C8392_NMFS_Biological_Opinion.pdf

C8392 NMFS Biological Opinion.txt[2/1/2018 3:03:53 PM]

From: Kean, Wayne E CIV Sent: Monday, November 27, 2017 11:51 AM To: Ward, Douglas G CIV Cc: Carpenter, Gregory O CIV; Vrankar, Barbara CIV; Cheryl Matasovsky; Sharon Yates; Danielle Somma (dsomma@appledoremarine.com); Matthew Teeden (MTeeden@appledoremarine.com) Subject: FW: [Non-DoD Source] Biological Opinion for the Delaware River Deepening and Maintenance Dredging Project Attachments: DEdeepening_maintenance_BiologicalOpinion_Signed_11172017.pdf

Doug, Attached is the biological opinion regarding our interdependent/interrelated Marcus Hook Range Lights to the USACE Delaware River Deepening and Maintenance Dredging Project. NOAA/NMFS concurred that our proposed activity “may affect, but is not likely to adversely affect” species and critical habitat protected under the ESA.

I have completed my review of the attached document and will now some background, our determinations for various effects, agreements that we made for time of year restrictions and best management practices (BMPs) that must be followed; and discuss the Incidental Take Statement (ITS) and Reasonable and Prudent Measures (RPMs), and Terms and Conditions (TCs) outlined in the attached for all projects activities. These will be documented in our NEPA Record of Environmental Considerations (REC).

(background) The USCG requested from NOAA/NMFS, a list of any threatened and endangered species in the project area and received a response identifying the Acipenser oxyrinchus oxyrinchus (Atlantic Sturgeon) and Acipenser brevirostrum (Shortnose Sturgeon) as listed species under the Endangered Species Act (ESA) of 1973. NOAA requested that the USCG, as the lead federal agency for the project, determine whether the proposed action may affect the above-listed species and Essential Fish Habitat (EFH) present within the area. The USCG completed Section 7 consultation making a determination that the proposed activity “may affect, but is not likely to adversely affect” species and critical habitat protected under the ESA.

(determinations) For critical habitat, we considered the effects of the proposed action on critical habitat and concluded that the proposed action is not likely to result in the destruction or adverse modification of critical habitat. Considering habitat modification, we determined that because of the small area where the project will occur, the effects of shading and excavation will be too small to be meaningfully measured or detected and are, therefore, insignificant. For pile driving noise, we determined that given the small distance a sturgeon would need to move to avoid the disturbance levels of noise, any effects will not be able to be meaningfully measured or detected.

Therefore, the effects of noise on sturgeon are insignificant. For additional vessel traffic associated with our work vessel, we determined that any slight increase in risk from altered patterns of use would be too small to be detected or measured, and effects are, therefore, insignificant.

(agreements and BMPs) For entrapment from excavation activities, the USCG agreed to abide by a time of year restriction from March 16 – July 31, i.e. no in-water work allowed during this period. Timing restrictions will avoid impacts to the species recovery within the critical habitat. Thus, the effects of entrapment from excavation activity on the Atlantic Sturgeon and Shortnose Sturgeon will be discountable. For sediment plume, turbidity will quickly return to preexisting conditions immediately after the work activity. In addition, the steel sockets and debris boom/turbidity curtain will prevent sturgeon from entering the area; therefore, any increase in sediment plume will have a discountable effect to the Atlantic Sturgeon and Shortnose Sturgeon. We will require the contractor to drill slowly with low impact for the first ten minutes of drilling (i.e., soft start), to provide sturgeon an opportunity to leave the area before drilling reaches maximum capacity. The USCG will require the contractor to follow Best Management Practices for erosion and sediment control during construction. A debris boom/turbidity curtain will be installed by a small boat around each new range light location, as well as the existing range light location to ensure that debris does not leave the construction site. The debris boom/turbidity curtain will encompass an approximate area of 2500 square feet at each barge setup location.

(ITS, RPMs and TCs) Section 9 of the ESA prohibits the take of endangered species of fish and wildlife. “Take” is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct. Harm is further defined by NMFS to include any act which actually kills or injures fish or wildlife. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to, and not the purpose of the agency action is not considered to be prohibited under the ESA provided that such taking is in compliance with the terms and conditions of this ITS. NOAA issued an ITS in their letter with the measures described below being non-discretionary, and must be undertaken by the USCG so that they become binding conditions for the exemption in section 7(o)(2) to apply. The lethal “take” primarily applies to activities that are not associated with USCG actions (entrainment in hopper or cutterhead dredges, entrapment in mechanical dredges, relocation trawling, and blasting activities) yet “take” occurring during USCG actions must be reported. The USCG, and our contractor, must follow the reasonable and prudent measures (RPMs), terms and conditions (TCs) outlined in the NOAA letter during project activities, as applicable, under Table 19, RPMs Related to All Project Activities.

It's a long email with a lot of information but I felt it necessary to highlight sections of the attached that are most applicable to our proposed activities. I hope to route the NEPA REC in the next few weeks. Let me know if you have any questions.

v/r

Wayne

-----Original Message----- From: Zachary Jylkka - NOAA Federal [mailto:zachary.jylkka@noaa.gov] Sent: Friday, November 17, 2017 3:52 PM To: Pasquale, Jerry J NAP; Brandreth, Mary E NAP Cc: Kean, Wayne E CIV; Karen Greene - NOAA Federal; Mark Murray-Brown - NOAA

Federal; Peter Johnsen - NOAA Federal Subject: [Non-DoD Source] Biological Opinion for the Delaware River Deepening and Maintenance Dredging Project

Dear Jerry and Beth, Attached, please find our signed Biological Opinion for the Delaware River Deepening of the Philadelphia to the Sea Federal Navigation Project, Maintenance Dredging of the Federal Navigation Channel (Trenton to the Sea), Dredged Material Utilization (DMU) Studies, and the interrelated/interdependent replacement of the Marcus Hook Range Lights.

Please carefully review the Opinion's Incidental Take Statement (ITS), including the reasonable and prudent measures (RPMs) and associated terms and conditions (TCs) necessary to minimize and monitor the take of shortnose and Atlantic sturgeon and sea turtles. We will be happy to address any questions or concerns you may have.

Thank you both for your cooperation and assistance throughout this consultation process. Please pass along a thank you to the various members of your team who helped assemble the data necessary to complete this consultation.

Have a great weekend, Zach

Zach Jylkka Fisheries Biologist Protected Resources Division Greater Atlantic Regional Fisheries Office NOAA Fisheries Gloucester, MA 01930 zachary.jylkka@noaa.gov office: (978) 282-8467 http://www.greateratlantic.fisheries.noaa.gov/protected/ <https://urldefense.proofpoint.com/v2/url?u=http- 3A__www.greateratlantic.fisheries.noaa.gov_protected_&d=DwMFaQ&c=0NKfg44GVknAU -XkWXjNxQ&r=zOmo2ifNV-uxnpYnCu2GPo4_IkzB3H3Dno8OXGO-3aQ&m=x97XjUn9qaPIXttEAz- 3fCAJlobg4TW-3irqPGhhH4w&s=nhPOpohn5kq-p0NikNT7AuGjv57usCgAKPx6Er20iOE&e=>