07 - Attachment N - Monmouth County Programmatic BO (scanned).pdf

BIOLOGICAL OPINION ON THE EFFECTS OF

r COMPLETION OF SECTIONS I AND II OF THE ATLANTIC COAST OF

NEW JERSEY BEACH EROSION CONTROL PROJECT

r

SEA BRIGHT TO MANASQUAN, MONMOUTH COUNTY, NEW JERSEY

ON THE PIPING PLOVER (eharadrius melodus) AND S EAB EACH AMARANTH (Amaranthus pumilus)

Prepared for:

U.S. Army Corps of Engineers New York District

New York, New York 10278-0090

September 2002

United States Department of the Interior

FISH AND WILDLIFE SERVICE

New Jersey Field Oflice 927 North Main Street, Building D Pleasantdle, New Jasey 08232

Tel: 6091646 93 10 Faxdo91646 0352

, http://njfieldoffice.fws.gou SEP 19 2l&!

Frank Santomauro, Chief- Planning Division, CENAN-PLE New York District, Army Corps of Engineers Jacob K. Javits Federal Building 26 Federal Plaza New York, New York 10278-0090

Dear Mr. Santomauro:

This transmits the U.S. Fish and Wildlife Service's (Service) final Biological Opinion (Opinion), in accordance with Section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C.

153 1 et seq.) (ESA), on the effects of the U.S. Army Corps of Engineers, New York District's (Corps) proposed continuing construction of Sections I and 11 of the Atlantic Coast of New Jersey Sandy Hook to Barnegat Inlet Beach Erosion Control Project (BECP), Monmouth County, New Jersey on the federally listed (threatened) piping plover (Charadn'us melodus) and seabeach amaranth (Amaranthuspumilus). The proposed project consists of a 50-year p r o m of beach nourishment fbm Sea Bright Borough to Manasquan Borough for the primary purpose of providing storm protection to upland development. The first regularly scheduled renourishment is cu~ently under construction, and includes parts of Sea Bright and Monmouth Beach Boroughs in Section I, and part of Spring Lake Borough in Section II.

ONGOING CONSTRUCTION

Federal regulations at 50 CFR Part 402.14 state that a federal agency shall make no irreversible or irretrievable commitment of resources that would prevent formulating or implementing any reasonable and prudent alternatives for the action, until the requirements of Section 7(a)(2) are satisfied. Pursuant to this regulation, an irreversible federal action that is likely to adversely affect a federally listed species may not commence prior to issuance of the Service's find Opinion Although work on the 2002 renourishment cycle began in advance of this find Opinion, your May 17,2002 letter states that the Corps "will adhere to the terms of the draft piological Opinion] including the 1,000-meter Cpiping plover nesting area] buffer, for this m e n t renourishment cycle." Additionally, the Corps May 17 letter withdraws a previous Corps request for major modifications to the conservation measures contained in the draft Opinion.

Therefore, this linal Opinion is not substantially different fiom the Service's December 6,2001 ! draft Opinion. An overview of changes h m the draft, and responses to specific Corps -comments, are provided at the end of this letter.

PROPOSED STUDIES

r 1 Your May 17,2002 letter indicates that the C&s intends to omm mission a study of the movement of piping plover chicks in the project area during upcoming nesting seasons to r dctennine an appropriate b a e r size for Corps cohstruction activities. The Service appreciates Corps efforts to collect sound data that can inform future Section 7 consultations reg-g the r project. An investigation of piping plover prey base recovery time following renourishment within nesting areas is required under the terms of this Opinion. Additional studies are recommended at the end of this Opinion. The Service requests-thorough coordination with this r office regarding any Corps-sponsored studies of federally listeaspecies in New Jersey, and that the Corps work closely with this office to develop an integrated study plan for listed species within the project area.

r BUIWERs AND DEFllWTIoN OF A NESTING AREA

The Corps purpose in undertaking the aforementioned chick movement study is to reduce the size of a piping plover "nesting area," as de6ned in this Opinion, as well as the size of buffers afforded unfledged chicks when sand placement cannot be avoided within a nesting area during the nesting r season. Two such occasions are included in the current project description, each occunring either I between March 15 and April 15, or between July 3 1 and the fledging of the last chick in the nesting area The Service concurs that a'scientifically credible study of chick movements within the project - .

area, as proposed by the Corps, will assist in future decisions regarding buffers necessary to protect r unfledged chicks h m sand placement and other project activities.

r Please note that the Service-recommended inclusion of 2,000-meter buffer zones in the definition I of a "nesting area" was based not only on the movements of unfledged chicks, but also on the r need to protect habitat early in the nesting season to allow the natural shifting and expansion of nesting areas. The s i w c a n t expansion in 2002 of the Sea Bright North nesting area supports the Service's 6nding that work within suitable habitat between 200 and 1,000 meters h m the r previous year's nest sites between March 15 and late-June is likely to prevent piping plovers h m establishing territories and nests, thexeby causing incidental take. Please also note that the 1,000-meter buffer afforded unfledged chicks protects these birds not only h m direct injury or death, r but also h m increased predation during sand placement @age 83) and reduced prey availability caused by drifting suspended sediments (page 92). These protections are especially important given the repeated movement by two unfledged chicks of over 850 meters in as little as 24 hours, r documented in Momouth Beach during the 2002 nesting season.

REINITIATION OF CONSULTATION

The Service understands ihat the Corps will consider reinitiatingTormal, programmatic consultation for the project based upon the results of the above-mentioned studies. A revised Biological Assessment must be submitted with any future request for reinitiation of consultation, and must include the Corps assessment of impacts to federally listed species b m any proposed changes to the project or Corps conservation measures (i.e., change in bu&r distances or timing restrictions). For any Mure formal or informal consultation^, the Service requests that the Corps submit a complete, detailed, and specific project AescriPtion containing unambiguous,

- biologically appropriate conservation measures to avoid and minimize adverse effects to federally listed species. Submission of a clear and precise project description will expedite future issuance of Biological Opinions and avoid confusion.

As a reminder, under the teims of this programmatic Opinion, streamlined informal or f m a l consultation is required prior to the start of each future renourishment cycle. In addition, federal regulations at 50 CFR 402.16 require reinitiation of this programmatic consultation if significant new information comes to light or if the project is substantially rnodiiied. Speciflc reinitiation triggers are given at the end of this Opinion.

TERMS OF THIS OPINION

With respect to ESA compliance, a l l aspects of the Corps project description in this Opinion are binding, including the specific nature, timing, and extent of proposed beach nourishment activities, as well as all conservation measures included in the Corps project description.

Reasonable and Prudent Measures (RlWs) and the accompanying terms and conditions provided + , within this Opvuon are designed to minimize incidental take of piping plovers anticipated as a result of the proposed project; these measures, terms, and conditions are nondiscretionary. In order to be exempt fiom the prohibitions of Section 9 of the ESA, the Corps and its contractors must comply with all measures, terms and conditions in this Opinion.

Please note that the terms of this Opinion are binding for all current and future activities related to the project until such time as superceded by any future, revised, p r o ~ ~ n a t i c Opinion issued for Sections I or II of the BECP, or byproject-specific terms of streamlined informal or formal consultations, under the auspices of this programmatic Opinion, on individual renourishment events included as part of the subject project. Irnplefhentation of terms (i.e., before, during, and after construction) of these streamlined consultations for individual renourishment events will be required for ESA compliance.

The Corps did not agree to the terms of the draft Opinion until May 17, and renourishment activities began on May 20; therefore, preconstruction terms and conditions (i. e., a pre-construction meeting, distribution of required information to contractors, Service notification and monitoring procedures for work within an occupied reach) were not implemented in a MI and timely manner. Failure to comply with pre-construction terms and conditions resulted in poor communication among the Service, the Corps, and construction and monitoring contractors.

Poor communication ultimately led to motorized construction activities, including sand placement, occurring within 200 meters of unfledged piping plover chicks, in clear contradiction to the terms of this Opinion. '~onstruction in close proximity toplover chicks occurred because construction contractors erroneously continued measuring 1,00O=meter buffers from a nest site, rather than h m the actual chicks, which had moved 800-900 meters toward the construction site.

This Opinion also includes post-construction measures, terms, and conditions for the current renourishment cycle, such as developing municipal endangered species management plans, conducting prey studies, curtailing dune stabiliza&on and mechanical raking within nesting areas, and restoring seabeach amaranth in 2003. The Service reauests a meeting at your earliest convenience to discuss implementation of post-construction measures, terms, and conditions for the 2002 renourishment, as well as improved coordination for future renourishments. Improved coordination before and during future construction will elhimite confusion regarding monitoring protocols, buffer sizes, and-other conservation measures, terms;- and conditions, Ad will avoid additional occmences of inadvertent non-compliance with the terms of this Opinion.

CHANGES FROM THE DRAlV OPINION

General Changes I

As indicated in the Service's April 18,2002 correspondence, an RPM and implementing terms and conditions have been added to the Incidental Take Statement at the end of this Opinion. The RPM addresses continued Corps, Service, and State access to private property within the project area for endangered species management. The introductory paragraph under RPMs (page 104) has also been changed as per our April 18 letter.

The species status section has been updated to reflect current information, particularly for piping plovers. The consultation history section has been updated to include key communications between the Corps and the Service since the December 6,2001 issuance of the draft Opinion. In addition, minor changes have been made throughout the Opinion to reflect the changed construction schedule; most significantly, terms and conditions regarding the sequence of renourishment activities (page 105, #la) have been revised t i reflect the new schedule.

To ensure consistency with other Opinions recently issued by this office, the analysis of effects has been revised to include consideration of increased predation of piping plovers during sand placement and potential loss of seabeach amaranth genetic diversity. Both effects are considered minor given the species protections included in Corps conservation measures. A minor change was made to the Incidental Take Statement, and a conservation recommendation was added, to reflect the potential effects of increased predation. The analysis of effects was also changed to reflect the fact that the extent of areas actually receiving sand within a given construction reach may vary among renourishment cycles, and will not necessarily include the entire reach. Finally, two terms and conditions (page 105, #lb and page 106, #3d) have been added to address Service concerns that became apparent during the 2002 nesting season.

A

The numbers below conespond to the Corps March 29,2002 coiihents on the draft Opinion, aqi are consistent with the Service's April 18,2002 and the Corps May 17,2002 correspondences; please refer to these documents for context.

Comment 1 : The Service recognizes the dis&ction between the annual Endangered Species Management Program (ESMP) and construction monitoring during renourishment activities.

The Service understands that the Corps has c o d t t e d budget funds for construction monitoring during each renourishment cycle. (Based on this information, Comment 1 1 has not been incorporated in the final Opinion.) In contrast, while the Corps expects continuation of the ESMP, its future implementation will be subject to availability of funding. The Service has revised the codtation history section (page 3) as per our April 18,2002 letter, to reflect the 1995 agreement reached beitween the Corps and the Service to initiate the ESMP through a cooperative partnership.

The Service concurs that the ESMP provides substantial benefits to piping plovers and seabeach amaranth, as well as the State-listed (endangered) least tern (Sterna antillarum). The Service also concurs with the intent of May 17 Corps statements under Comment 30 that the E m is a model of cooperation among federal and State agencies to protected listed species. The Service commends the Corps for its continuing commitment to the ESMP, including substantial funding, in fhtherance of Corps responsibilities under Section 7(a)(l) of the ESA.

Comments 2, 13, 15, 18, 19, 23: These Corps comments have been incorporated in the h d Opinion.

Comments 3 and 6: In our April 18 letter, the Service concurred with the Corps March 29 request to change three breeding seasons to two in the definitions of "occupied reaches" and 'hesting areas." At the time, there were no known instances of plovers using a nesting area in the project area for two non-consecutive breeding seasons, with no breeding activity during the intervening year. With no evidence to the contrary, the Service concurred that a change b m three to two breeding seasons would not substantially affect our analysis of effects to piping plovers.

Subsequently, new information has been documented within the project area. At the National Guard Training Center in Sea Girt Borough, a plover was observed scraping in 2000, no plovq were observed in 2001, and nests were established in 2002. Based on this new information, the Service must apply the best available scientific information and withdraw its concurrence with the Corps-requested change. Given the new information, the Service now finds that a change from three to two breeding seasons would substantially change the Service's standard dewtion of a "nesting area" and "occupied reach"; therefbre, this change has not been incorporated into the final Opinion.

The Service also cannot concur with the May 17 Corps request (Comment 3) to change "occupied reach" to ''nesting area," and has not revised the final-Opinion to reflect this change.

This Opinion defines three types of areas, with varying levels ofSeasonal restrictions to protect plovers: (1) unoccupied construction reaches, with no seasonal work restrictions; (2) occupied construction reaches outside of nesting areas, with no seasonal work restrictions but careful monitoring if work occurs during the nestingseason; and (3) nesting areas, with seasonal work restrictions fbm March 15 to the fledging of the last chick, usually around August 15.

Comments 4,5,8 ,10,11,16,20,21,22,24,28, dnd 31: As per your May 17 letter, no changes have been incorporated in the final Opinion in response to these Corps comments. Regarding comment 22, the citation in question was provided in the draft Opinion, and a printed copy of the paper was supplied with the Service's April 18 letter. Regarding comment 3 1, the conservation recommendation regardingseabeach amaranth genetic research has been left in the final Opinion;

however, implementation of this and all conservation recommendations is at the Corps discretion.

Comments 7,9 ,12, and 14: Revisions to the Opinion regarding delineation of nesting areas (page 24) and plover use areas (page 26) reflect a more cooperative process. Although the Service reserves the final judgement, the parties will work together before and during !:

renourishment to accurately delineate and map these areas in accordance with the definitions contained in this Opinion.

Comment 17: The Service recognizes that initial nourishment created suitable habitat in some areas where none previously existed, and has no objection to the term "create." Although "create" was used in the draft Opinion, the ori@ focus was on the drawbacks of the created beach as piping plover and seabeach amaranth habitat (i.e., stabilized shoreline, recreational use conflicts). The Opinion has been revised to better recognize the benefits, as well as the drawbacks, of initial nourishment for listed species.

Comments 25 and 26: The Service recognizes that delegating the stop work authority to the field monitor(s) would be operationally impractical for the Corps. However, ,establishing clear procedures to halt or m o w work activities is necessary to ensure contractor compliance with the terms of this Opinion and to mhimke incidental take of piping plovers. Such procedures must include adequate communications and clear au-thority. The Service has revised the terms and conditions (page 106, #3c) to permit consistency with normal Corps operating procedures, while providing the Service adequate assurances that work can be promptly halted or modified as needed to protect plovers.

Comment 27: The terms and conditions regarding mechanical beach raking (page 108, #lo) have been revised as per our April 18,2002 letter. The Service does not concur with the May 17 Corps comment that July 1 is an extreme late date to allow mechanical raking if no plover breeding activity has been observed in a nesting area. Piping plovers eggs may be present on the beach h m mid-April to late July. Re-nests often occur on the same site, but movements beach nourishment. The Service will work cooperatively to assist the Corps and the municipalities in developing plans consistent with this Opinion and the Service's 1994 "Guidelines for Managing Recreational Activities in Piping Plo= Breeding Habitat on the U.S.

Atlantic Coast to Avoid Take under Section 9 of the Endangered Species Act" (Guidelines).

If cooperative efforts are insufllcient to prevent continued take of piping plovers by local management actions, and such take of piping plovers is not in accord with the tenns of this Opinion or the Service's Guidelines, then the take is not protected by Section 7(0)(2) of the ESA.

Responsible parties, including municipal st& and officials, can be held accountable for

- unauthorized take.

CONCLUSION

The Service acknowledges-the benefits of the project in maintaining suitable habitat for piping plovers and seabeach amaranth within the project area, and appreciates the Corps cooperation in avoiding adverse effects to these species fiom project implementation. If you have any questions or concerns regarding this consultation, please contact John C. Staples or Wendy Walsh of my staff at (609) 646-93 10, extensions 18 and 48, respectively.

Sincerely, UJJGC+-

Cliff d G. Day Supervisor

Enclosure

REFERENCES

U.S. Fish and Wildlife Service. 1996. Piping plover (Charadnus melodus), Atlantic Coast population, revised recovery plan. U.S. Department of the Interior, Fish and Wildlife Service, Hadley, Massachusetts. 245 pp. -.

and National Marine Fisheries Service. 199 8. Endangered species consultation handbook, provisions for conducting consultation and conference activities under section

- 7 of the Endangered Species Act. U.S. Department of the Interior, Fish and Wildlife Service, and U.S. Department of Commerce, National Marine Fisheries Service, Washington, D.C. 154 + appendices.