20090337 Ver 2_Other Agency Comments_20090729

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DEPARTMENT THE ARMY ??
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
JUL 2 9 2009
REPLY TO
ATTENTION OP:
Jul 27 2009 DEW-WATER QUALITY
Y WETUMS AND SMOWATER BRANCH
Regulatory Division
Action ID. SAW-2007-02699
Mr. Calvin Peck
Village of Bald Head Island
Post Office Box 3009
Bald Head Island, North Carolina 28461-7000
Dear Mr. Peck:
This correspondence is in response to your letter dated June 18, 2009 (copy enclosed),
requesting modification of the Department of the Army (DA) Permit issued to the Village of
Bald Head Island June 18, 2009, authorizing 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. This authorization was conditioned upon the work occurring between November 16`h and
March 31" and excavation from Jay Bird Shoals not exceeding a finished depth of -22.0 ft
(NGVD). In your June 18, 2009 letter you request to modify this authorization to allow dredging
operations to begin on September 15, 2009, and to increase the allowable excavation depth on
Jay Bird Shoals from -22.0 ft to -24 ft (NGVD). Please also reference your Biological
Assessment (BA) dated June 2009 that was submitted with your permit modification request.
Lastly, please reference your letter dated May 20, 2009, requesting renewal of your DA permit
(Permit No. 199404687) for the sand tube groins.
In your June 18, 2009 letter you cite several issues including construction requirements
"unique to Bald Head Island" that may complicate completion of your project within the
authorized construction window. You indicate that, within the authorized construction window,
time available for actual placement of sand will be further limited by mobilization times, delays
due to anticipated winter storms and corresponding rehabilitation of sixteen (16) sand filled groin
tubes. You further state that given the authorized construction window, the time available to
complete construction is theoretically close to the actual time necessary to complete the project,
thereby reducing time available to accommodate unforeseen delays and resulting in increased
project cost. You suggest that expanding the constriction window to September 15 and
increasing the allowable excavation depth will not only alleviate the above mentioned concerns
but will also benefit other private and Federal beach nourishment projects by freeing up
equipment. Finally, you assert that since all work proposed before November 15 will be in
highly eroded areas of beach, potential adverse effects to endangered species "are minimal and
can be avoided entirely" and increasing the dredge depth reduces the overall area of disturbance
and "fulfills the mitigative commitments of the permittee."
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Alternatives Analysis
Section 8 of the December 2007 "Draft Environmental Assessment, Bald Head Island Beach
Restoration Project" prepared and submitted to the Corps on your behalf by your consultants
Land Management Group (LMG) and Olsen Associates, identifies mitigative measures proposed
to alleviate adverse impacts to natural resources. Among these is the institution of a November
15th to April 1St construction window. The February 2009 "Essential Fish Habitat Report, Bald
Head Island Beach Restoration Project" prepared and submitted to the Corps on your behalf by
LMG states repeatedly that limiting work to the period from mid November to the end of March
will reduce potential adverse impacts to fish and benthic communities and concludes that
because activities will occur "during designated windows of reduced biological activity",
cumulative impacts to Essential Fish Habitat will be minimized. Finally, Section 3 of the March
30, 2009 "Environmental Assessment, Bald Head Island Beach Restoration Project" prepared
and submitted to the Corps on your behalf by your consultants LMG and Olsen Associates,
describes alternatives you considered and identifies the currently permitted alternative as the
"Applicant's Proposed and Preferred Alternative".
In making Clean Water Act permit decisions, the Corps must ensure compliance with the Clean
Water Act Section 404(b)(1) Guidelines (Guidelines) codified at 40 CFR Part 230. These
Guidelines require, among other things, that any permitted action be the least environmentally
damaging practicable alternative (LEDPA) to accomplish the stated project purpose and that all
appropriate and practicable steps to minimize impacts to the aquatic ecosystem have been taken.
Based on the information you provided throughout the review process, the Corps determined that
the currently permitted alternative was the LEDPA and that confining work to the November 15
to April 1 construction window was a practicable minimization effort. The information provided
in your June 18, 2009 letter does not overcome this determination.
Based on the information provided, the Corps cannot conclude that modifying your proposed
project by expanding the construction window as requested and increasing the maximum
dredging depth would result in no significant difference in overall project impact. Please provide
specific information demonstrating that impacts to the aquatic environment will remain constant
or be reduced as a result of the proposed modifications. Additionally, you should include
adequate sediment analyses to confirm the material found to -24 ft (NGVD) is compatible with
the NC state sediment criteria. Should the Corps determine that your proposed modification
constitutes an additional alternative, you would need to provide further information supporting
that the new alternative is the LEDPA. This would include construction costs, mobilization and
demobilization costs, estimated unit cost per cubic yard, dredge quantities and pumping distances
and rates, as well as any additional information which led to your conclusion that the permitted
project is not a practicable alternative.
Endangered Species
The June 2009 BA Prepared by LMG and submitted with your June 18, 2009 letter considers the
effects of your requested permit modification on Federally listed endangered species and their
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critical habitat present in the project area. Your effect determinations are summarized as
follows:
Species Determination
Right Whale, Finback Whale, Humpback
Whale, Sei Whale, and Sperm Whale. Not likely to adversely affect.
West Indian Manatee Not likely to adversely affect.
Piping Plover May affect but not likely to adversely to affect.
Hawksbill Sea Turtle, Kemp's Ridley Sea
Turtle, and Leatherback Sea Turtle. No affect
Shortnose Sturgeon Not likely to adversely affect.
Seabeach Amaranth May affect but not likely to adversely to affect.
In accordance with 33 CFR 352.2(1)(5), the Corps must consider the potential impact on
threatened or endangered species pursuant to Section 7 of the Endangered Species Act (ESA).
Accordingly, we have reviewed your BA and have the following comments:
1. You initially agreed to the currently authorized construction window for all dredging and
beach fill (November 16th to March 31St). This construction window was used in all consultation
conducted under the ESA and was considered in arriving at all affect decisions. The requested
modification of the authorized window will require further coordination with the USFWS under
the ESA and may require we reinitiate consultation. The Corps has forwarded your request to
the USFWS. Please note that the November 16 to March 31 window is typical of all these types
of projects and has been developed through extensive coordination with the responsible resource
agencies. The agencies have in the past conditionally approved changes of up to 2 weeks on
either end of the construction window; however, to our knowledge, changes beyond two weeks
have never been approved for DA permits due to the potential adverse impacts to endangered
species.
2. The BA discusses the nesting conditions and the current relocations of nests from the
authorized beach nourishment areas. Sea turtles are known to nest in areas that are less than
optimal and also surrounded by unsuitable habitat areas, as found in the project area. Un-
detected nests can also occur in areas where the subaerial beach is narrow and traces of the nest
are lost before the sea turtle monitors find the nest.
3. The BA indicates that the beach area to be nourished prior to November 15 will not have any
active nests for the remainder of the year. This statement assumes that all nests in the project
area will be relocated prior to and during construction.
The BA should provide the details on these relocations including any coordination with the
North Carolina Wildlife Resources Commission. Please provide this office with copies of all
future correspondence with that agency. In addition, please keep the Corps informed on any
future re-locations of sea turtle nests on Bald Head Island.
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4. The BA states that beach nourishment activities may occur as early as September 15, when
amaranth plants are still releasing seeds, and that this may be detrimental to seed production and
distribution. The BA does not address the loss of mature, seed producing plants. The Corps is
concerned that the proposed modification will result in losses to seed producing plants that will
adversely affect future generations of seabeach amaranth.
5. The BA states that is unlikely that the shortnose sturgeon occurs in the project area. The
presence of shortnose sturgeon in the Cape Fear River has been recorded in the past. This
information should be reflected in the BA.
Under the Endangered Species Act, Federal Agencies must make a determination as to whether
an action may affect listed species or their critical habitat protected by the Act. Based on the
information you have provided, it is the Corps determination that the activity may affect any or
all of the above listed species. The Corps does not find however that the information provided in
your BA is sufficient to support your determination that the proposed activity is "not likely to
adversely affect" species or their critical habitat listed as endangered pursuant to the ESA.
In order to aid in our final determination, we request that you please provide the following
additional information:
a. A map clearly depicting the areas of suitable and unsuitable sea turtle habitat, the area where
sand would be placed during the Sept 15 through Nov. 15 timeframe, and the historic erosion
rates for these areas.
b. A map clearly depicting the "disturbed areas" on BHI from which sea turtle nests are now
being relocated (if available, please include the latitude and longitude coordinates of each
nest and the relocated location) as well as information on the hatching success of the
relocated nests and information on any loss or damage to eggs during relocation.
c. Historic data on all known sea turtle nests in the area to be nourished. Where available, this
data should extend back at least 10 years and include date, time, location of each nest, and
any field notes that were made. Pictures of nests may also aid our determination.
d. A detailed description of the sea turtle nest monitoring program on Bald Head Island,
including dates of initiation and completion, occurrence of nighttime monitoring, information
on the average time between surveys at a given point (e.g. each point on the beach is
surveyed at least every X hours) and information on the procedures for monitoring areas that
cannot be safely accessed by ATVs.
e. Information addressing any proposed remedial actions in the event of a turtle take during
construction of your project. Your request to begin work on September 15th increases the
likelihood of an incidental turtle take; therefore, this should include considerations of the
impacts to your project should work be halted due to incidental take.
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f. All available data on the presence of seabeach amaranth for the current growing season and
the previous 10 years within the area proposed to receive sand from Sept 15 through Nov. 15
g. All available and pertinent migratory data for the West Indian manatee within this region.
h. All available and pertinent information on the occurrence of shortnose sturgeon in the Cape
Fear River. You may need to contact the National Marine Fisheries Service, St. Petersburg
office for this information.
Thank you for your attention to these issues. Once you have provided sufficient
information, the Corps will make a determination as to whether your proposal will be reviewed
as an additional alternative or a modification to the currently permitted alternative. Additionally,
the Corps will make an effect determination pursuant to the ESA and provide it to the USFWS
for concurrence. Please note that submittal of this information does not indicate the Corps will
concur with your effect determinations as stated in your BA.
Should you have any questions, please contact Mr. Dave Timpy, Wilmington Field Office,
Regulatory Division, at [phone].
Sincerely,
S. Kenneth Jolly
Chief, Regulatory Division
Copies Furnished:
s. Cyndi Karoly
ivision of Environmental Management
.C. Department of Environment
and Natural Resources, Wetlands Division
2321 Crabtree Boulevard, Suite 250
Raleigh, North Carolina 27604-2260
Mr. Steve Everhart
Division of Coastal Management
N.C. Department of Environment
and Natural Resources
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
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. 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
Mr. Ron Sechler
National Marine Fisheries Service
Pivers Island
Beaufort, North Carolina 28516
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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. Petersburgh, 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
1502 North 23rd Street
Wilmington, North Carolina 28405