Trifolium Stoloniferum) Under Section 7 of the Endangered Species Act (Act) of 1973, As Amended (16 U.S.C

United States Department of the Interior FISH AND WILDLIFE SERVICE Kentucky Ecological Services Field Office 330 West Broadway, Suite 265 Frankfort, Kentucky 40601 (502) 695-0468

April 13, 2015

Dr. Patti Grace-Jarrett Louisville District Corps of Engineers CELRL-OP-FS, Room 752 P.O. Box 59 Louisville, Kentucky 40201-0059

Subject: FWS #04EK1000-2013-B-0042; Final Biological Opinion for the KDFWR's Roger's Gap Stream Restoration Project (LRL-2012-134) in Scott County, Kentucky and Its Effects to the Federally Threatened Running Buffalo Clover (Trifblium stoloniferum)

Dear Dr. Grace-Jarrett:

This document is the U.S. Fish and Wildlife Service's (USFWS) biological opinion based on our review of the Kentucky Department of Fish and Wildlife Resources' (KDFWR) Roger's Gap Stream Restoration Project in Scott County, Kentucky and its effects to the federally threatened running buffalo clover (Trifolium stoloniferum) under section 7 of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq.). Your request for formal consultation was received on December 30, 2014.

This formal consultation and biological opinion is based on information provided in the November 2014 Biological Assessment (BA), additional information provided by KDFWR, peer-reviewed scientific literature, other available literature, personal communications with experts on running buffalo clover who have first-hand experience with the proposed project area, and other sources of information available to us and/or in our files. A complete administrative record of this consultation is on file at the Kentucky Ecological Services Field Office (KFO) in Frankfort, Kentucky.

The KFO appreciates the cooperation of the Corps and KDFWR during this consultation. For further coordination on this biological opinion, please contact Jennifer Garland at the address shown at the top of this biological opinion, via email at Jennifer [email protected] , or at 502/695-0468 extension 115.

Sincerely,

-•‘ /61 Virgil Lee Andrews, Jr. Field Supervisor The U.S. Fish and Wildlife Service Kentucky Ecological Services Field Office's Final Biological Opinion on the Effects of the Roger's Gap Stream Restoration Project in Scott County, KY on Running Buffalo Clover (Trifolium stoloniferum) Jennifer M. Garland 4/13/2015 FWS# 04EK1000-2013-F-0092

Introduction

The KFO has reviewed the on-going Roger's Gap Stream Restoration Project. The federally endangered Indiana bat (Myotis sodalis), federally threatened endangered northern long-eared bat (Myotis septentrionalis) and running buffalo (Trifolium stoloniferum) are the only federally listed species identified as occurring within the vicinity of the proposed project area and action area. Based on an evaluation of the information provided in an earlier BA for this project, the KFO has concurred with a "not likely to adversely affect" determination for the Indiana bat and the northern long-eared bat. Due to the concurrences we have already provided on these species, the Indiana bat and northern long-eared bat will not be discussed further in this biological opinion. The KFO believes that running buffalo clover is the only federally listed species that the proposed project would likely adversely affect. This document represents our biological opinion on the effects of the action on running buffalo clover in accordance with Section 7 of the Act.

Consultation History

October 25, 2012 The U.S. Army Corps of Engineers, Louisville District (Corps) and KDFWR request concurrence with not Likely to Adversely Affect (NLAA) determinations on Indiana bat, gray bat, clubshell mussel, and running buffalo clover.

November 1, 2012 The KFO concurs with all determinations.

July 2013 The KDFWR notifies the KFO that additional running buffalo clover patches were discovered within the action area and that an Indiana bat maternity colony has been documented using the action area.

August 1, 2013 The KFO sends a letter to the USACE requesting that consultation be re-initiated based on this new information.

September 20, 2013 The Corps and KDFWR re-initiate consultation for the Indiana bat and running buffalo clover and the northern long-eared bat is added to the BA.

October 29, 2013 The KFO concurs with the NLAA determinations for the Indiana bat, northern long-eared bat, and running buffalo clover.

June 2014 The KDFWR notifies the KFO that additional running buffalo clover patches have been discovered within the project site.

December 30, 2014 The KFO receives the final BA and request to enter into formal consultation on running buffalo clover from the Corps.

January 13, 2015 The KFO notifies the Corps that the submitted BA contains sufficient information to initiate formal consultation, and formal consultation is initiated.

February 2015 Email exchange between KFO and KDFWR clarifying conservation measures.

February 23, 2015 The KFO provides a draft biological opinion to the Corps and KDFWR for review.

March 3, 2015 The KFO receives comments from the Corps.

April 3, 2015 The KDFWR provides additional information needed to address Corps comments.

April 13, 2015 The KFO issues the final Biological Opinion for the Roger's Gap Stream Restoration Project.

3 BIOLOGICAL OPINION

DESCRIPTION OF THE PROPOSED ACTION

As defined in the USFWS's section 7 regulations (50 CFR 402.02), "action" means "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by federal agencies in the United States or upon the high seas." The "action area" (project area) is defined as "all areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action." The direct and indirect effects of the actions and activities must be considered in conjunction with the effects of other past and present federal, state, or private activities, as well as the cumulative effects of reasonably certain future state or private activities within the action area. This biological opinion addresses only those actions for which the KFO believes adverse effects may occur.

Action Area

For the purposes of this biological opinion, the KFO has determined the proposed action area to include the 1,310 acres of land under permanent deed restrictions (see Appendix A), which includes all construction and herbicide treatment areas plus a 50-foot buffer (total of 200 feet on each side of the streams).

Legend

- Property Boundar i

- Identified Streams

200Ft Deed Restricted Area

4 Proposed Action

The Corps issued a Clean Water Act Section 404 Department of the Army Permit for the KDFWR Rogers Gap Stream Restoration Project on December 4, 2013. As a condition of the permit, the applicant was required to conduct a survey for running buffalo clover each year, beginning in 2014, in any portions of the construction area that had not yet been disturbed. Surveys in 2014 documented previously unknown patches of running buffalo clover within unconstructed portions of the project, which has resulted in the reinitiation of section 7 consultation for this project. A total of eight patches of running buffalo clover have been documented on the site, with seven of these patches occurring within the action area.

Stream Restoration The KDFWR is using stream mitigation in-lieu fees to restore and preserve ephemeral, intermittent, and perennial stream types on the Roger's Gap Mitigation Site, which is located within the Veteran's Memorial Wildlife Management Area (WMA). Construction activities occur at only one location on the property at any given time, while other areas remain undisturbed. The disturbed areas are completed and seeded prior to moving to the next area. Construction activities commenced in late fall of 2013 and are expected to be completed in late spring/early summer 2015, with final tree planting occurring shortly after.

Riparian Enhancement Disturbed areas within the riparian buffer will be planted with tree and shrub species that are associated with running buffalo clover, as identified in the approved Mitigation Plan. Additionally, management of the riparian zones to control exotic species will occur throughout the five-year monitoring period. A ten-foot buffer will be maintained around all known patches for herbicide treatments meant to control herbaceous invasive plants, and three feet around woody invasive plants. Hand removal of invasive species will occur within these buffers.

Monitoring Monitoring of identified running buffalo clover populations will be included in the five- year monitoring effort (2016-2020). Each identified population will be visited annually, preferably when the plants are flowering, typically May-June. During the visit, the 50- foot buffers around each patch will be re-flagged, if necessary, and spatial measurements of the rooted crowns and photos will be taken. The information will be included in the annual monitoring report. If notable decline is observed from year-to-year during the five-year monitoring period, the KDFWR will work with the KFO to re-establish (with seed or plants) affected patches, as needed.

Long-term Management The current disturbance regimes on the site are anticipated to remain unchanged. Prior to land acquisition by KDFWR, the site was used for hunting, with mostly foot travel on the site, some ATV use, and small areas of agriculture for wildlife food plots. The limited ATV use prior to acquisition was mainly on upland roads and trails, not in stream corridors where the RBC populations were detected. After acquisition by KDFWR, the primary existing land use (hunting) has not changed, though ATV use has been restricted 5 within the deed restricted area. However, ATV use is not a factor in creating periodic disturbance regimes that running buffalo clover prefers. Instead, the disturbance factors primarily include stream scour on the floodplain, and wildlife trails. Therefore, disturbance regimes across the site which may affect running buffalo clover are not likely to change. Additionally, some identified populations (e.g. patches 4 & 5) are located in the bank of the creek channel; therefore, disturbance via scour is present. Scour within the channel at these locations is not expected to change due to the project elements.

Conservation measures have been incorporated into the design and construction. The approximate area of disturbance is contained within 200 acres. Most of the construction work is being completed by using a CAT 305.5E CR mini hydraulic excavator with a width of 6.5 feet to allow for improved maneuverability in forest stands with minimal tree removal and ground disturbance. Additionally, the disturbance area is not concentrated to one large area on the property, but instead is dispersed into narrow corridors across the property. The following figure shows the status of construction activities as of November 2014.

6 Project Conservation Measures The following conservation measures are summarized from the proposed action, and apply to all current (1-5, A, B) and future identified patches of running buffalo clover within the action area:

1. Marking of Patches and Avoidance — All identified running buffalo clover patches plus a 50 foot buffer will be marked with high visibility flagging and/or fencing, and construction activities within those areas will be avoided.

2. Monitoring and Reporting — Known running buffalo clover patches will be monitored annually for a period of five consecutive years (2016-2020).

7 3. Invasive Species Control and Management — Invasive species will be managed around running buffalo clover patches.

4. Permanent Protection — The action area will be protected under permanent deed restrictions.

5. Vegetation Restoration — All areas disturbed by project activities will be replanted with native tree and shrub species that are associated with running buffalo clover in Kentucky (USFWS 2007; appendix 3).

6. Remedial Measures — The KDFWR will work with the KFO to augment and/or re-establish any running buffalo clover patches that have shown a consistent decline of fifty percent or more over two or more monitoring periods. Declines will be determined by the number and/or area of rooted crowns.

STATUS OF THE SPECIES/CRITICAL HABITAT

Species/Critical Habitat Description

Listing Status Running buffalo clover (Trifblium stoloniferum) is a member of the pea family (Fabaceae) found in mesic habitat with partial to filtered sunlight. The species was designated as an endangered species on July 6, 1987 (50 FR 21478-21480) (USFWS 1987). At the time of listing, critical habitat was not designated. The Running Buffalo Clover Recovery Plan was approved on June 8, 1989 (USFWS 1989). The first Revision of the Recovery Plan provided updated information on the status and biology of the species and guides the recovery of running buffalo clover throughout its range (USFWS 2007). The Recovery Priority Number for this species is 8, which means this species has a moderate degree of threat and a high recovery potential.

Critical Habitat Critical habitat has not yet been designated for running buffalo clover.

Species Description Running buffalo clover usually acts as a perennial species, forming long stolons that root at the nodes (Figure 1). Plants produce erect flowering stems, 10-30 cm tall that send out long basal runners (stolons). The leaves of the runners have 1-2 cm long ovate-lanceolate stipules, whose tips gradually narrow to a distinctive point (attenuate tip). Erect stems arise from nodes along the stolon, with 2 large trifoliolate leaves at their summit, their obovate leaflets 2-3 cm long and wide (Gleason and Cronquist 1991). Flowering stalks (peduncles) originate from the upper axils, producing 9-12 mm round (sub-globose) flower heads with the corolla white, tinged with purple and exceeding the calyx (Gleason and Cronquist 1991). Running buffalo clover flowers from mid-April to June; fruiting occurs from May to July (Brooks 1983). Brooks (1983) provides a discussion of morphological and distinguishing features for this and related clover species. The chromosome number (2n=16) was found to be the same as that of other clovers native to the eastern United States (Campbell et al. 1988). 8 Because of the soloniferous growth form, individual plants can be difficult to distinguish. The Running Buffalo Clover Recovery Team has defined an individual plant as a rooted crown. A rooted crown is a rosette that is rooted into the ground (Figure 1). Rooted crowns may occur alone or be connected to other rooted crowns by stolons (or runners).

Figure 1

Life History

Running buffalo clover usually acts as a perennial species, forming long stolons that root at the nodes (Figure 1). Running buffalo clover flowers from mid-April to June; fruiting occurs from May to July (Brooks 1983). Running buffalo clover is reported to be visited by bees (Apis mellifera and Bombus spp.) and is cross-pollinated under field conditions. Taylor et al. (1994) suggested that running buffalo clover sets fewer seeds by self- pollination than by outcrossing, but that selfed seed set may be adequate to maintain the species in the wild. Franklin (1998) documented that although running buffalo clover is genetically self-compatible, it cannot self-pollinate. Self-compatibility provides plants reproductive assurance when outcrossing opportunities are limited (such as in small populations). Although researchers have speculated that inbreeding depression may have contributed to the decline of running buffalo clover (Hickey et al. 1991, Taylor et al. 1994), selfed seeds have been shown to germinate well and developed into vigorous plants (Franklin 1998).

Scarification is apparently essential for germination of running buffalo clover seeds. Little or no germination was observed in unscarified seeds, whereas 90%-100% germination was noted for scarified seeds (Campbell et al. 1988). In a subsequent study, seed germination and soils characterization revealed that germination was low when seeds were mechanically scarified; only 4.3% germination after 60 days (Hattenbach 1996). However, immersion in sulfuric acid scarified the seeds sufficiently after 40 minutes exposure to get 90% germination after only two days (Hattenbach 1996).

Unlike all other species within the genus Trifolium, running buffalo clover lacks a rhizobial associate. Populations in Kentucky, West Virginia, and Indiana have been examined for rhizobial nodules, but none have been found (Campbell et a/.1988, Morris et al. 2002). In addition to examining running buffalo clover for root nodules, Morris et

9 al. (2002) conducted isotope dilution studies to calculate quantities of nitrogen fixation and found no evidence that running buffalo clover plants were fixing nitrogen. Research suggests that running buffalo clover may have a low nitrogen requirement and may, therefore, never have developed the need for a rhizobial associate (Morris et al. 2002). In fact, running buffalo clover plants appear robust and healthy in many situations even without such an associate. Even after periodic drought and a 3-inch clipping regime (to simulate grazing/mowing), running buffalo clover appeared to persist much better than other associated plant species (Morris et al. 2002).

Population Dynamics

Substantial variability in the growth and development of running buffalo clover has been documented in both introduced and wild populations. The plant structure of running buffalo clover usually includes rooted crowns, or rooted rosettes, and stolons, or above- ground creeping stems, connecting several rooted or un-rooted crowns that eventually separate to leave "daughter" plants. At an introduced site on the Mark Twain National Forest in Missouri, most first-year seedlings displayed little or no stolon development. However, some individual seedlings developed stolons with rooted crowns and remained connected to the "parent" plant until the following spring. In the second or third year, the "parent" plant separated from the "daughter" plant, and both produced stolons (Hickey 1994, see also Figure 1).

In Ohio, developmental variation has been observed throughout the growing season. For example, between May and June, plants flower and produce stolons with associated un- rooted "daughter" crowns. By July, the "daughter" crowns begin to root but remain connected by stolons to the "parent" plant. Seedlings (first or second year plants) are often present at this time. Starting in September, stolons senesce, and "parent" and "daughter" crowns are no longer connected. This is a time of high mortality for "parent" plants (Becus 1993, Cochrane et al. 1994).

Long-term monitoring data suggest that running buffalo clover populations often display widely fluctuating population sizes. The cause for changes in population size may be due to disturbance, weather patterns, management strategy, or other unknown factors. Ohio's population data indicate that the numbers of rooted crowns in a given sub-population may vary widely over time, including variation within a given growing season (Becus 1993). One population in Ohio had 235 rooted crowns in 1992 and then disappeared for the next 3 years; in 2003, this same population had 1,157 plants. Similarly, a West Virginia sub-population consisting of 31 rooted crowns in 1990 and 1991, disappeared in 1992, and returned the next year. Running buffalo clover has not been observed at this location since 1993 and is now considered extirpated at this site.

Status and Distribution

Distribution Running buffalo clover usually is found in mesic habitats with partial to filtered sunlight and a prolonged pattern of moderate and periodic disturbance, such as grazing, mowing, trampling, or flood-scouring. Running buffalo clover is often found in regions with limestone or other calcareous bedrock underlying the site, though limestone soil is not a 10 requisite determining factor for the locations of populations of this species. Populations of running buffalo clover have been found in a variety of habitat types, including mesic woodlands, stream banks, grazed woodlots, mowed paths, old logging roads, trails, mowed wildlife openings within mature forests, savannahs, sandbars, and steep ravines (USFWS 2007, 2008).

Running buffalo clover has been historically documented from Arkansas, Illinois, Indiana, Kansas, Kentucky, Missouri, Ohio, and West Virginia. At the end of the 2007 field season, the total number of ranked populations included: 11 A-ranked, 27 B-ranked, 29 C-ranked, and 40 D-ranked (USFWS 2008). Running buffalo clover currently occurs in 116 populations in three geographical regions: Appalachian (West Virginia and southeastern Ohio), Bluegrass (southwestern Ohio, central Kentucky, and Indiana), and the Ozarks (Missouri) and the total number of ranked populations include: 10 A-ranked, 29 B-ranked, 30 C-ranked, and 47 D-ranked. Nine populations that were included in the 2008 USFWS review of the species are now presumed extirpated and one population that was presumed extirpated has been rediscovered (see Table 1). The majority of the populations occur within the Appalachian and Bluegrass regions, with the largest population in West Virginia and the most populations in Kentucky. Element occurrence rankings (EOs), which integrate population size and habitat integrity, indicate that known populations fall into all ranking categories (A-D; USFWS 2007, Table 1).

Reasons for Listing/Threats When running buffalo clover was listed as federally endangered (52 FR 21478), threats were listed as habitat destruction, competition from invasive species, lack of a rhizobial associate, small population sizes, herbivores, and pathogens. In 1995, the Running Buffalo Clover Recovery Team identified eight major threats to the species:

1) Any irreversible, permanent habitat loss such as road construction, that completely destroys the habitat and/or kills all plants and seeds within the path of the disturbance; 2) The closing of forest canopies through succession to the point of severe shading, leading to reduced flower and fruit production; 3) The elimination of bison leading to reduced seed dispersal and release of competing vegetation; 4) Small population size and associated fragility and susceptibility to catastrophe; 5) Excessive herbivory; 6) Viral and fungal diseases; 7) Reduction in pollinators; and 8) Competition from non-native invasive species (USFWS 2007, 2008).

As discussed in the most recent 5-year review, this species is mainly threatened by direct and indirect human impacts that lead to habitat loss, alteration, and significant degradation, such as the removal of bison from eastern forests, development, and the introduction of non-native invasive species (USFWS 2011). Additional threats to running buffalo clover include small population size for selected patches, inadequate seed dispersal, and poor seed quality (USFWS 2008). Climate change is a new and serious threat to this species, as precipitation patterns change and air temperatures increase, the hydrology of the habitat in which running buffalo clover currently exists may change 11 (IPCC 2007; Hayhoe 2010). Additionally, an increased amount of carbon dioxide (CO2) in the atmosphere may cause trees and other competitors for sunlight to grow faster (Amthor 1995) and shade out existing populations of running buffalo clover. Non-native invasive species may become more aggressive and invasive with higher levels of CO2 (Rogers et al. 2008).

Recovery According to recovery criteria outlined in the recovery plan's first revision (USFWS 2007), running buffalo clover can be downlisted from endangered to threatened when 1) at least 17 populations are distributed across the species' range and rankings to achieve a 95% probability of persistence for 20 years; 2) at least 1 A-ranked and 3 B-ranked populations either meet the 95% probability of persistence for 20 years or are producing seeds, are increasing in size, and are being managed; and 3) at least 17 populations from Criterion 1 are located on protected land or are being protected by a conservation agreement. Based on the analysis conducted for the most recent 5-year review, all of the above downlisting criteria have been met (USFWS 2011).

For running buffalo clover to be delisted from the List of Endangered and Threatened Species, the following criteria must be met: 1) 34 populations must be distributed across at least two regions and the number of populations in each rank is based on to achieving a 95% probability of persistence for 20 years; 2) at least 2 A-ranked and 6 B- ranked populations either meet the 95% probability of persistence for 20 years or are producing seeds, are increasing in size, and are being managed; and 3) downlisting Criterion 3 is met for all populations described in delisting Criterion 1. Based on the analysis conducted for the most recent 5-year review, only delisting Criterion 1 has been met (USFWS 2011).

Analysis of the Species/Critical Habitat Likely to be Affected

Critical habitat has not been designated for running buffalo clover; therefore, no critical habitat will be affected.

ENVIRONMENTAL BASELINE

Under section 7 (a) (2) of the Act, when considering the "effects of the action" on federally listed species, the USFWS is required to take into consideration the environmental baseline. The environmental baseline includes past and ongoing natural factors and the past and present impacts of all Federal, State, or private actions and other activities in the action area (50 CFR 402.02), including Federal actions in the area that have already undergone section 7 consultation, and the impacts of State or private actions that are contemporaneous with the consultation in process.

12 Status of the Species within the Action Area

The portion of the species that occurs within the action area is considered the Roger's Gap occurrence or population which is one of more than 115 extant populations across the range of running buffalo clover. This population was first discovered in April 2012 and consists of at least eight patches with an undetermined number of rooted crowns (see figure on the following page). Based on the numerous patches of running buffalo clover within and adjacent to the action area, the KFO believes other, currently unknown patches are likely to exist. The floodplain scour and other occasional disturbances appear to provide sufficient disturbance for running buffalo clover and the species appears to be persisting within the action area.

EFFECTS OF THE ACTION

Factors to be Considered

• Proximity of the action — We describe known species locations and designated critical habitat in relation to the action area and proposed action; • Distribution — We describe where the proposed action will occur and the likely impacts of the activities; • Timing — We describe the likely effects in relation to sensitive periods of the species' lifecycle; • Nature of the effects — We describe how the effects of the action may be manifested in elements of a species' lifecycle, population size or variability, or distribution, and how individual plants may be affected; • Duration — We describe whether the effects are short-term, long-term, or permanent; • Disturbance frequency — We describe how the proposed action will be implemented in terms of the number of events per unit of time; • Disturbance intensity — We describe the effect of the disturbance on a population or species; and • Disturbance severity — We describe how long we expect the adverse effects to persist and how long it would it take a population to recover.

Proximity and Distribution of the Action: The construction activities associated with the ongoing stream restoration will result in significant soil disturbance. This soil disturbance will be at least 50 feet away from all known patches but could disturb or destroy currently undocumented patches, plants, and/or seeds.

13 Rogers Gap RBC Locations

Legend

RBC Locations_2012 Survey • RBC Locations_2014 Survey

- Property Boundary Restoration Preservation No action

H2 11.1 October 2014 1 29 717

14 Riparian enhancement activities are being conducted within riparian areas to improve habitat conditions by removing exotic and invasive plants as well as planting known associates of running buffalo clover. By their very nature, these activities will be conducted in close proximity to running buffalo clover. A 10-foot buffer will be maintained around all known patches for the herbicide treatment of herbaceous invasive plants, and 3 feet around woody invasive plants. Hand removal will occur within these buffers.

Timing: Adverse effects to running buffalo clover from construction activities will occur between March and July 2015. Riparian enhancement activities (tree/shrub planting; invasive species control) will begin post-stream construction and will occur periodically over a five-year monitoring period.

Nature of the effect: The proposed construction activities will result in soil disturbance which could damage seeds and plants through physical harm (crushing, uprooting, etc.) or by moving the plants or seeds to unsuitable habitats. Buffers are expected to protect known patches from these activities but not any undiscovered patches or dispersed seeds. Additionally, the construction activities could move seed and/or plants to other locations within the project area.

Application of herbicides to control invasive species will occur outside the established buffers, but could drift into known running buffalo clover patches through wind or rain, killing or injuring running buffalo clover plants and seeds. Additionally, unknown patches will not have any buffers and could accidentally be killed by the herbicide application.

Duration: Effects to running buffalo clover associated with the construction activities will be short- term with impacts occurring within a narrow timeframe (spring/summer 2015) and ceasing once construction has ended. However, the effects associated with riparian enhancement activities (tree/shrub planting, invasive species control) are expected to be long-term. Disturbances to the soil and vegetation associated with tree/shrub planting and invasive species control may occur multiple times over the five-year monitoring period and the results of these activities are expected to persist beyond the monitoring period.

Disturbance frequency: Disturbances associated with the stream construction will occur only once. The disturbance associated with the riparian enhancement activities will occur multiple times. While the planting of trees and shrubs will likely only occur once (or possibly twice if replanting is required); however, herbicide applications and hand weeding is likely to occur multiple (2-10) depending upon what is needed to achieve the removal of invasive plant species.

15 Disturbance intensity: The intensity of this disturbance to this specific population and the patches it contains is likely to be low considering the conservation measures (e.g. buffers, replanting) offered as part of the proposed action. Additionally, the number of plants which may be affected by the action is low considering the range-wide population.

Disturbance severity: Running buffalo clover is able to expand its population both through seed and stolons/runners. As such, even if some of the known and/or unknown patches do not survive, the severity of this disturbance to the overall population is minor.

Analyses for Effects of the Action

Beneficial effects Beneficial effects are those effects of an action that are wholly positive, without any adverse effect, on a listed species or designated critical habitat. There are no beneficial effects to running buffalo clover that would result from this project.

Direct Effects Direct effects are the direct or immediate effects of the agency action on the species or its habitat. Direct effects include the effects of any interrelated or interdependent actions. Interrelated actions are part of the proposed action and depend on the proposed action for justification. Interdependent actions are those actions that have no independent utility apart from the action under consultation. Future federal actions that are not a direct effect of the action under consideration are not considered in this biological opinion. There are no foreseeable interrelated or interdependent actions associated with this project.

Stream Restoration — All construction activities have been modified to avoid direct impacts to known patches of running buffalo clover, however unknown patches and seeds could be damaged, destroyed, or relocated by these actions.

Riparian Enhancement — The Rogers Gap Mitigation Plan provides for the replanting of disturbed areas and invasive species management within these areas. Disturbed areas within the riparian buffer will be planted with tree and shrub species that are associated with running buffalo clover, as identified in the approved Mitigation Plan. Additionally, management of the riparian zones to control exotic species will occur throughout the five-year monitoring period. A 10-foot buffer will be maintained around all known patches for the herbicide treatment of herbaceous invasive plants, and a three-foot buffer will be maintained around woody invasive plants that occur within the patches. Hand removal will occur within these buffers. While performing this work, field technicians will be within these buffers. Running buffalo clover may be trampled, but such impacts are not expected to significantly affect the plant, because mild disturbances, such as these, are part of its evolutionary strategy. Herbicide application may cause mortality of individual plants that occur outside of established buffers, and unintentional herbicide drift could kill plants in established buffers, impacting known patches.

16 Indirect Effects Indirect effects are caused by or result from the proposed action, are later in time and reasonably certain to occur because of the proposed action.

Long-term Management — The project site will be managed by the KDFWR as a wildlife management area and will be open to the public for hunting, hiking and other outdoor activities. The disturbances from the foot traffic associated with these activities are not expected to damage running buffalo clover.

Riparian Enhancement — It is expected that the removal of invasive species from the riparian buffer areas will improve the habitat for running buffalo clover. Indirect effects would include the increase of the running buffalo clover compatible species (e.g. Spicebush) and an increase in the running buffalo clover population.

Species' Response to a Proposed Action

Numbers of Individuals within the Action Area

There are currently seven known patches of running buffalo clover within the action area. Using the seven known patches and assuming an average patch size of 25 crowns, we estimate a minimum of 175 individual plants within the action area. Additional unknown patches may exist within the action area where suitable habitat occurs. All individuals within this action area are part of a single population (element occurrence) which extends beyond the action area. We do not expect the proposed actions to results in adverse effects to a significant number of individuals; however it is possible that some of the patches or individual crowns will not survive the stream restoration and riparian enhancement activities. However, the disturbances caused by the proposed action could also stimulate new patches, as has happened on other stream restoration projects in the Bluegrass Region of Kentucky.

Species' Sensitivity to Change

Running buffalo clover is a species that requires some periodic and moderate amount of disturbance, such as flood-scouring. The earthwork required for the restoration of stream channels is far more intense and may damage or kill plants and/or seeds. Additionally, construction activities could move seed and/or plants to other locations within the project area.

The riparian buffer enhancement activities are likely to benefit the individual plants within the action area by improving habitat conditions through the removal of invasive species, a known threat to running buffalo clover. However, herbicide applications have the potential to negatively impact known populations if it "drifts" into the buffered areas, or is applied to unknown patches of running buffalo clover.

Species' Resilience/Recovery Rate

Running buffalo clover is a perennial forb that can reproduce by seed (selfed or crossed) and by its stolons. However, population sizes can fluctuate dramatically between years 17 and the reasons for these fluctuations can include a number of factors, including weather conditions, timing of management activities, frequency of natural disturbances, and other unknown causes. As an herbaceous species, little time is required for new plants to establish under suitable conditions. Additionally, KDFWR has agreed to work with the KFO to repopulate (via seed or plants) any areas where the running buffalo clover declines or is eliminated as a result of this action.

CUMULATIVE EFFECTS

Cumulative effects include the effects of future state, tribal, local or private actions that are reasonably certain to occur in the action area considered in this biological opinion. Future federal actions that are unrelated to the proposed action are not considered in this section because they require separate consultation under section 7 of the Act. This biological opinion only addresses those activities that are authorized by the Corps. Thus, any future State, local, or private actions that could potentially occur within the action area would require a permit or other authorization from the Corps and will require compliance with the consultation provisions of Section 7 of the ESA as a second level, site-specific analysis of an individual project. There are no additional State, local or private actions reasonably certain to occur on within the action area at this time. Therefore, cumulative effects, as defined by the ESA, will not occur.

CONCLUSION

After reviewing the status of running buffalo clover, the environmental baseline for the action area, the effects of the proposed action, and the cumulative effects, it is the KFO's biological opinion that the research, as proposed, is not likely to jeopardize the continued existence of running buffalo clover. No critical habitat has been designated for this species; therefore, none will be affected.

Running buffalo clover is a species moving toward recovery, as documented by the recommended downlisting in the 2011 Five-Year Review. The populations found within the action area and likely to be adversely affected by the project are recently discovered and were not included in the 2011 assessment. These patches represent a very small portion of the range-wide population and are unlikely to be wholly eliminated by this action. In the event, that patches are eliminated, the KDFWR has agreed to work with KFO to re-establish any lost patches and augment any patches that decline during the monitoring period.

After considering the status of running buffalo clover within the action area and throughout its' range, and the effects of all the proposed action, the KFO believes that the species' reproduction, numbers and distribution will not be appreciably reduced as a result of the proposed action.

INCIDENTAL TAKE STATEMENT

Sections 9 of the Act and federal regulation pursuant to section 4(d) of the Act prohibit the take of endangered and threatened species, respectively, without a special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or 18 collect, or to attempt to engage in any such conduct. Harm is further defined by the USFWS to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns such as breeding, feeding, or sheltering. Harass is defined by the USFWS as intentional or negligent actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns, which include, but are not limited to, breeding, feeding, or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited taking under the Act provided that such taking is in compliance with the terms and conditions of this incidental take statement.

Section 7(b)(4) and 7(o)(2) of the Act generally do not apply to listed plants species. However, limited protection of listed plants from take is provided to the extent that the Act prohibits the removal and reduction to possession of federally listed endangered plants or the malicious damage of such plants on areas under federal jurisdiction, or the destruction of endangered plants on non-federal areas in violation of state law or regulations or in the course of any violation of a state criminal trespass law.

AMOUNT OR EXTENT OF TAKE ANTICIPATED

Running buffalo clover is a plant; therefore, no take is identified or authorized.

REASONABLE AND PRUDENT MEASURES

Because running buffalo clover is a plant, no reasonable and prudent measures are required.

TERMS AND CONDITIONS

Because running buffalo clover is a plant, no terms and conditions are required.

CONSERVATION RECOMMENDATIONS

Section 7 (a) (1) of the Act directs Federal agencies to use their authorities to further the purposes of the Act by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help carry out recovery plans, or to develop information.

In order for the KFO to be kept informed of actions minimizing or avoiding adverse effects or benefiting listed species or their habitats, we request notification if either of the conservation recommendations provided below is carried out.

1. The Corps and/or KDFWR should develop a management plan for running buffalo clover within the Rogers Gap Mitigation Site (also known as the Veterans Memorial WMA) and manage the site to benefit running buffalo clover. 19 2. Once stream restoration actions have been completed, the Corps and/or KDFWR should introduce running buffalo clover to other suitable habitats within the action area and maintain the species through periodic disturbances as may be allowed by the deed restriction and upon the approval of the Corps and the Kentucky Division of Water.

REINITIATION NOTICE

This concludes formal consultation on the action(s) outlined in the request. As written in 50 CFR 402.16, reinitiation of formal consultation is required where discretionary Corps involvement or control over the action has been retained (or is authorized by law) and if: (1) the amount or extent of incidental take is exceeded; (2) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion; (3) the action is later modified in a manner that causes an effect to the listed species or critical habitat not considered in this opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action. In instances where the amount or extent of incidental take is exceeded, any operations causing such take must cease until reinitiation.

Sincerely, fflAj Virgil Lee Andrews, Jr. Field Supervisor

20 LITERATURE CITED

Amthor, J.S. 1995. Terrestrial higher-plant response to increasing atmospheric (CO2) in relation to the global carbon-cycle. Global Change Biology Vol. 1.4: 243-274.

Becus, M.S. 1993. Running buffalo clover monitoring in the Hamilton County Park District, Ohio. A report to the Hamilton County Park District.

Brooks, M.S. 1993. Trifolium stoloniferum, running buffalo clover: Description, distribution, and current status. Rhodora 85(842):343-354.

Campbell, J.J.N., M. Evans, M.E. Medley, and N.L. Taylor. 1988. Buffalo clovers in Kentucky (Trifolium stoloniferum and T. reflexum): Historical records, presettlement environment, rediscovery, endangered status, cultivation and chromosome number. Rhodora 90(864): 399-418.

Cochrane, K.E, J.L. Windus, and M.S. Becus. 1994. Survey and monitoring of running buffalo clover (Trifolium stoloniferum) in Ohio. A report to Region 3, U.S. Fish and Wildlife Service.

Franklin, C.J. 1998. Self-compatibility and variation in seed production among Ohio populations of federally endangered Trifolium stoloniferum (Fabaceae). M.S. Thesis. The Ohio State University, Columbus, OH.

Gleason, H.A. and A. Cronquist. 1991. Manual of vascular plants of northeastern United States and Adjacent Canada. 2nd Edition. New York Botanical Garden, Bronx.

Hattenbach, M.J. 1996. Edaphic relations of an endangered plant, Trifolium stoloniferum Muhl. ex. A. Eaton. M.S. Thesis. The Ohio State University, Columbus, OH.

Hayhoe, K., J. VanDorn, T. Croley II, N. Schlegal. 2010. Regional climate change projects for Chicago and the US Great Lakes. Journal of Great Lakes Research 36: 7-21.

Hickey, R.J., M.A. Vincent, and S.I. Guttman. 1991. Genetic variation in running buffalo clover (Trifolium stoloniferum, Fabaceae). Conservation Biology 5(3): 309-316.

Intergovernmental Panel on Climate Change (IPCC). 2007. Climate Change 2007: The physical science basis. Summary for the policymakers. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, IPCC Secretariat, World Meteorological Organization and United Nations Environment.

21 Kentucky's Comprehensive Wildlife Conservation Strategy. 2005. Kentucky Department of Fish and Wildlife Resources, #1 Sportsman's Lane, Frankfort, Kentucky 40601. http://fw.ky.gov/kfwis/stwg/ (Date updated 9/21/2005)

Miller, Kara and David Grochov. 2004. The Invasive Shrub, Lonicera maackii, Reduces Growth and Fecundity of Perennial Forest Herbs, Oecologia, Vol. 139, No. 3. 359-375 pp.

Morris, D.R., V.C. Baligar, T.M. Schuler, and P.J. Harmon. 2002. Biological nitrogen fixation and habitat of running buffalo clover. Journal of Plant Nutrition 25(4): 735-746.

Pickering, J. 1989. Conservation efforts boost hopes for rare clover. The Center for Plant Conservation 4(2):3.

Rogers, H.H., G.B. Runion, S.A. Prior, A.J. Price, H.A. Torbert, D.H. Gjerstad. 2008. Effects of elevated atmospheric CO2 on invasive plants: Comparison of purple and yellow nutsedge (Cyperus rotundus L. and C. esculentus L.) Journal of Environmental Quality. 37:395-

Taylor, N.L., J.M. Gillet, J.J.N. Campbell, and S. Berger. 1994. Crossing and morphological relationships among native clovers of eastern North America. Crop Science 34(4):1097-1100.

U.S. Fish and Wildlife Service (USFWS). 1987. Endangered and threatened wildlife and plants: determination of endangered status for Trifolium stoloniferum (running buffalo clover). Federal Register 52(108): 21478-21480.

U.S. Fish and Wildlife Service (USFWS). 1989. Trifolium stoloniferum Recovery Plan. U.S. Fish and Wildlife Service, Twin Cities, MN. 26pp.

U. S. Fish and Wildlife Service (USFWS). 2007. Running buffalo clover (Trifolium stoloniferum) Recovery Plan: First Revision. U. S. Fish and Wildlife Service, Fort Snelling, Minnesota. 76 pp.

U. S. Fish and Wildlife Service (USFWS). 2008. Running buffalo clover (Trifolium stoloniferum) 5-year review. U. S. Fish and Wildlife Service, Fort Snelling, Minnesota. 18 pp.

U. S. Fish and Wildlife Service (USFWS). 2011. Running buffalo clover (Trifolium stoloniferum) 5-year review. U. S. Fish and Wildlife Service, Fort Snelling, Minnesota. 26 pp.

22 APPENDIX A: Rogers Gap Deed Restrictions

Rogers Gap Deed Restrictions This property was acquired (in part) with funds provided by the U. S. Department of Interior, Fish and Wildlife Service (USFWS), pursuant to the Wildlife Restoration Program, and will be managed for the purpose of this Grant Award (KY W-46-21) and in accordance with applicable federal and Kentucky law. This property may not be disposed of in any manner, or used for purposes inconsistent with the Program for which it was acquired, without the prior approval of the Regional Director - Southeast Region, U. S. Fish and Wildlife Service.

This property was purchased (in-part) with funds authorized by the Louisville District Corps of Engineers (Corps) in consultation with an Interagency Review Team (IRT) comprised of representatives of the USFWS, the U.S. Environmental Protection Agency, the Kentucky Division of Water, and the Kentucky Department of Fish and Wildlife Resources. Funds were provided from the Mitigation Fund authorized by Kentucky Revised Statute 150.255 for the purpose of compensatory mitigation pursuant to requirements of Section 404 of the Clean Water Act set forth in 33 C.F.R. Part 332 and will be managed for this purpose in accordance with applicable federal and Kentucky law. The property may not be disposed of in any manner, or used in a manner inconsistent with the purpose for which it was acquired, without the prior approval of the Corps in consultation with the IRT.

This property was acquired for wildlife management and to permanently protect aquatic resources within the property by preserving, restoring, or enhancing its current natural and scenic condition for fish, plants, and wildlife to insure the area is available for wildlife management, hunting, fishing, hiking and wildlife watching in perpetuity. Wildlife management activities including sustainable forestry management that are not within 200 feet of any stream channel shall be deemed consistent with the purposes specified in this deed. This property must continue to serve the purposes for which it was acquired.

Motorized recreational vehicles, all-terrain vehicles (ATV), horseback riding, and horse trails, shall be prohibited. Land disturbance activities, capital improvements including new utility lines and new roadways, shall be prohibited unless approved in writing by the USFWS and the Corps in consultation with the IRT.

Any deviation, activity not expressly stated in this deed, or amendments to this deed shall have prior written approval of the Corps and USFWS.