Biological Opinion on the Sandy Hook Channel.pdf

BIOLOGICAL OPINION ON THE EFFECTS OF

RECURRENT MAINTENANCE DREDGING OF THE SANDY HOOK CHANNEL,

MONMOUTH COUNTY, NEW JERSEY ON FOUR FEDERALLY LISTED SPECIES

Prepared for:

U.S. Army Corps of Engineers

New York District New York, New York

Prepared by:

U.S. Fish and Wildlife Service New Jersey Field Office Galloway, New Jersey

Preparer:

Wendy L. Walsh

Assistant Project Leader:

Ron Popowski

Project Leader:

Eric Schrading

October 2017

Photo credit: J. Heuser, NPS Photo credit: New York District

03/04/2012

TABLE OF CONTENTS

TABLE OF CONTENTS

LIST OF FIGURES

LIST OF TABLES

INTRODUCTION

CONSULTATION HISTORY

BIOLOGICAL OPINION

DESCRIPTION OF THE PROPOSED ACTION

Sandy Hook Channel - Background Increased Sand Transport and Dredging Description of Covered Federal Actions 2015 Corps Dredging 2017 Corps Dredging Future Corps Dredging Actions Future Corps Dredging Authorizations Conservation Measures

1. Tier 2 Consultation and Agency Coordination

2. Dredge Equipment Siting

3. Seasonal Restriction to Protect Piping Plovers

4. Measures to Minimize Disturbance from Bathymetric and Topographic Surveys

5. Security and Other Onshore Personnel

6. Species Monitoring

7. Seabeach Amaranth Surveys and Fencing to Avoid Direct Plant Impacts

8. Contingency Plans to Minimize Species Impacts

9. Scarping Abatement Plan to Minimize Indirect Habitat Impacts

10. Habitat Offset Plan to Compensate for Unavoidable Habitat Impacts

11. Land Form Monitoring

12. Regional Sediment Management

ACTION AREA

PIPING PLOVER STATUS

Across the New York-New Jersey Recovery Unit Within the Action Area

RED KNOT STATUS

Rangewide Within the Action Area

NORTHEASTERN BEACH TIGER BEETLE STATUS

Rangewide Within the Action Area

SEABEACH AMARANTH STATUS

Rangewide Within the Action Area

ENVIRONMENTAL BASELINE

EFFECTS OF THE ACTION

Direct Effects to Species Indirect Effects via Habitat Modification Effects Tables

Piping Plover Effects Table Red Knot Effects Table Northeastern Beach Tiger Beetle Effects Table Seabeach Amaranth Effects Table

CUMULATIVE EFFECTS

JEOPARDY ANALYSIS

Effects to Individuals Effects to Populations Effects to Species Conclusion

INCIDENTAL TAKE STATEMENT

DEFINITION OF INCIDENTAL TAKE

EXTENT OF ANTICIPATED TAKE

EFFECT OF THE TAKE

REASONABLE AND PRUDENT MEASURES

TERMS AND CONDITIONS

COORDINATION OF INCIDENTAL TAKE STATEMENT WITH OTHER LAWS,

REGULATIONS, AND POLICIES

CONSERVATION RECOMMENDATIONS

REINITIATION – CLOSING STATEMENT

REFERENCES CITED

LITERATURE CITED

PERSONAL COMMUNICATIONS

APPENDIX A. RED KNOT MONITORING PLAN

APPENDIX B. NORTHEASTERN BEACH TIGER BEETLE MONITORING PLAN

APPENDIX C. SPECIES CONTINGENCY PLAN

APPENDIX D. SCARPING ABATEMENT PLAN

APPENDIX E. OFFSET PLAN

APPENDIX F. PHOTOS

LIST OF FIGURES

Figure 1. Map showing accretion of a sand spit into Sandy Hook Channel, 1995 to 2015

Figure 2. National Park Service Management Zones on Sandy Hook (NPS 2014)

Figure 3. Limits of dredging, 2015 (Corps 2017b)

Figure 4. Corps condition survey, June 2017 (Wrocenski pers. comm. 2017)

Figure 5. Approximate red knot monitoring areas

Figure 6. Typical profile of Sandy Hook Channel

LIST OF TABLES

Table 1. Past and projected Corps dredging actions, 1977 to 2020 Table 2. Numbers of nesting piping plover pairs and productivity, 2012 to 2016

Table 3. Ebird records of red knots in North Beach as of October 2017 Table 4. Summary of the status of the northeastern beach tiger beetle throughout its range

Table 5. Available rangewide seabeach amaranth survey data Table 6. Seabeach amaranth numbers in North Beach, Sandy Hook, and New Jersey

Table 7. Piping plover effects table Table 8. Red knot effects table

Table 9. Northeastern beach tiger beetle effects table Table 10. Seabeach amaranth effects table

Table 11. Offset project ranking criteria

INTRODUCTION

This document represents the U.S. Fish and Wildlife Service’s (Service) Biological Opinion in accordance with Section 7 of the Endangered Species Act of 1973, as amended (87 Stat. 884, as amended; 16 U.S.C. 1531 et seq.) (ESA), on the effects of recurrent maintenance dredging of the Sandy Hook Federal Navigation Channel (Sandy Hook Channel, or channel), Monmouth County, New Jersey, to be carried out or authorized by the U.S. Army Corps of Engineers, New York District (Corps) over the next 20 years. This Programmatic Biological Opinion (PBO) also concludes after-the-fact formal consultation on a 2015 Corps dredging action for which emergency consultation was conducted. The dredging actions covered by this PBO are limited to those in the vicinity of the Sandy Hook peninsula (Sandy Hook), which is managed by the National Park Service (NPS) as the Sandy Hook Unit of Gateway National Recreation Area. The tip of Sandy Hook, which currently intersects the channel, supports four federally listed (threatened) species: piping plover (Charadrius melodus), red knot (Calidris canutus rufa), northeastern beach tiger beetle (Cicindela dorsalis dorsalis), and seabeach amaranth (Amarantus pumilus). There is currently no critical habitat designated in New Jersey for any of these species.

Programmatic consultation involves a two-tiered approach. Tier 1 consists of the programmatic consultation on the overall agency program1 while Tier 2 involves streamlined consultations on individual actions carried out under a program. Individual Corps actions (including authorizations) must continue to undergo individual (Tier 2) consultation to ensure consistency with the Project Description as given in this PBO (including all Conservation Measures), as well as consistency with the Reasonable and Prudent Measures (RPMs) and Terms and Conditions (TCs). Site-specific information for individual dredging actions will also be evaluated by the Service to ensure continued consistency with the conclusions in this PBO regarding effects to listed species. Proposed actions conforming with all provisions of this PBO will receive expedited review by the Service. Individual actions that cannot be designed or carried out to conform to the provisions of this PBO will require separate, individual consultations.

CONSULTATION HISTORY

April 21, 2008 Via letter, the Service concluded informal consultation for maintenance dredging of the channel, which was separated from habitats on Sandy Hook by approximately 500 feet of open water at that time. Work in the section of the channel closest to Sandy Hook, called Reach B, was to be seasonally restricted from March 15 to August 15. The Service updated the consultation in 2009 for additional dredging in Reach B, and noted that future dredging efforts would require further consultation.

June 27, 2011 The Corps issued a Public Notice for proposed maintenance dredging of the Sandy Hook Channel.

1 Consistent with final regulations published May 11, 2015 (Federal Register Vol. 80, No. 90, p. 26845), this PBO evaluates a “mixed programmatic action.” As such, the Incidental Take Statement included with this PBO is only for those program actions that are reasonably certain to cause take and are not subject to further Section 7 consultation (i.e., the Statement covers the 2015 and 2017 dredging actions only). Additional incidental take resulting from actions subsequently carried out or authorized by the Corps will be assessed in the Tier 2 consultation process.

March 7, 2012 Via letter, the Corps notified the Service that work began in November 2011 but was suspended due to equipment damage. Completion of work was scheduled for March 4 through March 31, 2012.

March 19, 2012 The Corps, the NPS, the New Jersey Division of Fish and Wildlife, and the Service met to discuss the ongoing dredging, which involved removal of material above the Mean Lower Low Water (MLLW) line. The Corps agreed to perform piping plover monitoring until the March 31, 2012 dredging end date. The Corps also agreed to provide security fencing around an approximately 6-foot-high, 200-foot-long scarp near the channel. The Service advised the Corps that re-consultation would be needed for future dredging actions, focused on preclusion of habitat use and formation.

March 30, 2012 The Corps notified the Service that the scarping had been eliminated by natural forces as of March 29, 2012.

September 27, 2012 The Corps, the NPS, and the Service met to discuss next steps.

May 3, 2013 The Corps issued a Public Notice for proposed maintenance dredging of the Sandy Hook Channel.

May 20, 2013 Via letter, the Corps initiated consultation for the 2013 dredging.

June 7, 2013 Via conference call, the Corps, the NPS, and the Service discussed the

2013 dredging, which was scheduled for fall and expected to involve removal of material above the MLLW line. During the course of this and subsequent discussions, the Corps agreed to provide transfer funding to the NPS. In the end, $62,000 was provided to NPS for law enforcement and species monitoring. Projects were also discussed to improve piping plover habitat (e.g., by controlling invasive vegetation) and to use some of the dredged material for a beneficial NPS project (e.g., beach nourishment near a historic structure); however, no such actions were carried out.

February 20, 2014 Via letter, the Service advised the Corps to prepare a Biological

Assessment for future dredging activity.

March 18, 2014 The Corps, the NPS, and the Service met to discuss next steps.

May 12, 2014 Via letter, the Corps summarized recent discussions regarding next steps.

May 30, 2014 Via email, the Corps provided a white paper explaining why neither relocation nor abandonment of the channel were viable alternatives to continued dredging.

March 13, 2015 The Corps issued a Public Notice for proposed maintenance dredging of the Sandy Hook Channel.

July 24, 2015 Via email, the Corps provided survey maps showing the 2015 dredging action would involve removal of material above the MLLW line. The NPS indicated they did not wish to pursue a beneficial use project for material dredged during 2015.

August 20, 2015 The Corps and the Service held a call to discuss consultation for the 2015 dredging.

September 11, 2015 Via letter, the Corps initiated informal consultation for the 2015 dredging.

September 23, 2015 Via letter, the Corps initiated emergency consultation for the 2015 dredging.

September 25, 2015 Via letter, the Service provided recommendations regarding the 2015 emergency dredging, and advised formal, programmatic consultation for future dredge cycles to include dredging by both the Corps and the U.S.

Navy (Navy).

February 2, 2016 Via conference call with the Service, the Corps agreed to prepare a formal consultation initiation package.

April 18, 2016 The Service learned that the Navy was dredging the channel near Sandy

Hook under a under a permit issued by the Corps’ Regulatory Branch. No intertidal beach was removed, but the dredge was in close proximity to the beach during the piping plover nesting season. The Service coordinated with the Navy and the NPS, who jointly monitored the birds during the event, which continued through May 24, 2016.

October 6, 2016 Via letter, the Service reiterated our advice for the Corps to submit an initiation package for programmatic formal consultation.

December 22, 2016 Via email, the Corps transmitted a preliminary Biological Assessment.

The Service provided comments via email on January 27, 2017.

February 14, 2017 The Corps issued a Public Notice for proposed maintenance dredging of the Sandy Hook Channel.

March 31, 2017 The Corps transmitted a final Biological Assessment.

April 25, 2017 Via email, the Service noted some missing information preventing us from starting the 90-day consultation “clock,” and proposed an alternative schedule for completing formal consultation in time for the 2017 dredging action.

May 17, 2017 The Corps, the NPS, the Navy, and the Service met to discuss the consultation.

May 19, 2017 The Service transmitted to the Corps a Scope of Work to fund northeastern beach tiger beetle surveys. Adult surveys were conducted in July and August, and a larval survey in September. No beetles were found. Surveys will be conducted again in 2018.

June to October, 2017 The Service provided draft sections of the PBO for Corps, Navy, and

NPS review, and coordinated via telephone and email.

BIOLOGICAL OPINION

DESCRIPTION OF THE PROPOSED ACTION

Sandy Hook Channel - Background

The Port of New York and New Jersey is the largest port on the East Coast. One key component of the Port is New York Harbor—a major maritime shipping port and center of commerce (see Figure 1). Under the New York Harbor Federal Navigation project, the Corps is tasked with maintaining and improving access to, and navigation within, New York Harbor. This Federal project includes several components, such as managing and monitoring ocean placement of dredged material at the Atlantic Ocean’s Historic Area Remediation Site (HARS) and at man-made reef sites that accept dredged material from navigation projects within the New York Harbor, as well as overseeing all sediment sampling and testing, and evaluating testing data for all proposed ocean disposal projects (Corps 2017a). The New York Harbor Federal Navigation project also includes operating and maintaining the Caven Point Marine Terminal and 31 miles of Federal navigation channels and anchorage areas within the Upper and Lower New York and New Jersey Harbor. This component of the project includes preliminary engineering and design, with ocean placement testing scheduled for future maintenance dredging of various channels that comprise the Harbor (Corps 2017a).

The Sandy Hook Federal Navigation Channel (Sandy Hook Channel; also known as Bayside) (see Figure 1) is part of this system of Federal channels, adopted in 1884, and modified in 1933, 1937, 1958, 1965, 1982, and in the Water Resources Development Acts of 1986 and 1990 (Corps 2017a). The Sandy Hook Channel is a Congressionally authorized, critical, high-use deep-draft navigation channel that provides maritime access to New York Harbor. Sandy Hook Channel also provides access to Navy facilities in Raritan Bay (Corps 2017b). The Corps maintains Sandy Hook Channel to a depth of 35 feet below MLLW (Corps 2017a).

In addition to carrying out its own program of maintenance dredging, the Corps also occasionally authorizes dredging of the Sandy Hook Channel by other parties through its Regulatory Branch.

Most recently, the Navy dredged the Sandy Hook Channel to a depth of 45 feet below MLLW in spring 2016, as authorized by a May 15, 2015 Corps permit (NAN-2011-00278). The Navy’s 2016 dredging did not result in incidental take of listed species and is not covered by this PBO.

Figure 1. Map showing accretion of a sand spit into Sandy Hook Channel, 1995 to 2015

Increased Sand Transport and Dredging

Located immediately south of the Sandy Hook Channel, the northern tip of the Sandy Hook peninsula has been accreting sand at an accelerated rate in recent years (see Figure 1). Much of the recent accretion in this area is likely attributable to repeated Corps beach nourishment actions south of Sandy Hook, carried out as a shore protection measure along the developed New Jersey coastline between Sea Bright Borough and Manasquan Inlet.2 Large periodic beach nourishment actions have occurred south (updrift) of Sandy Hook since 1995. These nourishments have added millions of cubic yards of sand to the littoral system. Sand is carried north and deposited by the northern-flowing longshore current in combination with large coastal storm events, which move large volumes of available sand into the influence of the longshore current. Evaluation of landform and shoreline changes shows that between 2002 and 2013 the northern-most portion of Sandy Hook experienced a net gain of approximately 15 acres (Corps 2017b).

As sand deposition continues along the northern tip of Sandy Hook, the accreting material has begun to encroach on the southern side of the Federal navigation channel. In recent years, the channel has experienced a dramatic increase in the rate of shoaling that has necessitated more frequent and more extensive dredging. Increased dredging is necessary to address the shallow depths of the shoals that limit the safety, reliability, and effectiveness of the navigation channel (Corps 2017b). In addition to shoaling, the accretion has also caused the growth of a sand spit north into the channel. As late as 2009, the tip of Sandy Hook was separated from the Sandy Hook Channel by approximately 500 feet of open water. Since at least 2011, however, a spit of sand has accreted to the point of intersecting the channel (see Figure 1). Corps dredging since that time has involved removal of material from the spit above the MLLW line (i.e., intertidal beach), and sometimes also above the Mean High Water (MHW) line (i.e., supratidal beach).

The section of the Sandy Hook Channel located north of Sandy Hook has had an active dredging history within the recent past as shown by Corps dredging actions since 1977, listed in Table 1.

The greatest single dredging event, removing the largest volume of sand occurred in 1982, but as shown in Table 1, that dredging event was one of only three that occurred over a 30-year period (1977 to 2008). In contrast, from 2008 until the present, maintenance dredging has been conducted every 1 to 3 years and required dredging volumes have grown increasingly greater with each event. These increases have been necessitated by a combination of factors including deeper draft vessels and the acceleration of deposition rates within the affected section of the channel (Corps 2017b).

The accreting sand spit that has begun impeding safe navigation through the Sandy Hook Channel is located within a section of Sandy Hook known as North Beach. For management purposes, most of North Beach is designated by NPS as a Natural Zone, primarily the Sensitive Resource Subzone, as shown in Figure 2 (NPS 2014).

2 The Corps’ program of beach nourishment covering all of Monmouth County’s Atlantic coast south of Sandy Hook is known as Sections I and II of the Atlantic Coast of New Jersey Sandy Hook to Barnegat Inlet Beach Erosion Control Project (BECP). A 2002 PBO on the BECP considered potential benefits to piping plovers and seabeach amaranth from anticipated increased sand transport to Sandy Hook; however, the 2002 PBO did not anticipate the growth of Sandy Hook to the point of intersecting the Federal navigation channel. The 2002 PBO also evaluated a number of potential adverse effects to listed species (USFWS 2002).

Figure 2. National Park Service Management Zones on Sandy Hook (NPS 2014)

Table 1. Past and projected (*) Corps dredging actions, 1977 to 2020 (Corps 2017b, Wrocenski pers. comm. 2017). TBD = to be determined.

Start Date End Date Volume

(Cubic Yards) Dredge Type Material

Removed above

MLLW

Covered by this PBO

1977 1977 140,000 Unknown No No 1982 1982 352,166 Unknown No No 1997 1997 93,059 Unknown No No 9/13/2008 11/5/2008 24,000 Hopper No No 9/5/2009 9/21/2009 34,335 Hopper No No 12/6/2011 3/31/2012 176,215 Hopper/Mechanical Yes (1.54 acres) No 11/11/2013 12/13/2013 261,430 Mechanical Yes (2.80 acres) No 10/17/2015 12/13/2015 336,010 Mechanical Yes (2.80 acres) Yes 10/15/2017* 12/15/2017 350,000 Mechanical Yes (2.57 acres) Yes 10/15/2018* 12/15/2018 225,000 Mechanical TBD Yes 10/15/2019* 12/15/2019 245,000 Mechanical TBD Yes 10/15/2020* 12/15/2020 270,000 Mechanical TBD Yes Note: Dredging by the other parties, authorized by the Corps, is not shown in the above table.

Description of Covered Federal Actions

As defined in the ESA regulations (50 CFR 402.02), “action” means “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas.” The following Federal actions are covered by this PBO.

2015 Corps Dredging

This action involved mechanical dredging of 336,010 cubic yards from the tip of Sandy Hook between October 17 and December 13, 2015. Approximately 2.80 acres of beach above the MLLW line, including 2.53 acres above the MHW line, were removed from the tip of the accreting spit (Figure 3). As a result of dredging, the area of intertidal beach was reduced in size from 0.27 acre (1,120 linear feet of ocean frontage) to 0.13 acre (750 linear feet of ocean frontage). All excavated sediments were placed offshore at the HARS (Corps 2017b).

Emergency consultation was conducted; via letter dated September 25, 2015, the Service concluded the emergency action was likely to adversely affect listed species. This PBO constitutes after-the-fact formal consultation on the effects of the 2015 action.

2017 Corps Dredging

This action involves mechanical dredging of approximately 350,000 cubic yards from the tip of Sandy Hook starting November 2017. The Corps expects to remove approximately 2.57 acres above the MLLW line, including approximately 1.87 acres of supratidal beach above the MHW line (Figure 4). The 2017 work will be performed using a mechanical clamshell dredge, utilizing scows to transport the material to the Sea Bright Borrow Area for ocean placement. This work is expected to take approximately 2 months starting in early November 2017 (Corps 2017b, Wrocenski pers. comm. 2017).

Figure 3. Limits of dredging, 2015 (Corps 2017b)

Figure 4. Corps condition survey, June 2017 (Wrocenski pers. comm. 2017)

The contractor performing the work, Weeks Marine Inc., will have a number of personnel in the action area. Most of these individuals will be on the dredge, scows, crew boats, and tugboats.

Other individuals, including both contractor and Corps personnel, will be on the beach including a safety officer, a security guard, a Quality Assurance representative, a supervisor / project manager, a project engineer, and a Quality Control inspector. The Corps has scheduled a pre-construction meeting for November 1, 2017, before dredging commences. This meeting will confirm the exact number of personnel who will be on the beach. In accordance with the Contract Specifications and an NPS Special Use Permit, there will construction fencing on the beach for the duration of the work. The 2017 action will also include pre- and post-dredging topographic / bathymetric surveys conducted from both land and water (Wrocenski pers. comm.

2017).

Future Corps Dredging Actions

This action includes all future Corps maintenance dredging of the Sandy Hook Channel within 1,000 feet of the MLLW line of Sandy Hook through February 28, 2038. Dredging frequencies and volumes are expected to vary over the life of this PBO. From 2018 through 2020, annual dredging is planned with projected volumes ranging from 225,000 to 270,000 cubic yards (Table 1). After 2020, future dredging needs are estimated at 150,000 cubic yards every year (Corps 2017b).

The extent of intertidal and supratidal beach removed by each dredging action will vary over the life of this PBO. Some dredging actions may require removal of only subtidal material (i.e., below the MLLW line); however, most dredging actions are expected to also include removal of intertidal and supratidal beach (Corps 2017b). We expect that the area of intertidal and supratidal beach removal will likely decrease by 2020, due to annual dredging that routinely removes newly forming subtidal shoals before they reach the point of building out the sand spit (i.e., annual dredging will largely preclude the formation of intertidal and supratidal beach, rather than removing such areas).

This Federal action covers mechanical dredging, as well as the use of hopper dredges. If any new or alternative dredging methods are proposed, the Corps and the Service will evaluate the likely effects of such methods on listed species and determine if these methods can be covered by this PBO. Mechanical dredging includes clamshell and bucket dredges, which excavate material for transport to the disposal site. In contrast, hopper is a type of hydraulic dredging, which involves sucking up a mixture of sediment and water (known as slurry) from the bottom surface and then transferring the mixture through a pipeline. In the case of a hopper dredge, the material is transferred into the vessel’s hopper(s) for transport to the disposal site (Welp undated). This Federal action also includes supporting activities necessary to carry out the dredging, such as bathymetric and topographic surveys, and security fencing on the beach to protect public safety.

Material dredged through actions covered by this PBO will be: (a) deposited at the HARS, which is located approximately 3.5 nautical miles east (and slightly south) of Sandy Hook; (b) deposited at the Sea Bright Borrow Area, which is located roughly 1 to 2 miles offshore of southern Sandy Hook and provides the sand source for several of Corps beach nourishment projects; (c) deposited at another approved ocean disposal area; or (d) utilized in a beneficial use project(s). Proposals to utilize dredged materials for a beneficial use project(s) on or within 1,000 feet of Sandy Hook’s MLLW line must: (a) ensure that all material in question is at least 90 percent sand; and (b) be approved by the Service and the NPS pursuant to the ESA and other applicable laws, regulations, and policies.

Future Corps Dredging Authorizations

This action includes all future Corps regulatory actions authorizing dredging of the Sandy Hook Channel within 1,000 feet of the MLLW line of Sandy Hook through February 28, 2038. We anticipate the Navy may dredge under a Corps permit two times over the life of this PBO, likely involving subtidal material only. In addition to the Navy, separate dredging actions proposed by parties other than the Corps (but requiring Corps authorization) would also be covered by this PBO. As with Corps-funded dredging actions, this Federal action is restricted to mechanical and hopper dredge methods (though alternative methods may be evaluated), includes supporting activities (e.g., surveys, fencing), and is restricted to the disposal options listed above.

Conservation Measures

The Service’s Consultation Handbook defines “Conservation Measures” as “actions to benefit or promote the recovery of listed species that are included by a Federal agency as an integral part of a proposed action under ESA consultation. These actions will be taken by the Federal agency or applicant, and serve to minimize or compensate for, project effects on the species under review” (USFWS and NMFS 1998). Conservation Measures may include actions that the Federal agency or applicant have committed to complete in a biological assessment or similar document.

When used in the context of the ESA, “Conservation Measures” represent actions pledged in the project description that the action agency or the applicant will implement to further the recovery of the species under review. Such measures may be tasks recommended in the species’ recovery plan, should be closely related to the action, and should be achievable within the authority of the action agency or applicant. Since Conservation Measures are part of the proposed action, their implementation is required under the terms of the consultation (USFWS and NMFS 1998). In identifying Conservation Measures, the Service recommends use of the full mitigation sequence, to achieve, at a minimum, “no net loss” in the species’ conservation. The mitigation sequence should be observed (i.e., avoid first, then minimize, then compensate), except where specific circumstances may warrant a departure from this preferred sequence.

For dredging actions authorized by the Corps, but not funded or carried out by the Corps, the Corps may designate (in writing) the applicant or permitee as the party responsible for implementation of Conservation Measures listed below. In such cases, the Service will coordinate directly with the applicant or permittee, with copies of all written and electronic communications provided to the Corps. The Corps retains ultimate responsibility for ensuring that an applicant or permittee implements all binding provisions of this PBO.

1. Tier 2 Consultation and Agency Coordination

Under the Service’s 2015 policy on incidental take statements (Federal Register Vol. 80, No. 90,

pp. 26832-26845), the Federal actions covered by this PBO constitute a “mixed programmatic action.” A mixed programmatic action includes two elements: (1) one or more Federal actions that will not be subject to further Section 7 consultation (i.e., the 2015 and 2017 dredging actions); and (2) a framework for the development of future actions that are authorized, funded, or carried out at later time (i.e., all subsequent dredging actions described above, other than the 2015 and 2017 actions) and take of listed species would not occur unless and until those actions are carried out and subject to further consultation. Consistent with this policy, the incidental take statement included with this PBO covers the 2015 and 2017 dredging actions only. Tier 2 consultation will be conducted for all future dredging actions covered by this PBO. An incidental take statement for future actions will be issued, if appropriate, with each Tier 2 consultation.

Via letter, the Corps will initiate Tier 2 consultation at least 75 days before the start of each future dredging action. The Tier 2 initiation letter will include information on the extent and timing of any bathymetric/topographic surveys (see Conservation Measure 4); the qualifications of any proposed species monitors or surveyors (e.g., as may be required under Conservation Measures 4, 6, 7, or 8); the location and volume of material to be dredged; the aerial extent of any intertidal and supratidal beach to be removed; the method of dredging; the proposed dredged material disposal location; and the start and end dates of the dredging. The Tier 2 initiation letter will also include detailed information for any security fencing or other equipment or temporary structures proposed to be on the ground in Sandy Hook during dredging, as well as the estimated number of Corps and contractor staff that will be present in Sandy Hook, and a Corps point of contact responsible for overseeing and directing field operations on the ground during dredging (see Conservation Measure 5). The Tier 2 initiation letter will also include a summary of landform monitoring to date (see Conservation Measure 11). Finally, the Tier 2 initiation letter will confirm adherence to all Conservation Measures and Terms and Conditions listed in this PBO, and will include, if appropriate, a brief explanation of how specific PBO provisions will be carried out.

The Service will review the above-listed information, coordinate with the Corps and the NPS as necessary, and issue a Tier 2 formal consultation letter within 45 days of receiving complete project information from the Corps. The Tier 2 formal consultation letter will include an action-specific incidental take statement, if take of listed wildlife species is anticipated. The Corps and the Service will provide copies of all Tier 2 consultation letters and supporting documents to the

NPS.

For bathymetric/topographic survey actions greater than 300 feet from the MLLW line occurring independent of dredging actions (e.g., offshore condition surveys), no Tier 2 consultation or other inter-agency coordination will be necessary.

For survey actions on Sandy Hook and/or within 300 feet of the MLLW line occurring independent of dredging actions (e.g., nearshore or onshore condition surveys), no Tier 2 consultation will be necessary. Instead, the Corps will notify the Service and the NPS via email at least 14 days prior to the start of the survey, and the Corps will implement Conservation Measure 4. If a species monitor will be needed pursuant to Conservation Measure 4, the qualifications of the proposed monitor will be submitted to the Service and the NPS concurrent with the 14-day notification email.

2. Dredge Equipment Siting

All dredging equipment will be located offshore in open water. No dredging will occur from land-side based equipment on Sandy Hook. No associated equipment or material (e.g., pipeline) will be placed on Sandy Hook unless previously coordinated during the Tier 2 consultation.

3. Seasonal Restriction to Protect Piping Plovers

The Corps will seasonally restrict all dredging and associated activities (e.g., bathymetric/topographic surveys) from March 1 through August 31 of each year (restricted season), except as noted below.

a) No exceptions will be made to this seasonal restriction for removal of intertidal or supratidal beach, or for removal of subtidal material within 300 feet of the MLLW line.

b) No exceptions will be made to this seasonal restriction for installation or removal of security fencing, pipeline, or any other temporary structures on the beach. (As per Conservation Measure 2, no dredging will occur from land-side based equipment on Sandy Hook at any time of year, and no pipeline will be placed on Sandy Hook at any time of year unless specifically coordinated during the Tier 2 consultation.)

c) On a case-by-case basis, dredging of subtidal material greater than 300 feet from the MLLW line may be approved during the restricted season if the Corps, the Service, and the NPS all agree that such dredging will not disturb any listed species or their habitats.

Agency coordination and concurrence may be via email.

d) Other offshore activities associated with a dredging action (e.g., bathymetric surveys;

mobilization/demobilization of dredging equipment) located greater than 300 feet from the MLLW line will not be subject to the seasonal restriction.

e) If onshore or nearshore (within 300 feet of MLLW) bathymetric/topographic surveys must be conducted during the restricted season, the Corps will follow the provisions listed under Conservation Measure 4.

4. Measures to Minimize Disturbance from Bathymetric and Topographic Surveys

As per Conservation Measure 3, the Corps will strive to conduct all onshore and nearshore (within 300 feet of MLLW) bathymetric and topographic surveys outside the restricted season of March 1 to August 31. However, if onshore or nearshore (within 300 feet of MLLW) surveys must be conducted during the restricted season, the Corps will follow these provisions.

a) The Corps will coordinate surveys with the Service and the NPS. Service and/or NPS staff may elect to be present during the surveys.

b) The Corps will strive to end surveys by March 15 or, if that is not possible, by March 31.

The Corps will strive to initiate surveys after all piping plover chicks at North Beach have fledged.

c) The Corps will arrange for a qualified species monitor to be on-site if surveys must occur between April 1 and the fledging of the last piping plover chick at North Beach. The species monitor will coordinate with NPS staff 1 week before the start of the survey work, 1 day before the start of survey work, and then each day the surveys continue, to obtain current information on the locations of piping plover territories, nests and/or chicks, as well as current information on the locations of other listed species. The species monitor will observe piping plover adults for signs of disturbance from the survey activities; direct surveyors away from sensitive territorial/nesting/chick habitats; and ensure that surveyors do not approach any nest sites or unfledged broods. The species monitor will also direct surveyors to minimize disturbance of red knots, northeastern beach tiger beetles, and seabeach amaranth. The species monitor may be Corps staff, contracted staff, or NPS staff (e.g., via transfer funding). The qualifications of the species monitor must be reviewed and approved by the Service, with an opportunity for input from the NPS. No motorized vehicles or drones (e.g., Unmanned Aerial Vehicles or Systems) will be used for bathymetric / topographic surveys on or over the beach, or offshore within 300 feet of MLLW, between April 1 and the fledging of the last piping plover chick at North Beach.

If topographic or bathymetric surveys are to be conducted between the fledging of the last piping plover chick and November 30, the Corps will follow these provisions:

a) The Corps will coordinate the surveys with the Service and the NPS. Service and/or NPS staff may elect to be present during the surveys. The Corps will request from NPS information on the most recent locations of any seabeach amaranth plants and of any migrant red knots or piping plovers—the Corps will transmit this information on species locations to the survey crew(s).

b) Survey crews will familiarize themselves with the seabeach amaranth, as well as larval and adult northeastern beach tiger beetle search images and current locations and will avoid crushing any plants or beetles.

c) Survey crews will to strive to avoid disturbing flocks of shorebirds, which could include migrant red knots and/or piping plovers.

5. Security and Other Onshore Personnel

The Corps will ensure that any security personnel or other Corps or contractor personnel operating on the ground in Sandy Hook during each dredging operation minimize their environmental impacts and coordinate closely with the NPS. With each Tier 2 initiation letter, the Corps will include information on the estimated number of Corps and contractor staff that will be present on the ground in Sandy Hook, and a Corps point of contact responsible for overseeing and directing field operations on the ground during dredging (see Conservation Measure 1). The Corps will ensure that all such personnel are familiar with the Conservation

Measures and any other relevant portions of this PBO. The Corps will ensure that personnel understand the need to avoid crushing seabeach amaranth plants and other vegetation, and to avoid disturbing flocks of shorebirds that may include red knots or migrant piping plovers. If driving on the beach is planned, the Corps will ensure that driving is kept to a minimum and restricted to a consistent travel route and/or other conditions imposed by the NPS. If any biological monitoring staff, Corps staff, or contractor staff observe3 crushing of vegetation, disturbance of shorebird flocks, excessive/inappropriate beach driving, or other activities by onshore personnel impacting beach species or habitats, they will report such activities via email to the designated Corps point of contact for immediate corrective action, with a copy to the Corps and the Service. Within 24 hours of receiving such notification, the Corps point of contact will notify the Service and the NPS of the corrective action(s) that have been implemented.

6. Species Monitoring

The Corps will implement the Red Knot Monitoring Plan (Appendix A) to assess species presence as well as any response to the dredging. The Corps will implement the Northeastern Beach Tiger Beetle Monitoring Plan (Appendix B) as necessary and appropriate based on the results of the 2017 and 2018 Corps-funded presence/absence surveys (in progress).

7. Seabeach Amaranth Surveys and Fencing to Avoid Direct Plant Impacts

The Corps will arrange for a survey of all supratidal beach within the impact area4 for the presence of seabeach amaranth plants no more than 14 days before the start of each dredging action that is scheduled to be initiated during the growing season5 (May 15 through November 30). The Corps will mark any plants occurring inside the impact area, but outside of the sand removal area, with string-and-post fencing and appropriate signage and prohibit entry by project personnel and vehicles. Sand/snow fence will not be used to mark plants, as it can cause plants become buried by sand. The string-and-post fencing will allow a 10-foot buffer around each plant or group of plants. The survey and marking will be carried out by qualified Corps staff, contracted staff, and/or NPS staff (e.g., via transfer funding) familiar with seabeach amaranth.

The qualifications of the surveyor must be reviewed and approved by the Service, with an opportunity for input from the NPS. The Corps will report to the Service and the NPS how many plants were fenced (and will be avoided), and the number of plants (if any) that were not fenced

3 Such activities may also be reported to the Corps point of contact by NPS staff if, in the course of their normal duties, they happen to observe potential impacts to beach species from the actions of onshore project personnel.

4 Throughout this document we use the following terms to describe three nested areas:

Sand removal area = All subtidal, intertidal, and supratidal areas of sand to be removed. Due to the need to establish a stable side slope, the sand removal area extends about 200 feet landward of the channel limits; see Figures 3 and 5.

Dredging footprint (limits of disturbance) = In addition to the sand removal area, the dredging footprint also includes all areas that will be disturbed by security fencing or other equipment or temporary structures, security or other ground-based personnel, beach driving, and potentially earth moving (e.g., beach bulldozing), which may be conducted as part of the Scarping Abatement Plan (Appendix D).

Impact area = In addition to the sand removal area and the dredging footprint, the impact area also includes all intertidal and supratidal beach within 300 feet of the dredging footprint.

5 Due to the seasonal restriction to protect piping plovers, dredging actions necessitating a seabeach amaranth survey cannot be initiated during the early part of the growing season. Considering Conservation Measures 3 and 7 together, seabeach amaranth surveys and fencing would only apply between September 1 and November 30.

because they cannot be avoided by dredging or security fencing, triggering the need for the Contingency Plan under Conservation Measure 8.

8. Contingency Plans to Minimize Species Impacts

The Corps will implement the Species Contingency Plan (Appendix C) as necessary and appropriate. The Contingency Plan provides for additional Conservation Measures that will apply in the event that: (a) significant numbers of red knots are harassed by dredging actions; (b) northeastern beach tiger beetle larvae are present in the dredging footprint at the time of dredging; and/or (c) seabeach amaranth plants are present in the dredging footprint at the time of dredging.

9. Scarping Abatement Plan to Minimize Indirect Habitat Impacts

The Corps will implement the Scarping Abatement Plan (Appendix D) to minimize the adverse habitat impacts resulting from dredging, and from the habitat’s proximity to the deep water of the channel.

10. Habitat Offset Plan to Compensate for Unavoidable Habitat Impacts

The Corps will implement the Habitat Offset Plan (Appendix E) to abate the loss of intertidal and supratidal beach, both from direct removal of such areas and as a result of precluded habitat formation.

11. Land Form Monitoring

The Corps will annually monitor topography and morphology of the North Beach spit area, and adjacent piping plover nesting habitat (as mapped using NPS nesting data), using standard survey techniques and current in-house LIDAR imagery. The Corps will share the results with the Service and the NPS on an annual basis, as part of each Tier 2 consultation.

12. Regional Sediment Management

The Corps will invite the Service and the NPS to participate in its regional sediment management planning effort, as it relates to Sandy Hook Channel dredging.

ACTION AREA

The action area is defined at (50 CFR 402.02) as “all areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action.” The Service has determined that the action area for this project includes all intertidal, beach, dune, swale, pond, and associated habitats within the North Beach section of Sandy Hook (see Figures 2 and 5), extending between the developed North Beach bathing/recreational area and the U.S. Coast Guard (USCG) property. The action area also includes all open ocean and bay waters within 1,000 feet of the North Beach MLLW line.

Based on 2015 aerial imagery, the action area includes about 225 acres of intertidal and terrestrial habitats. However, that area may change considerably over the life of this PBO due to natural processes of accretion and erosion, anthropogenic updrift sand inputs, channel dredging, and other natural and human-induced factors. Located at the northern tip of the Sandy Hook peninsula, North Beach is an undeveloped barrier beach and dune complex. The area includes a mature dune system with several interior tidal pools and flats. Seaward of the dunes is an accreting sand spit with additional wet flats and pools. The entire area is characterized as a highly dynamic coastal environment subject to both accretion and erosion driven by natural forces such as storms, tides, currents, and waves (Corps 2017b). Despite the naturally high rates of change, the recent trend of accretion (as shown in Figure 1) is expected to continue for the foreseeable future due to the updrift program of beach nourishment. The open water portion of the action area is a high-energy ocean environment. Immediately adjacent to the sand spit, and intersecting with it, is the deep fast-flowing water of the Sandy Hook Channel. Photos of the tip of the sand spit and the adjacent channel in July 2017 are provided in Appendix F.

All of the beach, dune, and intertidal areas included in the action area have been designated by the NPS as a Natural Zone, primarily the Sensitive Resource Subzone, as shown in Figure 2 (NPS 2014). Within this zone the NPS management goal is improvement of habitat conditions.

The NPS seeks to maintain and protect current natural resource management practices, and to increase research and monitoring of sensitive habitat areas like the beaches on Sandy Hook’s northern tip. The mosaic of coastal habitats is managed to provide unique opportunities for experiencing and learning about natural systems and native plant communities. In the Natural Zone, the NPS seeks to create a variety of natural immersion experiences to increase visitor awareness and enjoyment of the natural environments including nature study, wildlife viewing, camping, and instructional programming (NPS 2014).

PIPING PLOVER STATUS

Across the New York-New Jersey Recovery Unit

Piping plovers breed in three discrete areas, each listed separately under the ESA. The Atlantic Coast and Northern Great Plains populations are listed as threatened, while the Great Lakes population is listed as endangered. Each breeding population has its own recovery plan. Birds from all three populations winter along the U.S. coast from North Carolina to Texas, as well as in Mexico and the Caribbean (USFWS 2009). The Atlantic Coast piping plover population breeds on coastal beaches from Newfoundland to North Carolina and winters along the Atlantic Coast from North Carolina south, along the Gulf Coast, and in the Caribbean (USFWS 1996a).The Bahamas is a particularly important wintering area for piping plovers from the Atlantic Coast breeding population (Pover 2016).

Within its Atlantic Coast breeding range, the piping plover was federally listed as threatened in 1986. The piping plover is a small shorebird approximately 7 inches long with a wingspan of about 15 inches. Piping plovers are present on the New Jersey shore during the breeding season, generally between March 1 and August 31, though migrants may be present through October.

These territorial birds nest above the high tide line, usually on sandy ocean beaches and barrier islands, but also on gently sloping foredunes, blowout areas behind primary dunes, washover areas cut into or between dunes, the ends of sandspits, and deposits of suitable dredged or pumped sand. Piping plover nests consist of a shallow scrape in the sand, frequently lined with shell fragments and often located near small clumps of vegetation. Females lay four eggs that hatch in about 25 days, and surviving chicks learn to fly (fledge) after about 25 to 35 days. The flightless chicks follow their parents to feeding areas, which include the intertidal zone of ocean beaches, ocean washover areas, mudflats, sandflats, wrack lines, and the shorelines of coastal ponds, lagoons, and salt marshes. Piping plover adults and chicks feed on marine macroinvertebrates such as worms, fly larvae, beetles, and crustaceans (USFWS 1996a).

Threats to piping plovers on the Atlantic Coast include habitat loss, human disturbance of nesting birds, predation, and oil spills and other contaminants. Habitat loss results from development, as well as from beach stabilization, beach nourishment, beach raking, dune stabilization, and other physical alterations to the beach ecosystem. Human disturbance of nesting birds includes foot traffic, sunbathing, kites, pets, fireworks, mechanical raking, construction, and vehicle use. These disturbances can result in crushing of eggs, failure of eggs to hatch, and death of chicks. Predation on piping plover chicks and eggs is intensified by development because predators such as foxes (Vulpes vulpes), rats (Rattus norvegicus), raccoons (Procyon lotor), skunks (Mephitis mephitis), crows (Corvus spp.), and gulls (Larus spp.) thrive in developed areas and are attracted to beaches by human food scraps and trash. Unleashed and feral dogs (Canis familiaris) and cats (Felis domesticus) also disturb courtship and incubation and prey on chicks and adults (USFWS 1996a).

According to the Consultation Handbook (USFWS and NMFS 1998), the Service’s jeopardy analysis may be based on an assessment of impacts at the level of recovery units when those units are documented as necessary to both the survival and recovery of the species in a final recovery plan, for which a notice of availability has been published in the Federal Register. The Consultation Handbook also notes that, when the Service’s review in a Biological Opinion (BO) focuses on the effects of the action on a discrete recovery unit, the species status section of the BO is to describe the status of that unit and its significance to the species as listed.

The recovery plan for the Atlantic Coast population of the piping plover (USFWS 1996a) delineates four recovery…