07 - Attachment N - USACE Shrewsbury River Dredge ESA Concurrence.pdf

UNITED STATES DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

NATIONAL MARINE FISHERIES SERVICE

GREATER ATLANTIC REGIONAL FISHERIES OFFICE

55 Great Republic Drive Gloucester, MA 01930

April 27, 2023

Michael J. Oseback Department of the Army U.S. Army Corps of Engineers, New York District Jacob K. Javits Federal Building 26 Federal Plaza New York, New York 10278-0090

Re: Maintenance Dredging of Shrewsbury River, New Jersey

Dear Mr. Oseback:

We have completed our consultation under section 7 of the Endangered Species Act (ESA) in response to your emails received on March 24, 2023, and April 18, 2023, regarding the above-referenced proposed project. We reviewed your consultation request document and related materials. Based on our knowledge, expertise, and your materials, we concur with your conclusion that the proposed action is not likely to adversely affect any National Marine Fisheries Service ESA-listed species or designated critical habitat. Therefore, no further consultation pursuant to section 7 of the ESA is required.

We would like to offer the following clarifications to complement your incoming request for consultation. Please submit any dredging reports to our new email address:

nmfs.gar.incidental-take@noaa.gov. In your Action Area section, you say that the placement of material at Monmouth Beach will not be considered further, because a September 2002 biological opinion had been issued which covers the effects of disposing material at the Monmouth Beach placement site. This consultation was done by the U.S. Fish and Wildlife Service, so it did not analyze the effects on the ESA-listed species under our jurisdiction.

Therefore, we appreciate and concur with your analysis of effects of dredged material placement at Monmouth Beach, which is included later on in the Effects Determination section of your letter. Because of the small draghead distance from the bottom (approximately 1-2 inches) and the short length of time (approximately 1-2 seconds) the hopper dredge pump priming will occur, we agree with your determination that the effects of dredging impingement/entrapment/capture on Atlantic sturgeon and sea turtles are extremely unlikely and are discountable.

On July 5, 2022, the U.S. District Court for the Northern District of California issued an order vacating the 2019 regulations that were revised or added to 50 CFR part 402 in 2019 (“2019 Regulations,” see 84 FR 44976, August 27, 2019) without making a finding on the merits. On September 21, 2022, the U.S. Court of Appeals for the Ninth Circuit granted a temporary stay of the district court’s July 5 order. On November 14, 2022, the Northern District of California issued an order granting the government’s request for voluntary remand without vacating the 2019 regulations. The District Court issued a slightly amended order two days later on November 16, 2022. As a result, the 2019 regulations remain in effect, and we are applying the http://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&ved=&url=http%3A%2F%2Fwww.tekspf.com%2F2018%2F06%2F13%2F&psig=AOvVaw3g8rF16ziEL2y9x6pI4Rwg&ust=1567002478006466

2019 regulations here. For purposes of this consultation and in an abundance of caution, we considered whether the substantive analysis and conclusions articulated in the letter of concurrence would be any different under the pre-2019 regulations. We have determined that our analysis and conclusions would not be any different.

Reinitiation of consultation is required and shall be requested by the lead federal agency or by us, where discretionary federal involvement or control over the action has been retained or is authorized by law and: (a) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered in the consultation; (b) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in this consultation; or, (c) If a new species is listed or critical habitat designated that may be affected by the identified action.

No take is anticipated or exempted. If there is any incidental take of a listed species, reinitiation would be required. Should you have any questions about this correspondence please contact Edith Carson-Supino at (978) 282-8490 or by email (Edith.Carson-Supino@noaa.gov). For questions related to Essential Fish Habitat, please contact Jessie Murray with our Habitat and Ecosystems Services Division at (732) 872-3116 or Jessie.Murray@noaa.gov.

Sincerely, Jennifer Anderson Assistant Regional Administrator for Protected Resources ec: Murray, NMFS/HESD; Mistry, USACE; Ferguson, USACE; Peterson, USACE; Provancha, USACE

ECO: GARFO-2023-00506

File Code: H:\Section 7 Team\Section 7\Non-Fisheries\ACOE\Informal\2023\New York District\USACE Shrewsbury River Dredge SBOBA