**SUPPLEMENT TO THE 1991 BIOLOGICAL OPINION**

**FOR THE PROPOSED**

**BRIDGES AND ALIGNMENTS MODIFICATION**

**TO THE**

**KENTUCKY LOCK ADDITION PROJECT**

**LIVINGSTON AND MARSHALL COUNTIES, KENTUCKY**

**Prepared by:**

**James C. Widlak**

**U.S. Fish and Wildlife Service**

**Ecological Services Field Office**

**446 Neal Street**

**Cookeville, Tennessee**

**January 2000**

**INTRODUCTION**

The U.S. Fish and Wildlife Service (Service) has reviewed the biological
assessment for the **Kentucky Lock Addition Bridges and Alignments**
project located in **Livingston and Marshall** Counties, **Kentucky**.
The **Nashville District Corps of Engineers=** November 4, 1999, request
for continuation of consultation was received on November 8, 1999. This
document represents a supplement to the Service=s 1991 biological
opinion on the effects of the Kentucky Lock Addition Project on the
federally endangered **Indiana bat (*Myotis sodalis***), **orange-footed
pearly mussel (*Plethobasus cooperianus*), pink mucket pearly mussel
(*Lampsilis abrupta*), ring pink (*Obovaria retusa*), and fanshell
(*Cyprogenia stegaria***) in accordance with Section 7 of the Endangered
Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.). The
Corps of Engineers has determined that the proposed action will not
affect the federally threatened Price=s potato bean (*Apios priceana*).
Upon review of the biological assessment, the Service concurs with this
finding and, therefore, no further consultation is needed for this
species at this time.

0 [Consultation History]{.underline}

The Nashville District, Corps of Engineers, initiated Section 7
consultation for proposed bendway improvements on the Cumberland River
by letter of November 20, 1984, addressed to Warren Parker of the
Service=s Asheville, North Carolina, Field Office. The Service=s
response, dated January 22, 1985, indicated that six listed species (two
bats, one bird, three mussels) might occur in the project impact area.
The Corps concluded that the proposed action would not affect two of the
mussel species based on a 1982 survey of the Cumberland River, the bald
eagle, and two listed bat species. A biological assessment was submitted
to the Service=s Cookeville Office on May 2, 1988, with a finding of Ano
effect@ to the third mussel species. However, the assessment reported
that two candidate snail species were known to occur in areas proposed
for rock ledge removal, and the Corps of Engineers proposed to
transplant individuals of both species to other areas in the river
containing suitable habitat. The Service concurred with the Corps of
Engineers= finding by letter of May 16, 1988. In June, 1990, the Corps
of Engineers released a Draft Interim Feasibility Study and Draft
Environmental Impact Statement for the project. The scope of the project
had changed dramatically; the only alternative under consideration was
construction of a new lock at Kentucky Dam. The Service informed the
Corps of Engineers that reinitiation of consultation would be necessary,
and that a new biological assessment would be needed. Consultation was
reinitiated on June 22, 1990. The Service response, dated July 18, 1990,
presented a list of twelve endangered and threatened species that might
occur in the project impact area. The Nashville District, Corps of
Engineers, submitted a biological assessment on January 2, 1991, with
Amay affect@ findings for five species: the Indiana bat and four
mussels. Determinations of Ano effect@ were made for one bat, two birds,
four mussels, and one plant. The assessment was accompanied by a request
for formal consultation. The Service issued its biological opinion on
March 28, 1991, concluding that the proposed project was not likely to
jeopardize the continued existence of any of the twelve listed species.

On October 7, 1998, the Corps of Engineers issued a public notice for a
proposed modification to the original project. The modification
consisted of the relocation of the U.S. 62/641 bridge downriver from the
dam and existing lock. The Service=s response, dated November 4, 1998,
stated that the proposal constituted a change in the project which
invalidated the 1991 biological opinion and required reinitiation of
formal consultation. After subsequent discussions and meetings between
Service and Corps of Engineers representatives, the Service agreed that
the 1991 biological opinion is still valid and that a supplement to that
biological opinion would be issued to address the proposed modification.
The Service=s agreement is based on the assumption that the remainder of
the project will be implemented as stated in the 1991 Final Feasibility
Study and Environmental Impact Statement.

This supplement is based on information provided in the August 4, 1999,
biological assessment; the March 28, 1991, biological opinion; the
November 1991 Final Feasibility Study and Environmental Impact
Statement; the October 7, 1998, U.S. 62/641 bridge relocation project
proposal; an October 22, 1999, meeting between Tom Swor and Richard
Tippit of the Nashville District, John Jenkinson of the Tennessee Valley
Authority, and Tyler Sykes and Lee Barclay of the Service; a subsequent
conference call with Tom Swor; an August 1999 field investigation to the
Corps= Waterways Experiment Station; and other sources of information. A
complete administrative record of this consultation is on file in the
Cookeville Ecological Services Office, 446 Neal Street, Cookeville,
Tennessee.

Although other environmental reviews (including Fish and Wildlife
Coordination Act reports and NEPA analyses) may be compiled
simultaneously with a Section 7 consultation package, they should be
separate entities. The contents of the biological opinion and incidental
take statement, including effects to listed or proposed species or
critical habitats, and appropriate measures to avoid or minimize those
effects, may be addressed in Service comments and recommendations under
the Fish and Wildlife Coordination Act, Section 404(m) of the Clean
Water Act, the National Environmental Policy Act, and other authorities.
The consultation package may be prepared as a stand-alone document under
separate signature, or one cover transmittal may be used as long as the
consultation package is identified as a separate entity.

**BIOLOGICAL OPINION**

0 [Project Description]{.underline}

The proposed project modification addressed in this supplement is the
relocation of the U.S. 62/641 bridge over the Tennessee River. The
existing bridge is located on top of Kentucky Dam. Relocation of this
bridge will avoid the need to close the highway for more than 4 years
during construction of the new lock. The highway bridge and the railroad
bridge (part of the originally proposed project) would cross the
downriver lock approach channel and would have piers on the downriver
end of the switchyard island and in the main channel of the Tennessee
River. Piers will be supported on sets of shafts drilled inside casings
into the river bottom using barge-mounted equipment. Drill cuttings will
be brought to the surface within the casings, transferred to a barge and
disposed of on an upland site. The total amount of river bottom
disturbed by piers for both bridges will be approximately four
one-hundredths (0.04) of an acre.

Fill for the highway bridge approaches will be obtained from previously
identified off site borrow areas at the nearby Vulcan Materials quarry
or from private lands 3.5 miles from the construction site. The proposed
modification also includes additional equipment staging and storage
areas. These areas will be located on an open field adjacent to the
tailwater access road and an open field downriver from the west
embankment of the dam. Additionally, a new access road will be
constructed near the western end of the new highway embankment.

On the east side of the dam, the new highway alignment will diverge from
the existing road and follow new alignment through two curves before
connecting with the new bridge. This portion of the approaches will be
constructed primarily on fill material.

Any excess materials generated during construction of the new bridge and
approaches will be disposed of at a site owned by Vulcan Materials. The
site is located on the east side of the river and has been previously
disturbed by borrow and disposal activities. Road access to this site
already exists.

The remainder of the Kentucky Lock Addition Project (i.e., construction
of the new navigation lock and associated construction) is described in
the November 1991 Final Feasibility Study and Environmental Impact
Statement, and in the Service=s March 1991 biological opinion. The Corps
of Engineers has stated that, based on current available information,
relocation of the highway bridge will not require modifications to or
addition of construction activities which have not been previously
considered.

The Corps of Engineers has included measures designed to avoid or
minimize adverse effects to the listed species addressed in this
supplement. Drilling of pier supports inside casings will eliminate the
need to construct larger coffer dams. Silt control measures will be
employed to the maximum extent possible during construction of the
approaches. The highway bridge and railroad bridge alignments will avoid
impacts to a cypress slough and a bottomland hardwood forest which will
maintain potential bat roosting and foraging habitat. Measures will be
employed to avoid runoff from equipment staging/cleaning areas. Areas of
the riverbanks disturbed by construction activities will be stabilized
as soon as possible to avoid excessive sedimentation of the river.

0 [Background Information]{.underline}

Information about the biology and ecology of the orange-footed pearly
mussel, pink mucket pearly mussel, ring pink, and fanshell is contained
in the 1991 biological opinion. No species that might be affected by the
proposed project or the modification addressed in this supplement have
been added to the Service=s *List of Endangered and Threatened Plants
and Animals* since the biological opinion was issued in 1991.

Since 1991, some new information has become available regarding the
summer habitat requirements of the Indiana bat. Recent studies have
revealed that upland forest may provide important roosting and foraging
habitat for the Indiana bat. Snags (i.e., standing dead trees) or live
trees with exfoliating bark, holes, or crevices provide suitable
roosting sites for reproductive females during the maternity season
(April through August). Additionally, reproductive female and juvenile
Indiana bats have been recently found in areas not previously thought to
support maternity colonies (e.g., Harlan County, Kentucky; Cherokee
National Forest, Tennessee; Fort Campbell, Kentucky/Tennessee). It is
therefore possible that the forested habitats in the project area
provide suitable summer habitat for the Indiana bat.

0 [Environmental Baseline]{.underline}

The environmental baseline is described in the 1991 biological opinion.
Only one significant action has occurred in the project area since
issuance of the biological opinion and the Final Feasibility Study and
Environmental Impact Statement. The Tennessee Valley Authority
constructed two barge mooring cells on the west side of the river just
upriver from the I-24 bridge. A pre-construction mussel survey conducted
in the Afootprints@ of these cells revealed the presence of a dense
mussel bed. Although no endangered species were found, more than 18,000
mussels were removed from the cell footprints and relocated to the
mussel bed on the east side of the river.

0 [Direct/Indirect Effects]{.underline}

Highway and bridge construction activities can have significant adverse
effects on aquatic species if not implemented with protection of those
species in mind. Construction of bridge approaches requires removal of
vegetation and disturbance of riverbanks. Such de-stabilization can
result in excessive runoff of sediment into the river. Construction of
in-river bridge piers can result in suspension of large amounts of
substrate which settles downriver. Large amounts of suspended sediment
in the water column reduce light penetration. It can irritate or clog
the gills of fish and other aquatic organisms, inhibiting respiration.
When sediment settles, it blankets the river bottom and can smother
bottom-dwelling organisms, fish eggs, or larval fish. Runoff from
equipment staging/cleaning areas can contain pollutants or toxicants
such as petroleum, oil, grease, and detergents. Some of these materials
are extremely toxic to aquatic organisms and can cause significant
mortality to fish, mussels, and other aquatic species.

Construction activities that result in mortality to fish or which cause
fish to abandon the area indirectly affect the mussel community by
eliminating the fish which serve an important role as hosts for the
mussel glochidia. Mussels can also be indirectly affected if the bridge
piers are constructed or oriented in a way that results in alteration of
the flow, scour, and/or deposition patterns of the river. If this
occurs, barge tows may have to maneuver differently to approach the new
lock chamber, which could potentially result in scour of currently
stable substrate that supports mussel populations.

Construction of the bridge approaches could affect bats as a result of
removal of vegetation, primarily forested habitat. Removal of large
trees would eliminate actual or potential roost sites; forest removal
would also alter foraging habitat and eliminate potential travel
corridors between roosting and foraging habitats.

0 [Cumulative Effects]{.underline}

Cumulative effects include the effects of future State, 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 pursuant to Section 7 of the
ESA.

Construction of the new lock and associated bridges will accommodate
higher levels of river traffic on the Tennessee River. The increase in
barge traffic likely to occur as a result of the project may make the
area much more attractive for river-related commercial and/or industrial
development. This could result in an increase in the number of proposals
for construction of industrial or manufacturing facilities, with
associated barge mooring, loading, and fleeting facilities on the lower
Tennessee River. Actions such as these could have significant adverse
impacts on the habitats in and adjacent to the river, and to the aquatic
and terrestrial resources that depend on them.

0 [Conclusion]{.underline}

After reviewing the current status of the Indiana bat, pink mucket
pearly mussel, orange-footed pearly mussel, ring pink, and fanshell, the
environmental baseline for the action area, the direct and indirect
effects of the proposed highway relocation, and the cumulative effects,
it is the Service=s biological opinion that the relocation of the U.S.
62/641 bridge and approaches, as proposed, is not likely to jeopardize
the continued existence of the Indiana bat, pink mucket pearly mussel,
orange-footed pearly mussel, ring pink, or fanshell, and is not likely
to destroy or adversely modify designated critical habitat. No critical
habitat has been designated for these five species, therefore, none will
be affected.

**INCIDENTAL TAKE**

Sections 4(d) and 9 of the ESA, as amended, prohibit taking (harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
attempt to engage in any such conduct) of listed species of fish or
wildlife without a special exemption. Harm is further defined to include
significant habitat modification or degradation that results in death or
injury to listed species by significantly impairing behavioral patterns
such as breeding, feeding, or sheltering. Harass is defined as 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
any take of listed animal species that results from, but is not the
purpose of, carrying out an otherwise lawful activity conducted by the
Federal agency or the applicant. 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 a prohibited taking provided that
such taking is in compliance with the terms and conditions of this
incidental take statement.

The measures described below are non-discretionary, and must be
implemented by the agency so that they become binding conditions of any
project plans, as appropriate, in order for the exemption in Section
7(o)(2) to apply. The Corps of Engineers has a continuing duty to
regulate the activity covered by this incidental take statement. If the
Corps of Engineers (1) fails to adhere to the terms and conditions of
the incidental take statement through enforceable terms that are
included as part of the project, and/or (2) fails to ensure compliance
with these terms and conditions, the protective coverage of Section
7(o)(2) may lapse.

0 [Amount or Extent of Incidental Take]{.underline}

The Service anticipates incidental take of the Indiana bat, pink mucket
pearly mussel, ring pink, orange-footed pearly mussel, and fanshell will
be difficult to detect for the following reasons: individuals of all of
these species are relatively small. The bats roost under loose bark or
in crevices of trees, and the mussels occur in or under the substrate on
the river bottom. It would be difficult to locate a dead or injured
individual or to attribute death or injury to construction activities.
In addition, the proposed bridge construction will occur in an area that
is highly impacted by releases from the floodgates and powerhouse.
Monitoring the mussels in this area would be difficult and could be
unsafe due to high and unpredictable currents during periods of release.
However, the following level of take of these listed species can be
anticipated by loss of habitat. Indiana bats roost under loose bark or
in crevices of snags or live trees. The trees that serve as roosts are
generally the larger individuals (i.e., those trees 6 inches in diameter
at breast height, or larger). Removal of such trees renders the habitat
unsuitable; the bats would seek suitable roosts elsewhere. Four
one-hundredths of an acre of river bottom could be occupied by the piers
of the highway and railroad bridges. Any mussels inhabiting that area
would be taken as a result of the drilling and construction activities.
Incidental take of mussels downriver should be minimal if the Corps
implements appropriate controls to avoid or minimize sedimentation and
runoff from construction areas.

0 [Effect of the Take]{.underline}

In the accompanying biological opinion, the Service determined that this
level of take is not likely to result in jeopardy to the Indiana bat,
pink mucket pearly mussel, orange-footed pearly mussel, ring pink, or
fanshell, or destruction or adverse modification of critical habitat.

[Reasonable and Prudent Measures]{.underline}

The Service believes the following reasonable and prudent measures are
necessary and appropriate to minimize take of the Indiana bat, pink
mucket pearly mussel, orange-footed pearly mussel, ring pink, and
fanshell:

46140. Avoid direct mortality to Indiana bats. By conducting removal of
       actual or potential roost trees at the appropriate time of year,
       mortality to reproductive females, juveniles, and males can be
       avoided.

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1.  Avoid loss of suitable mussel habitat downriver from the
    construction site. By implementing appropriate protective measures,
    loss or alteration of habitat and associated mussel communities can
    be prevented.

[Terms and Conditions]{.underline}

In order to be exempt from the prohibitions of Section 9 of the ESA, the
Corps of Engineers must comply with the following terms and conditions,
which implement the reasonable and prudent measures described above.
These terms and conditions are non-discretionary.

1.  Any removal of trees that is required for construction of the bridge
    approaches will be conducted during the time when Indiana bats are
    not presentBi.e., September 15 to March 31. If all trees can not be
    removed during this period, all trees 6 inches in diameter at breast
    height and larger will be removed between September 15 and March 31;
    the remainder of vegetation may then be removed at any time. Removal
    of trees will be kept to the minimum amount needed to accommodate
    the bridge and approaches.

2.  An evaluation will be conducted to determine the amount of suitable
    roosting habitat for Indiana bats in the project area. The purpose
    of the evaluation will enable the Corps to estimate the amount of
    suitable habitat will be removed. This evaluation will consist of an
    estimate of the total amount of forested habitat around the bridge
    approaches. An estimate will be made of the density of trees six
    inches in diameter at breast height and larger.

3.  Best Management Practices for sediment control will be employed
    during all phases of construction. Structures including, but not
    limited to, silt fences, brush barriers, sediment basins, and staked
    hay bales will be used singly or in combination as needed to
    maximize sediment control. These structures will be installed before
    construction commences and will be inspected, maintained, and
    cleaned regularly as necessary to maintain maximum efficiency. If
    inspections reveal that sediment is not properly controlled,
    construction will cease and will not resume until appropriate
    repairs are completed.

4.  Equipment staging/cleaning areas will be located such that runoff
    from those areas does not enter the river. Appropriate diversions,
    berms, etc., will be constructed to divert runoff away from the
    river.

5.  Spoil material generated during construction (e.g., drill spoil,
    fill material) will not be disposed of in or near the river. This
    material will be hauled to an approved upland site for disposal.

Upon locating a dead, injured, or sick specimen of an endangered or
threatened species, initial notification must be made to the nearest
Fish and Wildlife Service Law Enforcement Office (Mr. Gene Moore,
Special Agent, 600 Federal Place, #327-A, Louisville, Kentucky 40201;
telephone 502/582-5989). Care should be taken in handling sick or
injured specimens to ensure effective treatment and care and in handling
dead specimens to preserve biological materials in the best possible
state for later analysis of cause of death. In conjunction with the care
of sick or injured endangered species or preservation of biological
materials from a dead animal, the finder has the responsibility to
ensure that evidence intrinsic to the specimen is not unnecessarily
disturbed.

The reasonable and prudent measures, with their implementing terms and
conditions, are designed to minimize incidental take that might
otherwise result from the proposed action. With implementation of these
measures the Service believes that no more than four one-hundredths of
an acre of mussel habitat and no more than 20 percent of suitable
Indiana bat roosting habitat will be incidentally taken. If, during the
course of the action, this minimized level of incidental take is
exceeded, such incidental take represents new information requiring
review of the reasonable and prudent measures provided. The Federal
agency must immediately provide an explanation of the causes of the
taking and review with the Service the need for possible modification of
the reasonable and prudent measures.

**CONSERVATION RECOMMENDATIONS**

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

We believe that this provision of the ESA places an obligation on all
Federal agencies to implement positive programs to benefit listed
species, and a number of recent court cases appear to support that
belief. Agencies have some discretion in [choosing]{.underline}
conservation programs, but Section 7(a)(1) places a mandate on agencies
to implement some type of programs to benefit listed species.

The Service re-emphasizes the statement made in the 1991 biological
opinion that the river reach below Kentucky Dam warrants a high level of
protection because of its designation by the State of Kentucky as a
mussel sanctuary, and because it supports one of the last and best
remnants of the pre-impoundment mussel fauna of the Tennessee River.
This fauna represents a stock which could potentially be used to augment
populations or re-establish populations in other reaches of the river in
the future. Such activities would contribute toward recovery of listed
mussel species or toward improving the status of mussel species of
concern, which could eliminate the need to list them as endangered or
threatened species.

Therefore, we strongly encourage the Corps of Engineers to implement one
or more of the conservation recommendations presented in the 1991
biological opinion to benefit mussel resources in the Tennessee River
Basin. If those recommendations are not acceptable, we encourage the
Corps of Engineers to fulfill its mandate under Section 7(a)(1) of the
ESA and develop and implement other conservation actions to benefit
mussel resources.

In order for the Service to be kept informed of actions minimizing or
avoiding adverse effects or benefitting listed species or their
habitats, the Service requests notification of the implementation of any
conservation recommendations.

**REINITIATION - CLOSING STATEMENT**

This concludes consultation on the action outlined in the consultation
request. As provided in 50 CFR Sec. 402.16, reinitiation of formal
consultation is required where discretionary Federal agency 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 agency action that may affect listed
species or critical habitat in a manner or to an extent not considered
in this supplement; (3) the agency action is subsequently modified to
include activities that cause an effect to the listed species or
critical habitat not considered in this supplement; 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 pending
reinitiation.