia E S1 G5 diabase glades Northeast Current Ruellia purshiana Pursh's Wild -petunia SC -V S2 G3 glades and woodlands, mostly over mafic or calcareous rocks Northeast Current Scutellaria leonardii Shale -barren Skullcap E S2 G4T4 diabase glades Northeast Current Scutellaria nervosa Veined Skullcap E S1 G5 alluvial forests Northeast Current Symphyotrichum concinnum (syn. Symphyotrichum laei Narrow -leaved Smooth Aster T S2 G5T4 forests, woodland borders especially over mafic rocks Northeast Current Symphyotrichum depauperatum Serpentine Aster E S1 G2 diabase glades Northeast Current Trichostema brachiatum Glade Bluecurls E S1 G5 diabase glades, other dry calcareous or mafic outcrops Northeast Current Trifolium reflexum Buffalo Clover T S1S2 G3G4 open woods and clearings Northeast Historical Species Conclusions Table Project Name: Marbery Inactive Landfill Remediation Date: September 19, 2018 Species / Resource Name Conclusion ESA Section 7 / Eagle Act Determination Notes / Documentation Smooth Coneflower Echinacea laevigata aihabltotp...amandn000rant—ycond,,t,d,NoCddcalHabllalP May affect, not likely to adversely affect Official Species List- Raleigh Ecological Services Field Office Rusty -patched Bumble Bee, Bombus affinis Potential habitat present and no current survey conducted, No Critical Habitat Present May affect, not likely to adversely affect Official Species List - Raleigh Ecological Services Field Office Michaux's Sumac, Rhus michauxii Potential habitat present and no current survey conducted, No Critical Habitat Present May affect, not likely to adversely affect Official Species List - Raleigh Ecological Services Field Office Bald Eagle, Haliaeetus leucocephalus Unlikely to disturb nesting bald eagle No Eagle Act Permit Required. Official Species List - Raleigh Ecological Services Field Office Northern long-eared bat, Myotis septentrionalis Suitable habitat present (young trees) May affect, not likely to adversely affect Tree removal will be limited to trees on top of landfill. Acknowledgement: I agree that the above information about my proposed project is true. I used all of the provided resources to make an informed decision about impacts in the immediate and surrounding areas. - Water Resources Engineer, CDM Smith Inc. 9/21/2018 Signature /Title Date S�eNT OF its QpP HFA E7rf[ H 'Lm"" United States Department of the Interior .9 FISH AND WILDLIFE SERVICE SACH 3. t9 , Raleigh Field Office P.O. Box 33726 Raleigh, NC 27636-3726 Date: September 19, 2018 Self -Certification Letter Project Name Marbery Landfill Remediation Dear Applicant: Thank you for using the U.S. Fish and Wildlife Service (Service) Raleigh Ecological Services online project review process. By printing this letter in conjunction with your project review package, you are certifying that you have completed the online project review process for the project named above in accordance with all instructions provided, using the best available information to reach your conclusions. This letter, and the enclosed project review package, completes the review of your project in accordance with the Endangered Species Act of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended (ESA), and the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668c, 54 Stat. 250), as amended (Eagle Act). This letter also provides information for your project review under the National Environmental Policy Act of 1969 (P.L. 91-190, 42 U.S.C. 4321-4347, 83 Stat. 852), as amended. A copy of this letter and the project review package must be submitted to this office for this certification to be valid. This letter and the project review package will be maintained in our records. The species conclusions table in the enclosed project review package summarizes your ESA and Eagle Act conclusions. Based on your analysis, mark all the determinations that apply: "no effect" determinations for proposed/listed species and/or ❑ proposed/designated critical habitat; and/or P1"may affect, not likely to adversely affect" determinations for proposed/listed species and/or proposed/designated critical habitat; and/or "may affect, likely to adversely affect" determination for the Northern long- eared bat (Myotis septentrionalis) and relying on the findings of the January 5, 2016, Programmatic Biological Opinion for the Final 4(d) Rule on the Northern long-eared bat; a"no Eagle Act permit required" determinations for eagles. Applicant Page 2 We certify that use of the online project review process in strict accordance with the instructions provided as documented in the enclosed project review package results in reaching the appropriate determinations. Therefore, we concur with the "no effect" or "not likely to adversely affect" determinations for proposed and listed species and proposed and designated critical habitat; the "may affect" determination for Northern long-eared bat; and/or the "no Eagle Act permit required" determinations for eagles. Additional coordination with this office is not needed. Candidate species are not legally protected pursuant to the ESA. However, the Service encourages consideration of these species by avoiding adverse impacts to them. Please contact this office for additional coordination if your project action area contains candidate species. Should project plans change or if additional information on the distribution of proposed or listed species, proposed or designated critical habitat, or bald eagles becomes available, this determination may be reconsidered. This certification letter is valid for 1 year. Information about the online project review process including instructions, species information, and other information regarding project reviews within North Carolina is available at our website http://www.fws.gov/raleigh/pp.html. If you have any questions, you can write to us at Raleigh@fws.gov or please contact Leigh Mann of this office at 919-856-4520, ext. 10. Sincerely, /s/Pete Benjamin Pete Benjamin Field Supervisor Raleigh Ecological Services Enclosures - project review package 2USGS science for a changing world 78°52'30" 36°07': 399901 5' 2'; 820 F 36°00' 78°52'30" Produced by the United States Geological Survey North American Datum of 1983 (NAD83) World Geodetic System of 1984 (WGS84). Projection and 1 000 -meter grid: Universal Transverse Mercator, Zone 17S 10 000 -foot ticks: North Carolina Coordinate System of 1983 This map is not a legal document. Boundaries may be generalized for this map scale. Private lands within government reservations may not be shown. Obtain permission before entering private lands. Imagery ..................................................NAIP, June 2014 Roads ................................ U.S. Census Bureau, 2015 - 2016 Names..........................................................GNIS, 2016 Hydrography ....................National Hydrography Dataset, 2014 Contours............................National Elevation Dataset, 2008 Boundaries ............ Multiple sources; see metadata file 1972 -2016 Wetlands ......... FWS National Wetlands Inventory 1977 - 2014 U.S. DEPARTMENT OF THE INTERIOR The National Map NORTHEAST DURHAM QUADRANGLE U.S. GEOLOGICAL SURVEY �� Topo NORTH CAROLINA PA QA 7.5 -MINUTE SERIES 50' 47'30" 78°4 ' 36°07'30" QA 00 QV 5 N 9° 8" 162 MILS N 1° 17" 23 MILS UTM GRID AND 2016 MAGNETIC NORTH DECLINATION AT CENTER OF SHEET U.S. National Grid 100,000-m Square ID 700 PV QA 00 PV QV Grid Zone Designation 17S 50' ", "" 47'30" PV QV SCALE 1:24 000 1 0.5 0 KILOMETERS 1 2 NORTH CAROLIN 1000 500 0 METERS 1000 2000 1 0.5 0 1 MILES 1000 0 1000 2000 3000 4000 5000 6000 7000 8000 9000 10000 QUADRANGLE LOCATION FEET CONTOUR INTERVAL 10 FEET NORTH AMERICAN VERTICAL DATUM OF 1988 This map was produced to conform with the National Geospatial Program US Topo Product Standard, 2011. A metadata file associated with this product is draft version 0.6.19 1 Rougemont 1 2 3 2 Lake Michie 3 Stem 4 5 4 Northwest Durham 5 Creedmoor 6 Southwest Durham 6 7 8 7 Southeast Durham 8 Bayleaf ADJOINING QUADRANGLES ROAD CLASSIFICATION Expressway Local Connector Secondary Hwy Local Road Ram 4WD 99 30 000 -ET 98 97 96 5' 95 94 93 92 2'30" '90 '89 '88 187000m N 36°00' 78°45' P If Interstate Route C3 US Route O State Route NORTHEAST DURHAM, NC 2016 —LO LOC) U0 O N O co �Y M � N O x r Cn o0 co Cf)v= m O Z U. LU ZQ to t7 zz Legend Construction Boundary Approx Parcel Boundary — — — Stream =— NWI Wetlands L CDM Smith 0 50 100 200 300 400 Feet 096 Marbery Figure 2. Site Map Attachment 1- Marbery Landfill (Inactive) Site Photos Photo 1. View of barn near end of Benbow Drive Photo 2. Utility Easement with Residential Dwelling in background to west of landfill. Attachment 1- Marbery Landfill (Inactive) Site Photos Photo 3. View of landfill and gravel road facing southwest Photo 4. View of small pond and road facing west Attachment 1- Marbery Landfill (Inactive) Site Photos Photo 5. View facing downstream unnamed tributary from gravel road Photo 6. View of Unnamed Tributary facing upstream and south tag r' OW .N ... F. — �,'�• - .- ... _ _ - �=-_ �.".. _ �r :ems -.-S• .'may"�F.: _ 06 • - .�. +fid: ; — . � .�. - Photo 5. View facing downstream unnamed tributary from gravel road Photo 6. View of Unnamed Tributary facing upstream and south Attachment 1 - M arbeC Landfill (inactive) Site Photos Photo 7 Panther Creek facing down#ream and northeast ..� � �6.\J -- a��Zy Photo 8. Panther Creek facing upstream and southwest Attachment 1- Marbery Landfill (Inactive) Site Photos r 4 Photo 9. Wetland at south end of site facing barn to north