FKEC_BID_26-07_EXHIBIT_K_ACOE_DELISTING_JOHNSON'S_SEAGRASS.pdf

DEPARTMENT OF THE ARMY

JACKSONVILLE DISTRICT CORPS OF ENGINEERS

POST OFFICE BOX 4970

JACKSONVILLE, FLORIDA 32232-0019

CESAJ-RD (1200A)(800D) 02 June 2022

MEMORANDUM FOR RECORD

SUBJECT: The Delisting of Johnson's Seagrass from the Endangered Species Act and the Effects on the Jacksonville District Programmatic Biological Opinion (JAXBO)

1. Background: The National Oceanographic and Atmospheric Administration (NOAA) Fisheries listed Johnson's seagrass (Halophila johnsonii) as threatened under the Endangered Species Act in 1998 and designated critical habitat for Johnson’s seagrass on 5 April 2000. On 14 April 2022, NOAA published a final rule (87 FR 22137) to delist Johnson's seagrass because newly obtained genetic data demonstrate that Johnson's seagrass is not a unique taxon but rather a clone of an Indo-Pacific species, Halophila ovalis. Therefore, Johnson's seagrass does not qualify for listing under the Endangered Species Act. The delisting became effective on 16 May 2022. To correspond with this action, NOAA also removed the critical habitat designation for Johnson's seagrass.

2. Analysis: The National Marine Fisheries Service (NMFS) finalized the U.S. Army Corps of Engineers Jacksonville District Programmatic Biological Opinion (JAXBO) for 10 categories of minor in-water activities occurring in Florida and the U.S. Caribbean on 17 December 2017. The JAXBO included project design criteria (PDCs), which are the specific criteria, including the technical and engineering specifications, indicating how an individual project must be sited, constructed, or otherwise carried out to avoid or minimize adverse effects to ESA-listed species or designated critical habitat. The JAXBO included several PDCs to minimize adverse effects to Johnson’s seagrass and Johnson’s seagrass critical habitat. As a result of the delisting, the Johnson’s seagrass and Johnson’s seagrass critical habitat PDCs are no longer applicable. The attached document (Attachment A) includes all JAXBO PDCs. The PDCs included to minimize adverse effects to Johnson’s seagrass and its critical habitat are identified using strikethrough to clarify the specific PDCs that are no longer applicable and therefore, are no longer required for a project to meet the conditions of JAXBO.

All native seagrass, Johnson’s and other seagrass (previously referred to as non-listed seagrass in JAXBO), are important foraging resources for ESA-listed species including green sea turtles. Therefore, PDC A2.17 has not been stricken in its entirety. The last column of the table presented in PDC A2.17 will be applied to all projects that include docks and other minor structures, because that scenario presents the scenario where only impacts to non-listed seagrass was considered (i.e., doesn’t include design criteria included in the event Johnson’s may be in the project area).

3. Conclusion: Attachment A is provided to clearly document the PDCs that are no longer applicable due to the delisting of Johnson’s seagrass and its critical habitat.

CESAJ-RD (1200A)(800D)

SUBJECT: The Delisting of Johnson's Seagrass from the Endangered Species Act and the Effects on the Jacksonville District Programmatic Biological Opinion (JAXBO)

Attachment A is provided for clarity but does not remove the requirement to read and adhere to all other terms and conditions of JAXBO.

4. Point of contact. Krista Sabin, Program Manager, Regulatory Division, at Krista.D.Sabin@usace.army.mil

Krista Sabin Program Manager Regulatory Division, Jacksonville District

Encl

PDCs Specific to the Gulf Sturgeon Critical Habitat Migratory Restriction Zones

• This Opinion does not apply to the placement of living shoreline, oyster reef, and artificial reef materials (Activity 7, PDC A7.26) and temporary platform, fill, and cofferdams (Activity 10, PDC A10.11) in Gulf sturgeon critical habitat migratory restriction zones.

• This Opinion does not apply to new transmission and utility line installation in the Gulf sturgeon critical habitat migratory restriction zones between September and March, when sturgeon are likely to be present in these areas. Emergency repair/replacement of transmission and utility lines may occur in these areas during this time frame if the work is conducted without the use of heavy in-water equipment (e.g., dredging equipment) (Activity

8, PDC A8.10).

• This Opinion does not apply to the installation of metal piles and metal sheet piles by impact hammer in the areas identified as Gulf sturgeon critical habitat migratory restriction zones.

• The allowable pile and sheet pile driving activities vary depending on the width of the project action area, as described below.

• Areas that are 0-500 ft wide: In areas up to 500 ft wide, the allowable pile or sheet pile driving activities within the Gulf sturgeon critical habitat migratory restriction zones are:

1. Creating a pilot hole for any type of pile using an auger or drop punch

2. Trenching a shoreline with mechanical equipment to create a space to install any type of sheet pile and backfilling behind it

3. Installing any type of piles and sheet piles by jetting.

• Areas that are 501-1,400 ft wide: In areas over 500 ft wide, but less than 1,400 ft wide, the allowable pile or sheet pile driving activities within the Gulf sturgeon critical habitat migratory restriction zones are:

The activities described in 1-3 above, and

4. Installing any type of piles and sheet piles by vibratory hammer.

• Areas over 1,401 ft wide: In areas 1,401 ft wide or wider, the allowable pile or sheet pile driving activities within the Gulf sturgeon critical habitat migratory restriction zones are:

The activities described in 1-4 above, and

5. Installing wood, vinyl, and concrete piles and sheet piles by impact hammer.

Attachment A: JAXBO PDCs with Johnson's seagrass PDCs stricken.

General PDCs Applicable to All Projects:

AP.1. The applicant must agree to adhere to PDCs for In-Water Activities (provided below).

AP.2. All projects involving the installation of piles or sheet piles shall follow the PDCs for In- Water Noise from Pile and Sheet Pile Installation (Section 2.2). This Opinion does not cover projects that use seismic surveys, low frequency sonar, explosions, and seismic air guns.

AP.3. All projects proposed in or near areas with mangroves, seagrasses, corals, or hard bottom habitat must refer to PDCs for Mangroves, Seagrasses, Corals, and Hard Bottom for All Projects (provided below) to determine whether the project is covered under the Opinion and, if it is covered, to ensure it is sited, designated, and implemented following all of the PDCs in that section.

AP.4. For every project, the USACE must determine if the project is located within:

• Smalltooth sawfish critical habitat limited exclusion zones (Section 2.1.1.1)

• Gulf sturgeon critical habitat migratory restriction zones (Section 2.1.1.2)

• Atlantic sturgeon critical habitat exclusion zone (St. Marys River) (Section 2.1.1.3)

• North Atlantic right whale educational sign zones (Section 2.1.1.4)

• U.S. Caribbean sea turtle critical habitat restriction zones (Section 2.1.1.5)

• Bryde’s whale exclusion zone (Section 2.1.1.6) Where the activity is excluded from the Opinion within a particular zone, the application must be processed under a separate consultation. Where additional restrictions apply to activities within that zone, the USACE or other authorizing entity must ensure that the project meets the requirements for that zone.

AP.5. This Opinion only covers new construction (i.e., installation, repair, replacement) and does not apply to after-the-fact consultations or enforcement actions handled by the

USACE.

AP.6. All activities must be completed during daylight hours.

PDCs for In-Water Activities

For an activity to be covered under this Opinion, the USACE authorization must include the following conditions. Failure to comply with these conditions could result in enforcement action by the USACE and/or NMFS.

AP.7. Education and Observation: The permittee must ensure that all personnel associated with the project are instructed about the potential presence of species protected under the ESA and the Marine Mammal Protection Act (MMPA). All on-site project personnel are responsible for observing water-related activities for the presence of protected species.

All personnel shall be advised that there are civil and criminal penalties for harming, harassing, or killing ESA-listed species or marine mammals. To determine which species may be found in the project area, please review the relevant Protected Species List at:

http://sero.nmfs.noaa.gov/protected_resources/section_7/threatened_endangered/index.ht ml

AP.8. Reporting of interactions with protected species:

a) Any collision(s) with and/or injury to any sea turtle, sawfish, whale, or sturgeon occurring during the construction of a project, shall be reported immediately to NMFS’s Protected Resources Division (PRD) at (1-727-824-5312) or by email to takereport.nmfsser@noaa.gov and SAJ-RD-Enforcement@usace.army.mil. .

b) Smalltooth sawfish: Report sightings to 1-844-SAWFISH or email Sawfish@MyFWC.com

c) Sturgeon: Report dead sturgeon to 1-844-STURG 911 (1-844-788-7491) or email nmfs.ser.sturgeonnetwork@noaa.gov

d) Sea turtles and marine mammals: Report stranded, injured, or dead animals to 1-877-

WHALE HELP (1-877-942-5343).

e) North Atlantic right whale: Report injured, dead, or entangled right whales to the USCG via VHF Channel 16.

AP.9. Vessel Traffic and Construction Equipment: All vessel operators must watch for and avoid collision with species protected under the ESA and MMPA. Vessel operators must avoid potential interactions with protected species and operate in accordance with the following protective measures:

a) Construction Equipment:

i) All vessels associated with the construction project shall operate at “Idle Speed/No

Wake” at all times while operating in water depths where the draft of the vessel provides less than a 4-foot (ft) clearance from the bottom, and in all depths after a protected species has been observed in and has departed the area.

ii) All vessels will follow marked channels and/or routes using the maximum water depth whenever possible.

iii) Operation of any mechanical construction equipment, including vessels, shall cease immediately if a listed species is observed within a 50-ft radius of construction equipment and shall not resume until the species has departed the area of its own volition.

iv) If the detection of species is not possible during certain weather conditions (e.g., fog, rain, wind), then in-water operations will cease until weather conditions improve and detection is again feasible.

b) All Vessels:

i) Sea turtles: Maintain a minimum distance of 150 ft.

ii) North Atlantic right whale: Maintain a minimum 1,500-ft distance (500 yards).

iii) Vessels 65 ft in length or longer must comply with the Right Whale Ship Strike

Reduction Rule (50 CFR 224.105) which includes reducing speeds to 10 knots or less in Seasonal Management Areas (http://www.fisheries.noaa.gov/pr/shipstrike/).

iv) Mariners shall check various communication media for general information regarding avoiding ship strikes and specific information regarding right whale sightings in the area. These include NOAA weather radio, USCG NAVTEX broadcasts, and Notices to Mariners.

v) Marine mammals (i.e., dolphins, whales [other than North Atlantic right whales], and porpoises): Maintain a minimum distance of 300 ft.

vi) When these animals are sighted while the vessel is underway (e.g., bow-riding), attempt to remain parallel to the animal’s course. Avoid excessive speed or abrupt changes in direction until they have left the area.

vii) Reduce speed to 10 knots or less when mother/calf pairs or groups of marine mammals are observed, when safety permits.

AP.10. Turbidity Control Measures during Construction: Turbidity must be monitored and controlled. Prior to initiating any of the work covered under this Opinion, the Permittee shall install turbidity curtains as described below. In some instances, the use of turbidity curtains may be waived by the USACE project manager if the project is deemed too minimal to generate turbidity (e.g., certain ATON installation, scientific survey device placement, marine debris removal) or if the current is too strong for the curtains to stay in place. Turbidity curtains specifications:

a) Install floating turbidity barriers with weighted skirts that extend to within 1 ft of the bottom around all work areas that are in, or adjacent to, surface waters.

b) Use these turbidity barriers throughout construction to control erosion and siltation and ensure that turbidity levels within the project area do not exceed background conditions.

c) Position turbidity barriers in a way that does not block species’ entry to or exit from designated critical habitat.

d) Monitor and maintain turbidity barriers in place until the authorized work has been completed and the water quality in the project area has returned to background conditions.

e) In the range of ESA-listed corals (St. Lucie Inlet, Martin County south to the Dry Tortugas and the U.S. Caribbean) and Johnson’s seagrass (Turkey Creek/Palm Bay south to central Biscayne Bay in the lagoon systems on the east coast of Florida):

• Projects that include upland earth moving (e.g., grading to install a building or parking lot associated with a dock and seawall project), must install sediment control barriers to prevent any upland sediments from reaching estuarine or marine waters.

• The turbidity curtain requirement cannot be waived for any project that moves or removes sediment (e.g., dredging, auger to create a pile, trenching to install a cable

PDCs for Mangroves, Seagrasses, Corals and Hard Bottom for All Projects

Note: For projects authorized in reliance on this Opinion only, the PDCs below supercede any other guidance documents otherwise applicable to reduce or avoid impacts to mangroves, seagrasses, and corals. This includes the NMFS’s Construction Guidelines in Florida for Minor Piling-Supported Structures Constructed in or over Submerged Aquatic Vegetation, Marsh, or Mangrove Habitat dated August 2001, and NMFS’s Key for Construction Conditions for Docks or Other Minor Structures Constructed in or over Johnson’s Seagrass (Halophila johnsonii), dated October 2002. NMFS may still apply these guidance documents in other consultations, including consultations on Essential Fish Habitat under the Magnuson-Stevens Fishery Conservation and Management Act, as appropriate.

AP.12. Mangroves

• To qualify for coverage under this Opinion, all projects must be sited and designed to avoid or minimize impacts to mangroves.

• Mangrove removal must be conducted in a manner that avoids any unnecessary removal and is limited to the following instances:

o Removal to install up to a 4-ft-wide walkway for a dock.

o Removal to install up to an 8-ft-wide walkway for public docks, where the walkway is necessary to address compliance with the Americans with Disability Act (ADA).

o Removal to install culverts necessary to improve water quality or restore hydrology between 2 water bodies. Such mangrove removal is limited to a maximum of 20 linear feet (lin ft) of shoreline per culvert opening.

o Removal of mangroves above mean high water (MHW) provided that the tree does not have any prop roots that extend into the water below the MHWL.

line). If turbidity curtains are not feasible in an area based on site conditions such as water current, high wave action, or stormy conditions, the project must undergo individual Section 7 consultation and is not covered under this Programmatic Opinion.

AP.11.Entanglement: All turbidity curtains and other in-water equipment must be properly secured with materials that reduce the risk of entanglement of marine species (described below). Turbidity curtains likewise must be made of materials that reduce the risk of entanglement of marine species.

a) In-water lines (rope, chain, and cable, including the lines to secure turbidity curtains) must be stiff, taut, and non-looping. Examples of such lines are heavy metal chains or heavy cables that do not readily loop and tangle. Flexible in-water lines, such as nylon rope or any lines that could loop or tangle, must be enclosed in a plastic or rubber sleeve/tube to add rigidity and prevent the line from looping and tangling. In all instances, no excess line is allowed in the water.

b) Turbidity curtains and other in-water equipment must be placed in a manner that does not entrap species within the construction area or block access for them to navigate around the construction area.

• Mangrove Trimming. Mangrove trimming is regulated by FDEP, Puerto Rico Department of Natural and Environmental Resources, and U.S. Virgin Islands Department of Planning and Natural Resources. Consistent with those authorities, when used in this Opinion, mangrove trimming refers to the removal (using hand equipment such as chain saws and/or machetes) of lateral branches (i.e., no alteration of the trunk of the tree) in a manner that ensures survival of the tree. This Opinion does not limit or supersede any restrictions on mangrove removal required under any federal, state, or local law.

o This Opinion only covers projects with associated mangrove trimming occurring waterward of MHW if such trimming (1) occurs within the area where the authorized structures are placed or will be placed (e.g., removal of branches that overhang a dock),

(2) is necessary to provide temporary construction access, and (3) is conducted in a manner that avoids any unnecessary trimming.

o The Opinion does not apply to projects proposing to remove red mangrove props roots waterward of MHW, except for removal to install the dock walkways, as described above (up to a 4-ft walkway and up to a 8-ft ADA compliant walkway) and to install culverts necessary to improve water quality or restore hydrology between 2 water bodies.

AP.13. Seagrass:

• Pile-supported structures must follow the PDCs for Docks or Other Minor Structures (PDC

A2.17, Section 2.2.2)

Johnson’s seagrass:

• This Opinion does not apply to projects where Johnson’s seagrass is found within the project footprint except for:

o Installation of pile-supported structures that meet the PDCs for Docks or Other Minor

Structures (PDC A2.17, Section 2.2.2).

o Maintenance dredging of previously authorized areas. This is limited to the removal of no more than 0.1 acre (ac) (4,356 ft²) of Johnson’s seagrass per year (Activity 3; see Section 2.2.3) o Transmission/utility line repairs within the same footprint of the lines being repaired (Activity 8; see Section 2.2.8).

Non-listed seagrasses:

• All impacts to non-ESA listed native, non-invasive seagrasses should be avoided and minimized to the extent practicable.

• This Opinion does not apply to projects located within the geographic boundary of U.S.

Caribbean sea turtle critical habitat (hawksbill, leatherback, and the NA DPS of green sea turtle critical habitat identified in Section 2.1.1.5) if non-ESA listed, native, non-invasive seagrasses are found within the project footprint.

AP.14. Coral and Hard Bottom Habitat

• This Opinion does not apply to projects that may affect, directly or indirectly, ESA-listed corals.

• Projects occurring within in the Florida Keys National Marine Sanctuary (FKNMS) may require separate consultation or authorization from NOAA’s FKNMS. Projects authorized to occur in the FKNMS shall comply with any measures NOAA FKNMS has developed to avoid, minimize, and/or mitigate any effects on non-listed corals. For projects occurring outside of the FKNMS, if non-listed corals are found within the project footprint, we recommend relocating all non-listed corals, when possible, in a manner that is protective of the corals.

• This Opinion does not apply to projects where hard bottom habitat is found within the project footprint, except for the temporary placement (up to 24 months) of scientific survey devices (Activity 5) that have a footprint of less than 1 square foot (ft2) per device and are installed in a manner that does not permanently alter the hardbottom (e.g., the devices are not installed by drilling). For this Opinion, we define hard bottom in 2 ways:

o Natural consolidated hard substrate that is suitable to support corals, coral larval settlement, reattachment and recruitment of asexual coral fragments. These areas of hard bottom or dead coral skeleton must be free from fleshy or turf macroalgae cover and sediment cover.

o Nearshore and surf-zone, low-profile hard bottom outcroppings (e.g., worm-rock reef [sabellariid worm reefs] and eolianite, granodiorite). This habitat can be persistent or ephemeral, cycling through periods of exposure and cover by sand. The range of this hard bottom habitat extends along the southeastern coast of Florida from Cape Canaveral to Miami-Dade County and in the U.S. Caribbean. It is an important developmental habitat for juvenile hawksbill and green sea turtles, which use it for both foraging and refuge.

PDCs for In-Water Noise from Pile and Sheet Pile Installation

Open Water The letters A-E in the tables below specify the PDC category. Activities labeled A-D must follow the corresponding PDCs for labeled Category A-D below. Activities labeled E are excluded from this Opinion, as stated in Category E below.

Trench and fill Pilot hole (auger or drop punch) Jetting Vibratory Impact hammer Wood piles 14-inch (in) diameter or less when installed via impact hammer and 36-in or less for all other installation methods

A

B

Concrete pile 24-in diameter/width or less in open water A A A A B

Metal pipe pile 36-in diameter or less A A A A E

2 metal boatlift I-beams A A A A B Concrete slab wall- any size A A A A B Vinyl sheet pile- any size A A A A B Metal sheet pile- any size A A A A E

Confined Space In Florida, we consider the confined space to be any area that has a solid object (e.g., shorelines or seawalls) within 150 ft of the pile installation site and in the U.S. Caribbean we consider confined space to be any area that has a solid object within 260 ft of the pile installation site.

Trench and fill Pilot hole (auger or drop punch) Jetting Vibratory Impact hammer Wood pile 14-in diameter or less when installed via impact hammer and 36-in or less for all other installation methods

Concrete pile 24-in diameter/width or less (5 piles or less installed/day) A A A A C

Concrete pile 24-in diameter/width or less (6-10 piles installed/day) A A A A D

Metal pipe pile 36-in diameter or less A A A A E 2 metal boatlift I-beams A A A A B Vinyl sheet pile – any size A A A A B Concrete slab wall- any size (5 slabs or less installed/day) A A A A C

Concrete slab wall- any size (6-10 slabs installed/day) A A A A D

Metal sheet pile- any size A A A A E

A. The Projects identified as A above must comply with PDCs identified for all projects in this Opinion. Specific PDCs related to noise include:

1. All work must occur during daylight hours only (PDC AP.6).

2. All construction personnel are responsible for observing water-related activities to detect the presence of these species and avoid them (PDC AP.7).

B. The projects identified as B above must follow all of the conditions under A, above, AND also must limit the maximum number of piles installed per day to no more than 10 piles per day.

C. The projects identified as C above must follow all of the conditions under A, above, AND also must limit the maximum number of piles installed per day to no more than 5 piles per day.

D. The projects identified as D above must follow all of the conditions under A and B, above, AND also must abide by one of the noise abatement measures below, as chosen by the applicant:

1. Bubble curtain: The bubble curtain design must adhere to the guidelines for unconfined and confined bubble curtains described in Appendix B.

2. Temporary noise attenuation pile (TNAP) also known as a pile isolation casing: The

TNAP design must be constructed of a double-walled tubular casing (a casing within a larger casing), with at least a 5-in-wide area between the casings that is dewatered to create a hollow space or 5-in wide area between the casings completely filled with closed-cell foam or other noise dampening material between the walls. The TNAP must be long enough to be seated firmly on the sea bottom, fit over the pile being driven, and extend at least 3 ft above the surface of the water.

3. The use of any other alternative noise control method must receive prior approval by

NMFS and the USACE, as described in Section 2.3.

E. The projects identified as E are not covered under this Opinion.

PDCs specific to Activity 1 for Shoreline Stabilization:

A1.1. Activities covered by this Opinion include:

A1.1.1. New shoreline stabilization: New shoreline stabilization projects cannot exceed 500 ft in length. New seawalls and footers cannot extend any further waterward than 1.5 ft (18 in) from MHW, unless necessary to align a new seawall with 1 or more adjacent seawalls.

Repair or replacement of existing vertical seawalls: The repair, and replacement of seawalls and footers cannot extend any further waterward than 1.5 ft (18 in) from the wet face of the existing seawall or MHW, unless necessary to align with 1 or more adjacent seawalls. The repair or replacement of an existing seawall is not restricted to the 500 ft in length limit in PDC A1.1.1.

A1.1.2. Shoreline stabilization materials may consist of riprap, articulating blocks or mats, and sand cement, geotextile/ filter fabric and mattresses. Installation of new shoreline stabilization materials where none previously existed may not extend more than 10 ft waterward of MHW (including the toe of the riprap). Riprap repair, and replacement may occur at its previous location, upland of, or within 1.5 ft (18 in) waterward of its previous location.

A1.1.3. The Opinion does not cover removal of any length of seawall or other shoreline stabilization materials if such removal would result in an unstabilized shoreline.

A1.1.4. The Opinion covers installation, repair, replacement, and removal of seawall footers.

A1.1.5. This Opinion covers the removal/fill of upland cut boat ramps, slips, and basins to return the shoreline to the natural contour and/or to bring the shoreline into alignment with the adjacent property shorelines.

The following PDCs apply to all the activities described in PDC A1.1 above:

A1.2. Placement of backfill is limited to those situations where it is necessary to level the land behind seawalls or riprap. This includes backfill associated with installation of a seawall or riprap to remove/fill in an upland cut area (e.g., boat slip, boat ramp, boat basins) to return the shoreline to the original shape or to connect to adjacent seawalls to bring the shoreline into alignment with adjacent property shorelines.

A1.3. Shoreline stabilization materials must be placed by hand around red mangrove prop roots.

A1.4. Shoreline stabilization structures, other than vertical seawalls, shall be no steeper than a 2:1 Horizontal: Vertical slope for riprap, or the appropriate slope necessary to ensure shoreline stability while minimizing the total footprint when using materials other than riprap.

Additional PDCs for Activity 1 applicable in critical habitat:

In addition to the PDCs above, the project must be designed to meet the following PDCs if the project occurs in the critical habitat as described below.

A1.8. Smalltooth sawfish critical habitat: Installation of new shoreline stabilization materials in smalltooth sawfish critical habitat under this Opinion is limited to:

A1.8.1. Placement of new shoreline stabilization materials (i.e. riprap, articulated concrete mats) in water depths deeper than -3 ft MLLW. No stabilization materials can be placed in waters between the MHWL and -3 ft MLLW.

A1.8.2. Installation of new or repair/replacement seawalls within 1.5 ft waterward of the existing seawall or MHW.

A1.8.3. Repair and replacement of shoreline stabilization materials (i.e., riprap, articulated concrete mats) within the same footprint of existing materials in depths between the MHWL and -3 ft MLLW. This means that these materials cannot result in the waterward extension or lateral expansion of materials beyond the previous footprint. Shoreline stabilization materials can be expanded in water depths deeper than -3 ft MLLW, as defined in PDC A1.1.3.

A1.8.4. Removal/filling of man-made upland cut areas (e.g., upland cut boat basins or boat ramps) to return the shoreline to its original contour are allowed, even if it removes the shallow, euryhaline essential feature.

A1.8.5. To be covered under this Opinion, activities cannot occur in areas identified as smalltooth sawfish limited exclusion zones, as defined in Section 2.1.1.1.

A1.9. Gulf sturgeon critical habitat: All new shoreline stabilization materials (e.g., riprap, articulating concrete mats) can only be placed between the shoreline and where the water reaches a depth of -6 ft MHW. Additional noise restrictions are required for pile and sheet pile installation in the Gulf sturgeon critical habitat migratory restriction zones defined in Section 2.1.1.2.

A1.10. Acropora critical habitat: To be covered under this Opinion, new or repair/replacement of shoreline protection cannot occur in Acropora critical habitat if the essential feature is

A1.5. Installation and/or repairs to groins, jetties, or other structures placed perpendicular to shore, and beach nourishment/renourishment are not covered in this Opinion.

Breakwaters/living shorelines are covered as described in Activity 7.

A1.6. No placement of riprap below MHW is covered under this Opinion within the boundary of the FKNMS unless the FKNMS issues a NOAA permit or authorization that signifies the proposed activity is consistent with Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended. Proof of approval from the FKNMS is required as part of the project level review submission, described in Section 2.3, below.

A1.7. Shoreline protection shall not occur on ocean beaches used for sea turtle nesting.

present. Repair and replacement of shoreline protection within Acropora critical habitat is covered if it is within the existing footprint.

A1.11. Johnson’s seagrass critical habitat: To be covered under this Opinion, installation of shoreline stabilization material (e.g., riprap and scour control materials, not vertical seawalls and footers) cannot occur if essential features are present. Repair and replacement of these materials (riprap and scour) is covered within the existing footprint. Vertical seawalls and footers can be installed, repaired, and replaced in Johnson’s seagrass critical habitat even if the essential features are present, as long as the project is consistent with the applicable PDCs, including PDC A1.1.1 and A1.1.2 regarding overall length and waterward extension limit.

A1.12. U.S. Caribbean sea turtle critical habitat (hawksbill, leatherback, and the NA DPS of green sea turtle critical habitat): This Opinion does not apply to new structures in sea turtle critical habitat in the U.S. Caribbean. This Opinion does apply to repair and replacement of shoreline protection materials within U.S. Caribbean sea turtle critical habitat if the repair or replacement is within the existing footprint.

PDCs Specific to Activity 2 - Pile-Supported Structures and Anchored Buoys:

A2.1. Activities covered by this Opinion include the installation, repair, replacement, and removal of structures as described below:

A2.1.1. The pile-supported and anchored structures included in this Opinion are: docks and piers, boatlifts, mooring piles and dolphin piles associated with docks/piers; ATONs and PATONs; floating docks; pile-supported chickees (i.e., small, back-country, over-water, pile-supported, primitive camping shelters); boardwalks (as long as they are designed and clearly marked to prohibit fishing and vessel mooring); mooring fields and buoys; and other minor pile-supported structures. This does not include structures that support large commercial vessels including ferries, tankers, and cargo ships such as ferry terminals and large ports.

A2.1.2. Pile-supported docks/piers for a single-family residential lot are limited to 4 slips for motorized vessels. Slips for non-motorized vessels (e.g., kayak, canoe, and paddleboard) and associated launching areas do not count toward the total slip number.

A2.1.3. Pile-supported structures for marinas, multi-family facilities (e.g., condo complexes, trailer parks, subdivisions when the homeowners association owns and controls the in-water structures). Docks and piers for multi-family residential properties (e.g., condos, trailer parks, apartment complexes), and marinas are limited to a maximum of 50 total slips (i.e., combination of wet and dry slips for existing plus proposed slips).

A2.1.4. Anchored buoys and temporary pile-supported structures associated with marine events. Upon completion of the event, these structures must be removed and, to the maximum extent practical, the site must be restored to pre-construction elevations. Water depths in the area of marine events must be deep enough to support at least 5 ft of water depth under the keel of a vessel and between the keel of a vessel and ESA-listed coral colonies when transiting to the mooring areas. There is no limit on the number of vessel slips allowed for temporary structures associated marine events such as boat shows.

A2.1.5. Mooring fields are limited to a maximum of 50 motorized vessels (there is no limit on the number of non-motorized vessels).

A2.1.6. All pile-supported structures constructed must comply with PDC 2.17 for Docks or Other Minor Structures Constructed in Florida Under this Opinion (see below).

The following PDCs apply to all the activities described in PDC A2.1 above:

A2.2. For commercial, multi-family, or public facilities, and marine events, signs must be posted in a visible location(s), alerting users of listed species in the area susceptible to vessel strikes and hook-and-line captures. The most current version of the signs that must be downloaded and sign installation guidance are available at:

(http://sero.nmfs.noaa.gov/protected resources/section 7/protected species educational _signs/index.html). The signs required to be posted by area are stated below:

A2.2.1. All projects in Florida shall use the Save Sea Turtle, Sawfish, and Dolphin sign. These signs shall include contact information to the sea turtle and marine mammal stranding networks and smalltooth sawfish encounter database.

A2.2.2. Projects within the North Atlantic right whale educational sign zone (as defined in Section 2.1.1.4) shall post the Help Protect North Atlantic Right Whales sign.

A2.2.3. On the east coast of Florida, projects located within the St. John’s River and those occurring north of the St. Johns River to the Florida-Georgia line shall post the Report Sturgeon sign. On the west coast of Florida, projects occurring from the Cedar Key, Florida north to the Florida-Alabama line.

A2.2.4. We are still developing the signs to be used in the U.S. Caribbean. Once developed, those signs will be included at the website above.

A2.3. For commercial, multi-family, or public facilities, monofilament recycling bins must be provided at the docking facility to reduce the risk of turtle or sawfish entanglement in, or ingestion of, marine debris. Monofilament recycling bins must:

A2.3.1. Be constructed and labeled according to the instructions provided at http://mrrp.myfwc.com.

A2.3.2. Be maintained in working order and emptied frequently (according to http://mrrp.myfwc.com standards) so that they do not overflow.

A2.4. For any dock project (new construction, repair, or replacement) at a private residence located within 11 nautical miles of North Atlantic right whale critical habitat (as measured in a radius from the center of the nearest inlet to open ocean and described in Section 2.1.1.4), the property owner will be provided a handout with their USACE permit describing the presence of North Atlantic right whales in the area and the Federal regulations governing the approach to North Atlantic right whales (Appendix C).

A2.5. ATONs and PATONs must be approved by and installed in accordance with the requirements of the USCG (see 33 CFR, chapter I, subchapter C, part 66 and RHA Section 10 and any other pertinent requirements).

A2.6. Chickees must be less than 500 ft² and support no more than 2 slips.

A2.7. No activities associated with municipal or commercial fishing piers are covered under this Opinion.

A2.8. Docks installed within visible distance of ocean beaches are required to comply with turtle-friendly lighting, if lighting is necessary to the project. Turtle-friendly lighting is explained and examples are provided on the Florida Fish and Wildlife Conservation Commission website: http://myfwc.com/wildlifehabitats/managed/sea-turtles/lighting/

A2.9. Project construction will take place from uplands or from floating equipment (e.g., barge); prop or wheel-washing is prohibited.

Additional PDCs for Activity 2 applicable in critical habitat:

A2.10. Acropora critical habitat and the U.S. Caribbean: This Opinion does not cover new and expanded pile-supported structures in Acropora critical habitat where the essential features are present. The distance from ATONs to ESA-listed corals and Acropora critical habitat shall ensure there are no impacts to the corals or the essential feature of Acropora critical habitat from the movement of buoys and tackle. The appropriate distance shall be based on the size of the anchor chain or other tackle to be installed to secure the buoy to its anchor, particularly when the design of the ATON does not prohibit contact of tackle with the marine bottom. In all cases, buoy tackle will include flotation to ensure there is no contact between the anchor chain or line and the marine bottom.

A2.11. Gulf sturgeon critical habitat: Additional noise restrictions are required for pile and sheet pile installation in the Gulf sturgeon critical habitat migratory restriction zones defined in Section 2.1.1.2. The noise restrictions are described in that section.

A2.12. Smalltooth sawfish critical habitat: This Opinion does not cover activities occurring in areas identified as smalltooth sawfish limited exclusion zones defined in Section 2.1.1.1.

A2.13. North Atlantic right whale critical habitat: This Opinion does not cover installation of anchored ATONs and permanent buoys in North Atlantic right whale critical habitat;

temporary buoys for marine events are allowed in North Atlantic right whale critical habitat.

A2.14. Johnson’s seagrass critical habitat: This Opinion does not cover new marinas or multi family facilities in Johnson’s seagrass critical habitat. Repair, replacement, and reconfiguration of existing marinas or multi-family facilities may be covered if it (1) occurs within same overall footprint (out to the perimeter of the facility, including the outer limits of the structure and permitted mooring locations), (2) does not increase the total aerial extent (i.e., area of coverage from the dock structures) of the existing facility, and (3) does not affect Johnson’s seagrass. Mooring fields are allowed in Johnson’s seagrass critical habitat and within the range of Johnson’s seagrass so long as they occur in waters deeper than -13 ft ( 4 m).

A2.15. NWA DPS of loggerhead sea turtle critical habitat: ATONs (pile-supported and anchored buoys) are allowed in nearshore reproductive habitat of the NWA DPS of loggerhead sea turtles under this Opinion. No other pile-supported structures are allowed in nearshore reproductive habitat under this Opinion.

A2.16. U.S. Caribbean sea turtle critical habitat (hawksbill, leatherback, and the NA DPS of green sea turtle critical habitat): ATONs (pile-supported and anchored buoys) are allowed near sea turtle nesting beaches under this Opinion. No other pile-supported structures are allowed near sea turtle nesting beaches under this Opinion.

A2.17. PDCs for Docks or Other Minor Structures

These PDCs address the anticipated dock construction scenarios expected within Florida and the U.S. Caribbean and provide NMFS PRD's construction guidelines for projects occurring (1) within Johnson's seagrass critical habitat; (2) within the range of Johnson's seagrass18, but outside of Johnson's seagrass critical habitat; and (3) outside of both the range and critical habitat for Johnson's seagrass. These scenarios consider whether a seagrass survey was conducted for projects within the range of Johnson's seagrass or located in Johnson's seagrass critical habitat. Surveys must be completed no earlier than 1 year before submitting the application to the action agency for project authorization. There is no seasonal restriction for Johnson's seagrass surveys; however, Johnson's seagrass is found within the range of other seagrass species that exhibit a seasonal pattern of growth and distribution. For comparison, NMFS Habitat Conservation Division 's recommended sampling window for non-listed species is June 1 to September 30.

Dock Construction Scenarios Within

Johnson's seagrass critical habitat

Within the Range of Johnson's seagrass (outside of critical habitat)

In the U.S. Caribbe.an and Florida (outside of the range and critical habitat of Johnson's seagrass)

Dock replacement in the exact footprint (i.e., same location/configuration/ size) as the previous dock with...

No native seagrass under dock A A A

Johnson's seagrass under dock B B NIA

Native seagrass, other than Johnson's seagrass, under the dock

No current seagrass survey B B A New docks or dock expansions with...

No native seagrasses, within property limits

B A A

Johnson's seagrass, within property limits B B NIA

Native seagrass, other than Johnson's seagrass, within property limits

No current seagrass survey B B A

18The range of Johnson's seagrass is defined as Turkey Creek/Palm Bay south to central Biscayne Bay in the lagoon systems on the east coast of Florida

A= No additional PDCs B= Dock must meet PDCs below N/A = not applicable; Johnson’s seagrass could not occur under the dock because the dock project is outside the range of Johnson’s seagrass

Dock PDCs for Scenario B in the table above:

1. To avoid and minimize impacts to Johnson’s seagrass and native, non-listed seagrasses to the maximum extent practicable:

• The dock must be positioned to avoid and minimize effects to Johnson’s seagrass

• Over any area that contains Johnson’s seagrass or native, non-listed seagrasses, the dock shall be oriented in a north-south orientation to the maximum extent that is practicable to allow maximum sunlight under the structure.

• If practicable, terminal platforms shall be placed in deep water, waterward of Johnson’s seagrass beds or native, non listed seagrasses beds or in an area devoid of Johnson’s seagrass or native, non listed seagrasses.

• Piles must be spaced a minimum of 10 ft apart in any area that contains Johnson’s seagrass to minimize direct impacts.

• Piles shall be installed in a manner that will not result in the formation of sedimentary deposits (e.g., donuts or halos) around the newly installed pilings.

• No covered boat lifts are allowed over any Johnson’s seagrass.

2. Decking options: Deck surfaces (parallel with the water) that are located waterward of the MHWL must be constructed of grated materials or plank construction or a combination of the both methods (e.g. plank decking on the walkway and grated decking on the terminal platform). These decking options are described below:

Grated decking:

• Height requirement: The surface of the structure, including the dock walkway (the over-water narrow portion connecting the terminal platform to the shore and any over-water ramp required for access) and the dock, must be a minimum of 3 ft above MHW when constructed with grated decking.

• Size limitations: The dock walkway is limited to a width of 4 ft. The terminal platform is limited to a total area of 160 ft². Marginal docks are limited to a width of 5 ft. The 5 ft width restriction is measured from wet side of the seawall. For example, if a seawall cap is 3 feet overwater then the dock would be limited to 2 feet.

• Material description: Decking materials shaped in the form of grids, grates, lattices, etc., to allow the passage of light through the open spaces. These materials must provide a minimum of 43% open space.

Plank decking:

• Height requirement: The surface of the structure, including the dock walkway (the over-water narrow portion connecting the terminal platform to the shore and any over water ramp required for access) and the dock, must be a minimum of 5 ft above MHW when constructed of plank decking.

• Size limitations: The dock walkway is limited to a width of 4 ft. The terminal platform is limited to a total area of 120 ft². Marginal docks are limited to a width of 5 ft.

• Material description: Deck boards may be constructed of any material. Deck boards must be installed to provide a minimum of a 0.5-in gap between individual deck boards

PDCs specific to Activity 3 (maintenance, minor, and muck dredging):

A3.1. Activities covered by this Opinion include:

A3.1.1. Maintenance dredging of existing areas such as canals, channels, basins, berths, marinas, boat slips, and areas around intake and discharge structures.

Maintenance dredging will be limited to the depth and width previously authorized by the USACE or other regulatory authority such as FDEP or water management districts. There is no size limit for maintenance dredging so long as it meets the previously authorized depth and width. If the previous authorized depth is unknown, dredging is limited to -7.0 ft MLW including any advanced maintenance or overdredge.

A3.1.2. Minor dredging (non-maintenance) dredging as follows:

A3.1.2.1.For dredging to accommodate vessel mooring at boat slips around docks and marinas, the size is limited to the minimum necessary to accommodate vessel mooring, not to exceed 5,000 ft². The maximum allowed dredging depth (including overdredge) cannot exceed the depth of the adjacent navigational channel (i.e., controlling depth) or a maximum depth of -7 ft MLW. For projects located adjacent to federal channels (not within the dredged navigational channel), the dredging depth can exceed -7 ft MLW so long as it does not exceed the controlling depth of the federal channel.

A3.1.2.2.For treasure hunting and salvage operations that use blowers, propeller deflectors, and suctioning devices, the size is limited to a total of 5,000 ft² and is limited to sandy areas only.

A3.1.2.3.Minor dredging does not include dredging to create new navigational channels.

A3.1.2.4.Minor dredging includes dredging to accommodate the placement of shoreline stabilization, outfall structures; boat ramps; upland cut boat ramps and basins; temporary platforms, fill, and cofferdams; and placement of erosion and scour control-measures. This type of dredging is usually required to embed materials and/or to allow smooth transition of the work to the natural surrounding elevation.

A3.1.3. Muck Dredging, or removing accumulated organic to restore natural habitats and for water quality enhancement, as follows:

A3.1.3.1.Muck dredging cannot be used to increase water depths to support navigation, access, or vessel mooring.

A3.1.3.2.Dredging depths are limited to only that necessary to remove the muck layer down to natural sediments.

The following PDCs apply to all the activities described in PDC A3.1 above:

A3.2. This Opinion does not cover hopper dredging.

A3.3. With respect to the dredged material, all dredged material must be placed in an USACE-verified upland disposal site, EPA or USACE-designated open water disposal site, USACE Dredged Material Management Area, or USACE-approved beneficial use sites for mitigation or restoration, as long as it meets PDC A3.3.1-A3.3.3 below.

A3.3.1. The disposal sites shall employ erosion control measures such as upland erosion control, such as filtration or berms, or in-water turbidity curtains.

A3.3.2. Handling and storage of dredged material must be completed in a manner that prevents sedimentation, erosion, and turbidity during dewatering, overflow, transferring, and storage of the dredged material. For example, the overwater transfer of dredge material should either contain the dredged material and any water to prevent sedimentation or employ other methods, such as turbidity curtains in the marine environment, to ensure that any turbidity generated as the water is returned to the marine environment is contained. If the applicant conducts sediment testing voluntarily or in

Additional PDCs for Activity 3 applicable in critical habitat:

A3.5. Smalltooth sawfish critical habitat:

A3.5.1. Maintenance dredging of canals in smalltooth sawfish critical habitat is covered under this Opinion as long as it is within the previously authorized dredge footprint and to the previously USACE authorized depth.

A3.5.2. For minor dredging: If only the shallow euryhaline (MHWL to -3 ft MLLW) water essential feature is present (i.e., no red mangroves), dredged depths are limited to a maximum depth of -3 ft MLLW. If red mangroves are present, dredging, excavation, or disposal is not allowed within 5 ft of all red mangrove prop roots.

A3.5.3. Muck dredging, as defined in PDC A3.1.3, is not allowed in shallow, euryhaline habitat (MHWL to -3 ft MLLW)

A3.5.4. Dredging and disposal activities are not allowed in areas identified as smalltooth sawfish limited exclusion zones, defined in Section 2.1.1.1.

A3.6. Gulf sturgeon critical habitat: No treasure hunting or muck dredging is allowed in Gulf sturgeon critical habitat at any time of year. No maintenance or minor dredging is allowed in Gulf sturgeon critical habitat between September and March, when sturgeon are likely to be present in these areas. When allowed, maintenance and minor dredging activities shall be conducted according to the PDCs above for all dredging activities.

compliance with other law, and such testing indicates high levels of contaminants in the sediments to be dredged, water from…