Programmatic Biological Evaluation (NLAA) on the Effects of Transportation Activities and Projects Regularly Undertaken in North Carolina, South Carolina, and Georgia Prepared in Collaboration through an Interagency Agreement by: National Marine Fisheries Service, Southeast Regional Office 263 13th Avenue South, St. Petersburg, Florida 33701 With and for: Federal Highway Administration, Office of Project Development and Environmental Review 1200 New Jersey Avenue SE, Washington, DC 20590 Assisted by: Volpe, The National Transportation Systems Center, U.S. Department of Transportation 55 Broadway, Kendall Square, Cambridge, MA 02142 September 2018 1. Executive Summary Pursuant to Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. §1531 et seq.), each federal agency is required to ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of those species. When the action of a federal agency may affect a listed species or its critical habitat, that agency is required to consult with the National Marine Fisheries Service (NMFS), who administers the ESA for most listed marine species, anadromous fish species, and their critical habitat. The Federal Highway Administration (FHWA) aims to streamline consultation and improve conservation for listed species and critical habitat under the purview of NMFS in North Carolina (NC), South Carolina (SC), and Georgia (GA). As part of this effort, the FHWA has developed a programmatic biological evaluation (BE) for common types of transportation projects that State or local Departments of Transportation (DOTs) conduct with federal funding and/or approval. The purpose of the consultation is: • to streamline the ESA consultation process that is required when these projects “may affect” federally listed species and critical habitats in NC, SC, and GA; and • promote better conservation outcomes from these projects for all listed species and critical habitat. This consultation does not cover all projects or project types the FHWA funds or approves. The BE defines the scope and criteria applicable to a subset of transportation projects that qualifies the project for coverage under the programmatic consultation. Separate section 7 consultation is required for projects that are outside the scope and criteria of the BE or to address newly-listed species and/or their critical habitat not covered by the BE. Projects that are likely to adversely affect listed species or critical habitat are not eligible to use the programmatic consultation. For transportation projects that require other Federal approvals, such as U.S. Army Corps of Engineers (USACE) permits under the Clean Water Act, the FHWA will generally serve as the lead Federal agency for ESA consultation purposes. The FHWA may use this programmatic consultation, consult on a case-by-case basis, or use another applicable programmatic consultation for its projects. Based on the analysis provided herein, we conclude that the subset of transportation activities and projects to be covered by this programmatic consultation: • will result in no effect to listed species and critical habitat; or, • may affect, but are not likely to adversely affect listed species and critical habitat. 2 2. Table of Contents 1. Executive Summary .................................................................................................................... 1 2. Table of Contents........................................................................................................................... 3 3. Background Statutory and Regulatory Information...................................................................... 4 4. Proposed Action ............................................................................................................................ 7 4.1 Activities and Projects Included in this Programmatic Consultation and Project Design Criteria ............................................................................................................................. 8 4.2 Estimated Number of Activities/Projects ............................................................................ 45 4.3 Assumptions ......................................................................................................................... 47 4.4 Project-Specific Review ....................................................................................................... 49 4.5 Programmatic Review ....................................................................................................... 50 5. Effects of the Action .................................................................................................................... 51 5.1 Potential Effects to Species and Critical Habitat ................................................................. 54 5.2 Noise ..................................................................................................................................... 89 5.3 Increased Vessel Traffic ...................................................................................................... 99 5.4 Summary/Aggregate Effects of Proposed Action to Listed Species and C Habitat ......... 100 6. Status of Species and Critical Habitat Likely to be Affected by the Proposed Action ............ 100 7. Conclusion and Effects Determinations .................................................................................... 154 Literature Cited .............................................................................................................................. 154 Appendix A: Noise Effects Matrix and Best Management Practices (BMPs) ............................. 180 Appendix B: Project-level Review Submission Format ............................................................... 206 Appendix C: Protected Resources Educational Signs ................................................................. 209 Appendix D: Sturgeon Distribution and Atlantic Sturgeon Designated Critical Habitat ............ 211 3 3. Background Statutory and Regulatory Information Section 7(a)(1) requires Federal agencies, in consultation with NMFS, to utilize their authorities to further the purposes of the ESA by carrying out programs for the conservation of listed species. Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. §1531 et seq.), requires that each federal agency insure, in consultation with NMFS, that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of those species. When the action of a federal agency may affect a listed species or its designated critical habitat, that agency is required to consult with either the National Marine Fisheries Service (NMFS) or the U.S. Fish and Wildlife Service (USFWS), or both, depending upon the species that may be affected. Consultations on most listed marine species and their designated critical habitat are conducted between the action agency and NMFS. Consultations are concluded after NMFS concurs or determines the action is not likely to adversely affect listed species or critical habitat; or issues a Biological Opinion (“Opinion”) that determines whether the action agency has insured the proposed action is not likely to jeopardize the continued existence of any federally listed species, or destroy or adversely modify designated critical habitat. If there is a “no jeopardy or adverse modification” finding the Opinion will include an Incidental Take Statement (ITS). The ITS states the amount or extent of incidental take anticipated and provides non-discretionary measures that the action agency must implement to minimize the impact of the anticipated/authorized take on the species. The Opinion may also recommend discretionary conservation measures. The issuance of an Opinion detailing NMFS’s findings concludes ESA Section 7 consultation. If an action agency determines that a proposed action “may affect” a listed species or critical habitat then formal consultation is required, unless the action agency determines, and NMFS concurs in writing, that the action is not likely to adversely affect any listed species or critical habitat. NMFS may conclude informal consultation when the effects of the proposed action are found to be discountable, insignificant, or entirely beneficial. ”Entirely beneficial” means all effects are beneficial and there are no adverse effects. Determinations based on the net effect of a proposed action, where an action with beneficial effects also includes some adverse effects, is not the basis for a “not likely to adversely affect” determination. In such cases NMFS may be required to issue an Opinion. NMFS may conclude ESA Section 7 consultation with the issuance of a “concurrence letter.” This document represents the FHWA’s Biological Evaluation of impacts associated with regularly occurring transportation projects and activities and request for informal programmatic concurrence on these projects and activities that would occur throughout the states of North Carolina, South Carolina, and Georgia. These categories of activities and projects include: Activities (common to several project types) 1. Installation, maintenance, and removal of temporary erosion, turbidity,