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Home My WebLink About20090337 Ver 2_Other Agency Comments_20090904Oq- 03 3'1 U& DEPARTMENT OF THE ARMY WILMINGTON DISTRICT, CORPS OF ENGINEERS 69 DARLINGTON AVENUE WILMINGTON, NORTH CAROLINA 28403-1343 REPLY TO ATTENTION OF: September 4, 2009 Regulatory Division Action ID No. SAW-2007-02699 Mr. Ron S echler National Marine Fisheries Service 101 Pivers Island Road Beaufort, North Carolina 28516 Dear Mr. Sechler: old.. ( 3,r ujy? w. ° @ 1? VLV7 v S E P - 9 2009 DENR . WATER QUALITY WETLANDS AND STORMiWATER BRANCH Please reference the Department of the Army (DA) Permit issued to the Village of Bald Head Island (VBHI), authorizing a one-time placement of approximately 2 million cubic yards of beach fill from Jay Bird Shoals along the South and West Beaches of Bald Head Island, North Carolina. Also reference the July 18, 2009, August 21, 2009 and August 27, 2009 letters submitted by Land Management Group, Inc on behalf of VBHI requesting modification to this permit. Finally, please reference our letter of August 10, 2009 regarding the initial permit modification request. The authorized permit requires that all construction activities occur within a window that minimizes environmental impacts. Special condition (14) of this permit states that "All dredging and beach fill work will be restricted to November 16th to March 31St. Upon completion of work, including mobilization and demobilization efforts and beach tilling all equipment, including pipelines, must be removed from the project area by March 31St." In a letter dated June 18, 2009, the VBHI requested to begin construction on September 15th. By letter dated August 10, 2009, the Corps of Engineers disapproved this request based on concerns with endangered species, Essential Fish Habitat (EFH), and potential alternatives available to VBHI. Subsequently, by letter dated August 21, 2009 the VBHI submitted a revised permit modification request to commence equipment mobilization activities on October 15th and to commence dredging soon thereafter. Like VBHI's first modification request, this latest request also proposes to deepen the allowable dredge depth and correspondingly reduce the dredging footprint in Jay Bird Shoals Borrow area. VBHI has submitted the enclosed revised EFH Assessment with its permit modification request. The Corps has reviewed this assessment, and other information provided with the modification request. Following discussions with staff from National Marine Fisheries Service (NMFS) U.S. Fish and Wildlife Service (USFWS) and State resource agencies, the Corps is considering the granting the proposed modification request with the following special conditions: -2- 1. The staging of equipment on the beach shall not commence prior to October 15 and shall be limited to that area identified for staging activities. 2. Dredging and the placement of sand onto the beach for nourishment activities shall not begin prior to November 1. While there are additional impacts to fisheries resources and EFH associated with the earlier start date, by implementing a November 1 start date, these additional impacts will be limited to near the end of periods of higher fisheries abundance. Therefore, any increase in adverse impact associated with the earlier start date is not expected to be substantial or significant. According to information provided by VBHI the 2-foot increase in maximum allowable dredge depth will result in an 8 -10% reduction of overall dredged area. It is the Corps determination that approval of this modification will not substantially change the potential impacts to fisheries resources including EFH. In compliance with the EFH regulations (50 CFR Section 600.920) and the Magnuson-Act (Section 305(b)(4)(B)) we are submitting this request and EFH Assessment for your review. Our evaluation has determined that the additional impacts associated with expanding the construction window to allow dredge work to begin November 1 for this one time event and increasing the maximum allowable dredge depth by 2-feet are not significant. Based on this information, we have determined that the project will not adversely impact EFH resources in the Bald Head Island area. Your written concurrence to this determination would be appreciated. If you have questions or comments, they may be addressed to Mr. Dave Timpy, Wilmington Regulatory Field Office, at (910) 251-4634. Sincerely, Enclosure Copies Furnished (without enclosure): r i s. Cyndi Karoly ivision of Environmental Management N.C. Department of Environment and Natural Resources, Wetlands Division 2321 Crabtree Boulevard, Suite 250 Raleigh, North Carolina 27604-2260 S. Kenneth Jolly, Chief Regulatory Division Mr. Doug Huggett Division of Coastal Management N.C. Department of Environment and Natural Resources 400 Commerce Avenue Morehead City, North Carolina 28557 I Ms. Molly Ellwood Southeastern Permit Coordinator N.C. Wildlife Resources Commission Habitat Conservation Program 127 Cardinal Drive Extension Wilmington, North Carolina 28405 Dr. Matt Godfrey N.C. Wildlife Resources Commission 217 Sleep Point Road Gloucester, North Carolina 28528 Mr. Pete Benjamin U.S. Fish and Wildlife Service Fish and Wildlife Enhancement Post Office Box 33726 Raleigh, North Carolina 27636-3726 Mr. Howard Hall U.S. Fish and Wildlife Service Fish and Wildlife Enhancement Post Office Box 33726 Raleigh, North Carolina 27636-3726 -3- Christian Preziosi Land Management Group, Inc. Post Office Box 2522 Wilmington, North Carolina 28402 Mr. Pace Wilber Supervisor, Atlantic Branch Habitat Conservation Division Post Office Box 12559 Charleston, South Carolina 28422-2559 Ms. Georgia Cranmore Assistant Regional Administrator for Protected Species Southeast Regional Office 9721 Executive Center Drive North St. Petersburg, Florida 33702 Ms. Becky Fox Wetlands Regulatory Section -Region IV U.S. Environmental Protection Agency 1349 Firefly Road Whittier, North Carolina 28789 Commanding Officer United States Coast Guard Marine Safety Unit Wilmington 721 Medical Center Drive, Suite 100 Wilmington, North Carolina 28401-4895 DEPARTMENT OF THE ARMY WILMINGTON DISTRICT, CORPS OF ENGINEERS 69 DARLINGTON AVENUE WILMINGTON, NORTH CAROLINA 28403-1343 REPLY TO ATTENTION OF: September 4, 2009 Regulatory Division Action ID No. SAW-2007-02699 Mr. Pete Benjamin U.S. Fish and Wildlife Service Post Office Box 33726 Raleigh, North Carolina 27636-3726 Dear Mr. Benjamin: S++EP - J 2009 DENR - WATER QUALITY WETLANDS AND STCRMWATER BRANCH Please reference the Department of the Army (DA) Permit issued to the Village of Bald Head Island (VBHI), authorizing a one-time placement of approximately 2 million cubic yards of beach fill from Jay Bird Shoals along the South and West Beaches of Bald Head Island, North Carolina and the letters dated August 21, 2009 and August 27, 2009 submitted by Land Management Group, Inc on behalf of the VBHI requesting a modification to the DA permit. The VBHI has also submitted a draft Biological Assessment (BA) with its permit modification request. Reference is also made to our letter of August 10, 2009 regarding the VBHI initial permit modification request to the DA permit for the subject project. The authorized permit requires that all construction activities occur within a window that minimizes environmental impacts. Special condition (14) of this permit states that "All dredging and beach fill work will be restricted to November 16th to March 31 St. Upon completion of work, including mobilization and demobilization efforts and beach tilling all equipment, including pipelines, must be removed from the project area by March 31st." Ina letter dated June 18, 2009, the VBHI requested to begin construction on September 15cn. By letter dated August 10, 2009, the Corps of Engineers disapproved this request based on concerns with endangered species, Essential Fish Habitat (EFH), and potential alternatives available to VBHI. Subsequently, by letter dated August 21, 2009 the VBHI submitted a revised permit modification request to commence equipment mobilization activities on October 15th and to commence dredging soon thereafter. Like VBHPs first modification request, this latest request also proposes to deepen the allowable dredge depth and correspondingly reduce the dredging footprint in Jay Bird Shoals Borrow area. The applicant has prepared the enclosed revised draft Biological Assessment (BA) dated August 2009 to evaluate the potential impacts of the project and the proposed modification, on nesting sea turtles, shoreline birds, shortnose sturgeon, seabeach amaranth, whales, and the West Indian manatee pursuant to the Endangered Species Act under purview of U.S. Fish and Wildlife Service. -2- The current modification request includes a more limited scope of work than did the original modification request submitted June 18. After review of the available information, it is the Corps determination that granting this request would not result in a change of potential for effect to Hawksbill sea turtles, Kemp's Ridley sea turtles, Leatherback sea turtles, shoreline birds, shortnose sturgeon, seabeach amaranth, whales, and the West Indian manatee. Table 1 summarizes these effect determinations. The proposed start of any beach work is October 15, well after the typical window during which Green and Loggerhead sea turtles access the beach for nesting. While it is possible that nests created late in the season may not yet have hatched by October 15, much of the area in which VBHI proposes to work prior to the original November 16 start date is relatively unsuitable nesting habitat. Recent storm damage created by Hurricane Bill has further removed suitable nesting habitat and likely any nests that did exist within much of the subject work area. To reduce the potential for disturbance to incubating nests by the proposed work, the applicant has proposed to continue monitoring for nesting sea turtles within all remaining areas of potentially suitable nesting habitat located in the areas proposed for work prior to November 16. The applicant has further proposed to monitor for hatching nests in advance of any work taking place prior to November 16. Based upon our review of the draft BA and information provided with the VBHI permit modification request, as well as discussions with your staff and staff of the N.C. Wildlife Resources Commission, the Corps is considering the granting the proposed modification request with the following special conditions: 1. The staging of equipment on the beach shall not commence prior to October 15 and shall be limited to that area identified for staging activities. 2. Dredging and the placement of sand onto the beach for nourishment activities shall not begin prior to November 1. 3. Intense monitoring as routinely conducted by the Bald Head Conservancy during peak summertime nesting periods shall continue within the area outlined in Figures 2a and 2b of the modified request until midnight September 15. This work should be conducted at night in a regular, routine fashion by properly trained individuals. If newly lain nests are discovered, Conservancy personnel shall consult with N.C. Wildlife Resources Commission and U.S. Fish and Wildlife Service staff to determine whether the nest(s) meet the criteria for relocation. 4. All staging activities occurring prior to November 1 shall be conducted during daylight hours only. Daily work shall only begin after an initial survey is conducted by qualified sea turtle monitoring personnel for the presence of any nests or hatchlings. 5. During all work conducted prior to November 16, monitoring for emerging nests or hatchlings shall be conducted prior to initiating work and regularly thereafter. During nighttime activities occurring after November 1, this monitoring shall extend beyond the defined project boundaries to include all areas affected by lights used in the work area. All monitoring shall be conducted by qualified sea turtle monitoring personnel. -3- 6. If nests or hatchlings are encountered at any time, all work must cease within 50 meters of the hatchlings and/or nest. If nest or hatchlings are within an area obstructed by equipment or nourishment activities, hatchlings will need to be transported by qualified Conservancy personnel to an area outside of the work boundaries and beyond the area impacted by lights from equipment. The hatchlings should be released at least 15 ft above the current water line, and allowed to crawl to the ocean (Lorne 2007). If nest or hatchlings are within an unobstructed area, no work shall be conducted within 50 meters of the identified nest for 72 hours following the first observed emergence. After the 72 hour time period the nest should be excavated and evaluated for success criteria; only then may work resume within that buffer. The Corps has determined that with the implementation of the preceding special conditions, the project, with the proposed modification may affect but is not likely to adversely affect Green and Loggerhead Sea Turtles. Table 1. ESA Effect Determinations by the Corps of Engineers. Please note that these determinations are not totally consistent with those in the draft BA. Species Determination Right Whale, Finback Whale, Humpback Whale, Sei Whale, and Sperm Whale. No affect. West Indian Manatee May affect but not likely to adversely affect. Piping Plover May affect but not likely to adversely affect. Hawksbill Sea Turtle, Kemp's Ridley Sea Turtle, and Leatherback Sea Turtle. May affect but not likely to adversely affect. Loggerhead and Green Sea Turtles May affect but not likely to adversely affect. Shortnose Sturgeon No affect. Seabeach Amaranth No affect. We request, pursuant to the prescribed process for informal consultation, that you advise the Corps as to your concurrence or non-concurrence with the appropriate determinations at your earliest convenience. If you have questions or comments, they may be addressed to Mr. Dave Timpy, Wilmington Regulatory Field Office, at (910) 251-4634. Sincerely, S. Kenneth Jolly, Chief Regulatory Division Enclosures i -4- Copies Furnished (without enclosure): s. Cyndi Karoly Division of Environmental Management N.C. Department of Environment and Natural Resources 2321 Crabtree Boulevard, Suite 250 Raleigh, North Carolina 27604-2260 Mr. Doug Huggett Division of Coastal Management N.C. Department of Environment and Natural Resources 400 Commerce Avenue Morehead City, North Carolina 28557 Ms. Molly Ellwood Southeastern Permit Coordinator N.C. Wildlife Resources Commission Habitat Conservation Program 127 Cardinal Drive Extension Wilmington, North Carolina 28405 Dr. Matt Godfrey N.C. Wildlife Resources Commission 217 Sleep Point Road Gloucester, North Carolina 28528 Mr. Howard Hall U.S. Fish and Wildlife Service Fish and Wildlife Enhancement Post Office Box 33726 Raleigh, North Carolina 27636-3726 Mr. Ron Sechler National Marine Fisheries Service Pivers Island Beaufort, North Carolina 28516 Christian Preziosi Land Management Group, Inc. Post Office Box 2522 Wilmington, North Carolina 28402 Mr. Pace Wilber Supervisor, Atlantic Branch Habitat Conservation Division Post Office Box 12559 Charleston, South Carolina 28422-2559 Ms. Georgia Cranmore Assistant Regional Administrator for Protected Species Southeast Regional Office 9721 Executive Center Drive North St. Petersburg, Florida 33702 Ms. Becky Fox Wetlands Regulatory Section -Region IV U.S. Environmental Protection Agency 1349 Firefly Road Whittier, North Carolina 28789 Commanding Officer United States Coast Guard Marine Safety Unit Wilmington 721 Medical Center Drive, Suite 100 Wilmington, North Carolina 28401-4895