Schedule E - Example FWS Concurrence Letter.pdf

05/15/2024 12:51:02 UTC

United States Department of the Interior

FISH AND WILDLIFE SERVICE

Michigan Ecological Services Field Office

2651 Coolidge Road Suite 101 East Lansing, MI 48823-6360

Phone: (517) 351-2555 Fax: (517) 351-1443

In Reply Refer To:

Project code: 2024-0090682 Project Name: Van Single Wells

Subject: Verification letter for the project named 'Van Single Wells' for specified threatened and endangered species that may occur in your proposed project location consistent with the Michigan Endangered Species Determination Key (Michigan DKey)

Dear Madeline Jazdzyk:

The U.S. Fish and Wildlife Service (Service) received on May 15, 2024 your effect determination(s) for the 'Van Single Wells' (the Action) using the Michigan DKey within the Information for Planning and Consultation (IPaC) system. The Service developed this system in accordance with the Endangered Species Act of 1973 (ESA) (87 Stat.884, as amended; 16 U.S.C.

1531 et seq.).

Based on your answers and the assistance of the Service’s Michigan DKey, you made the following effect determination(s) for the proposed Action:

Species Listing Status Determination Eastern Massasauga (=rattlesnake) (Sistrurus catenatus) Threatened NLAA Indiana Bat (Myotis sodalis) Endangered No effect Monarch Butterfly (Danaus plexippus) Candidate No effect Northern Long-eared Bat (Myotis septentrionalis) Endangered No effect Pitcher's Thistle (Cirsium pitcheri) Threatened No effect Rufa Red Knot (Calidris canutus rufa) Threatened No effect Snuffbox Mussel (Epioblasma triquetra) Endangered No effect Tricolored Bat (Perimyotis subflavus) Proposed

Endangered No effect

Whooping Crane (Grus americana) Experimental Population, Non- Essential

No effect

The Service will notify you within 30 calendar days if we determine that this proposed Action does not meet the criteria for a “may affect, not likely to adversely affect” (NLAA) determination

Project code: 2024-0090682 05/15/2024 12:51:02 UTC

DKey Version Publish Date: 11/30/2023 2 of 13 for Federally listed species in Michigan. If we do not notify you within that timeframe, you may proceed with the Action under the terms of the NLAA concurrence provided here. This verification period allows the Michigan Ecological Services Field Office to apply local knowledge to evaluation of the Action, as we may identify a small subset of actions having impacts that were unanticipated. In such instances, the Michigan Ecological Services Field Office may request additional information to verify the effects determination reached through the Michigan DKey.

Your agency has met consultation requirements by informing the Service of your “No Effect” determination(s). No consultation is required for species that you determined will not be affected by the Action.

Please provide sufficient project details on your project homepage in IPaC (Define Project, Project Description) to support your conclusions and the Service’s 30-day review period. Failure to disclose important aspects of your project that would influence the outcome of your effects determinations may negate your determinations and invalidate this letter. If you have site-specific information that leads you to believe a different determination is more appropriate for your project than what the Dkey concludes, you can and should proceed based on the best available information.

The Service recommends that you contact the Service or re-evaluate the project in IPaC if: 1) the scope or location of the proposed Action is changed; 2) new information reveals that the action may affect listed species or designated critical habitat in a manner or to an extent not previously considered; 3) the Action is modified in a manner that causes effects to listed species or designated critical habitat; or 4) a new species is listed or critical habitat designated. If any of the above conditions occurs, additional consultation with the Service should take place before project changes are final or resources committed.

For non-Federal representatives: Please note that when a project requires consultation under section 7 of the Act, the Service must consult directly with the Federal action agency unless that agency formally designates a non-Federal representative (50 CFR 402.08). Non-Federal representatives may prepare analyses or conduct informal consultations; however, the ultimate responsibility for section 7 compliance under the Act remains with the Federal agency. If the Federal agency concurs with your determination, the project as proposed has completed section 7 consultation. All documents and supporting correspondence should be provided to the Federal agency for their records.

Freshwater Mussels:

Based on your answers to the Michigan DKey, the Action will have ”No Effect” on Federally listed mussels. However, state-listed mussels may occur in your Action area. Contact the Michigan Department of Natural Resources to determine effects to state-listed mussels.

Freshwater mussels are one of the most critically imperiled groups of organisms in the world. In North America, 65% of the remaining 300 species are vulnerable to extinction (Haag and Williams 2014). Implementing measures to conserve and restore freshwater mussel populations directly improves water quality in lakes, rivers, and streams throughout Michigan. An adult freshwater mussel filters anywhere from 1 to 38 gallons of water per day (Baker and Levinton 2003, Barnhart pers. comm. 2019). A 2015 survey found that in some areas mussels can reduce

DKey Version Publish Date: 11/30/2023 3 of 13 the bacterial populations by more than 85% (Othman et al. 2015 in Vaughn 2017). Mussels are also considered to be ecosystem engineers, stabilizing substrate and providing habitat for other aquatic organisms (Vaughn 2017). In addition to ecosystem services, mussels play an important role in the food web, contributing critical nutrients to both terrestrial and aquatic habitats, including those that support sport fish (Vaughn 2017). Taking proactive measures to conserve and restore freshwater mussels will improve water quality, which has the potential to positively impact human health and recreation in the State of Michigan.

Bald and Golden Eagles:

Bald eagles, golden eagles, and their nests are protected under the Bald and Golden Eagle Protection Act (54 Stat. 250, as amended, 16 U.S.C. 668a-d) (Eagle Act). The Eagle Act prohibits, except when authorized by an Eagle Act permit, the “taking” of bald and golden eagles and defines “take” as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.” The Eagle Act’s implementing regulations define disturb as “…to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.”

If the Action may impact bald or golden eagles, additional coordination with the Service under the Eagle Act may be required. For more information on eagles and conducting activities in the vicinity of an eagle nest, please visit https://www.fws.gov/library/collections/all-about-eagles. In addition, the Service developed the National Bald Eagle Management Guidelines (May 2007) in order to assist landowners in avoiding the disturbance of bald eagles. The full Guidelines are available at https://www.fws.gov/media/national-bald-eagle-management-guidelines-0.

If you have further questions regarding potential impacts to eagles, please contact Chris Mensing, Chris_Mensing@fws.gov or 517-351-2555.

Monarch butterfly and other pollinators In December 2020, after an extensive status assessment of the monarch butterfly, we determined that listing the monarch under the Endangered Species Act is warranted but precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. Therefore, the Service added the monarch butterfly to the candidate list. The Service will review its status each year until we are able to begin developing a proposal to list the monarch.

The Endangered Species Act does not establish protections or consultation requirements for candidate species. Some Federal and State agencies may have policy requirements to consider candidate species in planning. We encourage implementing measures that will remove or reduce threats to these species and possibly make listing unnecessary.

For all projects, we recommend the following best management practices (BMPs) to benefit monarch and other pollinators.

Monarch and Pollinator BMP Recommendations

Consider monarch and other pollinators in your project planning when possible. Many pollinators are declining, including species that pollinate key agricultural crops and help maintain

DKey Version Publish Date: 11/30/2023 4 of 13 natural plant communities. Planting a diverse group of native plant species will help support the nutritional needs of Michigan’s pollinators. We recommend a mix of flowering trees, shrubs, and herbaceous plants so that something is always blooming and pollen is available during the active periods of the pollinators, roughly early spring through fall (mid-March to mid-October). To benefit a wide variety of pollinators, choose a wide range of flowers with diverse colors, heights, structure, and flower shape. It is important to provide host plants for any known butterfly species at your site, including native milkweed for Monarch butterfly. Incorporating a water source (e.g., ephemeral pool or low area) and basking areas (rocks or bare ground) will provide additional resources for pollinators.

Many pollinators need a safe place to build their nests and overwinter. During spring and summer, leave some areas unmowed or minimize the impacts from mowing (e.g., decrease frequency, increase vegetation height). In fall, leave areas unraked and leave plant stems standing. Leave patches of bare soil for ground nesting pollinators.

Avoid or limit pesticide use. Pesticides can kill more than the target pest. Some pesticide residues can kill pollinators for several days after the pesticide is applied. Pesticides can also kill natural predators, which can lead to even worse pest problems.

Planting native wildflowers can also reduce the need to mow and water, improve bank stabilization by reducing erosion, and improve groundwater recharge and water quality.

Resources:

https://www.fws.gov/initiative/monarchs https://www.fws.gov/library/collections/pollinators

Wetland impacts:

Section 404 of the Clean Water Act of 1977 (CWA) regulates the discharge of dredged or fill material into waters (including wetlands) of the United States. Regulations require that activities permitted under the CWA (including wetland permits issued by the Michigan Department of Environment, Great Lakes, and Energy (EGLE)) not jeopardize the continued existence of species listed as endangered or threatened. Permits issued by the U.S. Army Corps of Engineers must also consider effects to listed species pursuant to section 7 of the Endangered Species Act.

The Service provides comments to the agencies that may include permit conditions to help avoid or minimize impacts to wildlife resources including listed species. For this project, we consider the conservation measures you agreed to in the determination key and/or as part of your proposed action to be non-discretionary. If you apply for a wetland permit, these conservation measures should be explicitly incorporated as permit conditions. Include a copy of this letter in your wetland permit application to streamline the threatened and endangered species review process.

Mussel References Baker, S.M. and J. Levinton. 2003. Selective feeding by three native North American freshwater mussels implies food competition with zebra mussels. Hydrobiologia 505(1):97-105.

Haag, W. R. and J.D. Williams, 2014. Biodiversity on the brink: an assessment of conservation strategies for North American freshwater mussels. Hydrobiologia 735:45-60.

Morowski, D., L. James and D. Hunter. 2009. Freshwater mussels in the Clinton River, southeastern Michigan: an assessment of community status. Michigan Academician XXXIX:

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131-148.

Othman, F., M.S. Islam, E.N. Sharifah, F. Shahrom-Harrison and A. Hassan. 2015. Biological control of streptococcal infection in Nile tilapia Oreochromis niloticus (Linnaeus, 1758) using filter-feeding bivalve mussel Pilsbryoconcha exilis (Lea, 1838). Journal of Applied Ichthyology 31: 724-728.

Vaughn, C.C. 2017. Ecosystem services provided by freshwater mussels. Hydrobiologia DOI:

10.1007/s10750-017-3139-x.

1.The Group 3 is a specific list of stream segments within known counties that contain habitat likely to be occupied by listed mussels (see Michigan Freshwater Mussel Survey Protocol and Relocation Procedures for additional information).

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Summary of conservation measures for your project You agreed to the following conservation measures to avoid adverse effects to listed species and our concurrence is only valid if the measures are fully implemented. These must be included as permit conditions if a permit is required and/or included in any contract language.

Eastern massasauga Materials used for erosion control and site restoration must be wildlife-friendly. Do not use erosion control products containing plastic mesh netting or other similar material that could entangle eastern massasauga rattlesnake (EMR). Several products for soil erosion and control exist that do not contain plastic netting including net-less erosion control blankets (for example, made of excelsior), loose mulch, hydraulic mulch, soil binders, unreinforced silt fences, and straw bales. Others are made from natural fibers (such as jute) and loosely woven together in a manner that allows wildlife to wiggle free.

To increase human safety and awareness of EMR, those implementing the project must first review the EMR factsheet (available at https://www.fws.gov/media/eastern-massasauga-rattlesnake-fact-sheet), and watch MDNR’s “60-Second Snakes: The Eastern Massasauga Rattlesnake” video (available at https://youtu.be/~PFnXe_e02w).

During project implementation, report sightings of any federally listed species, including EMR, to the Service within 24 hours.

The project will not result in permanent loss of more than one acre of wetland or conversion of more than 10 acres of EMR upland habitat (uplands associated with high quality wetland habitat) to other land uses.

The action will not include temporary or permanent lighting of roadway(s), facility(ies), and/or parking lot(s).

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Action Description You provided to IPaC the following name and description for the subject Action.

1. Name

Van Single Wells

2. Description

The following description was provided for the project 'Van Single Wells':

Plug and abandon orphan wells.

The approximate location of the project can be viewed in Google Maps: https:// www.google.com/maps/@42.94233545,-85.81845485862254,14z https://www.google.com/maps/@42.94233545,-85.81845485862254,14z https://www.google.com/maps/@42.94233545,-85.81845485862254,14z

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QUALIFICATION INTERVIEW

Are there any possible effects to any listed species or to designated critical habitat from your project or effects from any other actions or projects subsequently made possible by your project?

Select "Yes" even if the expected effects to the species or critical habitat are expected to be

1) extremely unlikely (discountable), 2) can't meaningfully be measured, detected, or evaluated (insignificant), or 3) wholly beneficial.

Select "No" to confirm that the project details and supporting information allow you to conclude that listed species and their habitats will not be exposed to any effects (including discountable, insignificant, or beneficial effects) and therefore, you have made a "no effect" determination for all species. If you are unsure, select YES to answer additional questions about your project.

Yes This determination key is intended to assist the user in the evaluating the effects of their actions on Federally listed species in Michigan. It does not cover other prohibited activities under the Endangered Species Act (e.g., for wildlife: import/export, Interstate or foreign commerce, possession of illegally taken wildlife, purposeful take for scientific purposes or to enhance the survival of a species, etc.; for plants: import/export, reduce to possession, malicious destruction on Federal lands, commercial sale, etc.) or other statutes. Click yes to acknowledge that you must consider other prohibitions of the ESA or other statutes outside of this determination key.

Yes Is the action the approval of a long-term (i.e., in effect greater than 10 years) permit, plan, or other action? (e.g., a new or re-issued hydropower license, a land management plan, or other kinds of documents that provide direction for projects or actions that may be conducted over a long term (>10 years) without the need for additional section 7 consultation).

No Is the action being funded, authorized, or carried out by a Federal agency?

Yes Does the action involve the installation or operation of wind turbines?

No

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Are there at least 30 days prior to your action occurring? Endangered species consultation must be completed before taking any action that may have effects to listed species. The Service also needs 30 days to review projects before we can verify conclusions in some dkey output letters. For example, if you have already started some components of the project on the ground (e.g., removed vegetation) before completing this key, answer “no” to this question. The only exception is if you have a Michigan Field Office pre-approved emergence survey (i.e., if you have conducted pre-approved emergence surveys for listed bats before tree removal, you can still answer yes to this question).

Yes Does the action involve constructing a new communication tower or modifying an existing communications tower?

No Does the activity involve aerial or other large-scale application of any chemical (including insecticide, herbicide, etc.)?

No Does your project include water withdrawal (ground or surface water) greater than 10,000 gallons/day?

No Will your action permanently affect hydrology?

No Will your action temporarily affect hydrology?

No Will your project have any direct impacts to a stream or river (e.g., Horizontal Directional Drilling (HDD), hydrostatic testing, stream/road crossings, new storm-water outfall discharge, dams, other in-stream work, etc.)?

No Does your project have the potential to indirectly impact the stream/river or the riparian zone (e.g., cut and fill, horizontal directional drilling, hydrostatic testing, construction, vegetation removal, discharge, etc.)?

No Will your action disturb the ground or existing vegetation? This includes any off road vehicle access, soil compaction, digging, seismic survey, directional drilling, heavy equipment, grading, trenching, placement of fill, pesticide application, vegetation management (including removal or maintenance using equipment or chemicals), cultivation, development, etc.

Yes Is the action a utility-scale solar development project?

No

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[Hidden semantic] Does the action intersect the MOBU AOI?

Automatically answered Yes Under the ESA, monarchs remain warranted but precluded by listing actions of higher priority. The monarch is a candidate for listing at this time. The Endangered Species Act does not establish protections or consultation requirements for candidate species. Some Federal and State agencies may have policy requirements to consider candidate species in planning. We encourage implementing measures that will remove or reduce threats to these species and possibly make listing unnecessary. If your project will have no effect on monarch butterflies (for example, if your project won't affect their habitat or individuals), then you can make a "no effect" determination for this project. Are you making a "no effect" determination for monarch?

Yes [Hidden Semantic] Does the action intersect the Eastern massasauga rattlesnake area of influence?

Automatically answered Yes Does your action involve prescribed fire?

No Will this action occur entirely in the Eastern massasauga rattlesnake inactive season (October 16 through April 14)?

No Will this action occur entirely in the Eastern massasauga rattlesnake active season (April 15 through October 15)?

No Will the action result in permanent loss of more than one acre of wetland or conversion of more than 10 acres of uplands of potential Eastern massasauga rattlesnake habitat (uplands associated with high quality wetland habitat) to other land uses?

No Will you use wildlife safe materials for erosion control and site restoration and eliminate the use of erosion control products containing plastic mesh netting or other similar material that could ensnare Eastern massasauga rattlesnake?

Yes Will you watch MDNR's "60-Second Snakes: The Eastern Massasauga Rattlesnake (EMR)" video, review the EMR factsheet or call 517-351-2555 to increase human safety and awareness of EMR?

Yes https://www.fws.gov/initiative/protecting-wildlife/make-change-wildlife-friendly-erosion-control-products https://youtu.be/-PFnXe_e02w https://youtu.be/-PFnXe_e02w https://www.fws.gov/media/eastern-massasauga-rattlesnake-fact-sheet

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Will all action personnel report any Eastern massasauga rattlesnake observations, or observation of any other listed threatened or endangered species, during action implementation to the Service within 24 hours?

Yes [Semantic] Does the action area intersect the snuffbox area of influence?

Automatically answered Yes [Hidden Semantic] Does the action area intersect the rufa red knot area of influence?

Automatically answered Yes [Hidden Semantic] Does the action area intersect the whooping crane (ex. Pop) area of influence?

Automatically answered Yes Have you determined that the action will have no effect on individuals within the whooping crane nonessential experimental population (NEP)?

Yes [Hidden Semantic] Does the action area intersect the area of influence for Pitcher's thistle?

Automatically answered Yes The project has the potential to affect federally listed bats. Does the action area contain any known or potential bat hibernacula (natural caves, abandoned mines, or underground quarries)?

No Has a presence/absence bat survey or field-based habitat assessment following the Service's Range-wide Indiana Bat and Northern Long-eared Bat Summer Survey Guidelines been conducted within the action area?

No Does the action involve removal/modification of a human structure (barn, house or other building) known to contain roosting bats?

No Does the action include removal/modification of an existing bridge or culvert?

No Does the action include temporary or permanent lighting of roadway(s), facility(ies), and/ or parking lot(s)?

No Does the action include one or more of the following: (1) tree cutting/trimming, (2) prescribed fire, (3) pesticide (including insecticide and/or rodenticide), and/or (4) herbicide/fungicide application?

No https://www.fws.gov/library/collections/range-wide-indiana-bat-and-northern-long-eared-bat-survey-guidelines https://www.fws.gov/library/collections/range-wide-indiana-bat-and-northern-long-eared-bat-survey-guidelines

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[Hidden Semantic] Does the action area intersect the Indiana bat AOI?

Automatically answered Yes [Hidden Semantic] Does this project intersect the northern long-eared bat area of influence?

Automatically answered Yes [Hidden semantic] Does the action intersect the Tricolored bat AOI/SLA/range?

Automatically answered Yes The tricolored bat was proposed for listing as endangered on September 13, 2022. In Michigan, the tricolored bat was rare pre-white nose syndrome (WNS) and is exceedingly rare post-WNS. The species has been observed in 12 Michigan counties to date, largely during the fall or winter. With very few exceptions, the species has not been observed in Michigan in the summer months, and no maternity colonies have been found. During winter, tricolored bats hibernate in caves, abandoned mines, and abandoned tunnels ranging from small to large in size. During spring, summer and fall months, they roost primarily among leaf clusters of live or recently dead deciduous/hardwood trees.

Are you making a no effect determination on this project for the tricolored bat?

Yes

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IPAC USER CONTACT INFORMATION

Agency: Michigan Department of Environment, Great Lakes, and Energy Name: Madeline Jazdzyk Address: 2100 M-32 City: Gaylord, MI State: MI Zip: 49751-9766 Email jazdzykm@michigan.gov Phone: 9898894701

You have indicated that your project falls under or receives funding through the following special project authorities:

BIPARTISAN INFRASTRUCTURE LAW (BIL) (OTHER)