Southeast Regional Office 263 13Th Avenue South St. Petersburg

UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration NATIONALMARINEFISHERIESSERVICE Southeast Regional Office 263 th13 Avenue South St. Petersburg, Florida 3370 1-5505 (727) 824-5312; FAX 824-5309 http://sero.nmfs noaa.gov

F/SER31:NB 1LUG 2011

Mr. Tunis W. McElwain Fort Myers Regulatory Section Jacksonville District Corps of Engineers 1520 Royal Palm Square Boulevard, Suite 310 Fort Myers, Florida 33919

Re: SAJ-2011-859 and SAJ-2011-961

Dear Mr. McElwain:

This constitutes the National Marine Fisheries Service’s (NMFS) biological opinion issued in accordance with Section 7 of the Endangered Species Act (ESA) of 1973 based on our review of the U.S. Army Corps of Engineers Jacksonville District’s (JDCOE) proposed action to issue permits to two individual permittees, Shell Cut, LLC (the “Poveromo” property) and Mr. Richard Yankowski’s property, to install riprap in front of existing, failing seawalls within smalltooth sawfish critical habitat in Charlotte County, Florida.

The biological opinion analyzes the project’s effects on smalitooth sawfish (Pristis pectinata) and smailtooth sawfish critical habitat. This opinion is based on project-specific information provided by the JDCOE, the applicant, and the applicant’s consultants as well as NMFS’ review of published literature. It is NMFS’ biological opinion that the action, as proposed, may affect, but is not likely to adversely affect srnalltooth sawfish, and is likely to adversely affect smalltooth sawfish critical habitat, but is not likely to destroy or adversely modify critical habitat.

We look forward to further cooperation with you on other COE projects to ensure the conservation and recovery of our threatened and endangered marine species. If you have any questions regarding this consultation, please contact Nicole Bailey, ESA Biologist, at (727) 824-5336, or by e-mail at Nicole.Baileynoaa.gov.

Sincerely,

Roy E. Crabtree, Ph.D. Regional Administrator

Enclosure

File: 1514-22.F.4 Ref: F/SERJ2O11/01716; F/SERI2O1I/01810

Endangered Species Act - Section 7 Consultation Biological Opinion

Agency: United States Army Corps of Engineers, Jacksonville District (COE)

Activity: Proposed COE-issuance of two regulatory permits to authorize in-water construction activities in Port Charlotte, Florida

Permit applications: • SAJ-2011-859, submitted by Mr. Richard Yankowski, to add 880 square feet of riprap in front of an existing corrugated seawall in Port Charlotte, Charlotte County, Florida. (Consultation Number F/SER!201 1/01716) • SAJ-201 1-961, Poveromo property submitted by Shell Cut, LLC, to add 880 square feet of riprap in front of an existing concrete seawall in Port Charlotte, Charlotte County, Florida. (Consultation Number F/SERJ2O11/01810)

Consulting Agency: National Oceanic and Atmospheric Administration, National Marine Fisheries Service (NMFS), Southeast Regional Office, Protected Resources Division, St. Petersburg, Florida

Approved By: - ‘)‘_ -Roy E. Crabtree, Ph.D., Regional Administrator NMFS, Southeast Regional Office St. Petersburg, Florida

Date Issued: ILU622 2011

Table of contents

1.0 CONSULTATIONHISTORY 3 2.0 DESCRIPTION OF THE PROPOSED ACTIONAND ACTIONAREA 4

3.0 STATUS OF LISTED SPECIES AND CRITICALHABITAT 5 4.0 ENVIRONMENTALBASELINE 9

5.0 EFFECTS OF THE ACTION ON SAWFISHCRITICALHABITAT 14 6.0 CUMULATIVEEFFECTS 14 7.0 DESTRUCTION OR ADVERSEMODIFICATION ANALYSIS 15 8.0 CONCLUSION 16 9.0 INCIDENTAL TAKESTATEMENT 17 10.0 CONSERVATIONRECOMMENDATIONS 17 11.0 REINITIATION OF CONSULTATION 17 12.0 LITERATURE CITED 18

2 Background

Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. § 1531 etseq.), requires that each federal agency shall ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species; Section 7(a)(2) requires federal agencies to consult with the appropriate Secretary on any such action. NMFS and the U.S. Fish and Wildlife Service (USFWS) share responsibilities for administering the ESA.

Consultation is required when a federal action agency determines that a proposed action “may affect” listed species or designated critical habitat. Consultation is concluded after NMFS determines that the action is not likely to adversely affect listed species or critical habitat or issues a biological opinion (opinion) that identifies whether a proposed action is likely to jeopardize the continued existence of a listed species, or destroy or adversely modify critical habitat. The opinion states the amount or extent of incidental take of the listed species that may occur, develops measures (i.e., reasonable and prudent measures - RPMs) to reduce the effect of take, and recommends conservation measures to further conserve the species. Notably, no incidental destruction or adverse modification of critical habitat can be authorized, and thus there are no reasonable and prudent measures, only reasonable and prudent alternatives that must avoid destruction or adverse modification.

This document represents NMFS’ opinion based on our review of impacts associated with the COE’s proposed issuance of two individual construction permits to the following applicants: Mr. Richard Yankowski and the Poverorno property to install riprap within smalltooth sawfish critical habitat in Charlotte County, Florida. This opinion analyzes project effects on smalltooth sawfish designated critical habitat, in accordance with Section 7 of the ESA, and is based on project information provided by the COE and other sources of information including the published literature cited herein.

NMFS and the USFWS have developed a range of techniques to streamline the procedures and time involved in consultations for broad agency programs or numerous similar activities with predictable effects on listed species and critical habitat. Some of the more common of these techniques and the requirements for ensuring that streamlined consultation procedures comply with Section 7 of the ESA and its implementing regulations are discussed in the October 2002 Joint Services memorandum, Alternative Approaches for Streamlining Section 7 Consultation on Hazardous Fuels Treatment Projects (http ://www.fws.gov/endangered/esa-library/pdf/streaml ining.pdf see also, 68 FR 1628 (January 13, 2003). This opinion, in batching two permit applications, complies with the streamlining guidance.

BIOLOGICAL OPINION

1.0 CONSULTATION HISTORY

NMFS received two requests for ESA consultation from the COE dated April 14, 2011 and April 25, 2011. The COE determined that these projects may affect, but are not likely to adversely affect, sea turtles, smalitooth sawfish, and smalltooth sawfish critical habitat, and requested NMFS’ concurrence. Upon review, NMFS informed the COE on May 4, 2011, via e-mail, that placing riprap and/or any permanent structure below the mean high water (MHW) line is likely to adversely affect smalltooth sawfish critical habitat and that formal consultation would be required. Additional information was obtained through a conference call on May 17, 2011, between NMFS and the riprap installer for both projects (Charlotte County Seawalls). Supplementary information for the Poveromo project was provided by e-mail on May 27, 2011.

During a recent and related batched biological opinion, NMFS requested additional information from the COE regarding previously issued permits for seawall construction and replacements, and associated riprap, within both units of smalltooth sawfish designated critical habitat over a 5-year period (2005- 3 2009). This data was recently used by NMFS for the batched opinion (F/SERJ2O1O/04721)and is apropos to this opinion as well. NMFS and COE have together coordinated in contacting municipalities within Charlotte and Lee Counties to outline the impacts that riprap poses when placed inside smalltooth critical habitat, and explore options for issuing exemptions from the riprap requirement when construction projects occur within the critical habitat boundaries. NMFS sent a letter to Florida Department of Environmental Protection (FDEP) on July 29, 2010, indicating the conflict between the state’s riprap requirement and NMFS’ directive under the ESA to protect critical habitat for smalltooth sawfish. This letter also requested a meeting between COE, FDEP, and NMFS personnel to develop a plan to exempt seawalls inside of smalltooth sawfish critical habitat from the mandatory riprap placement requirement. The Fort Myers COE branch held the meeting on August 9, 2010, with several representatives from FDEP, COE, and NMFS in attendance. This meeting resulted in FDEP and Charlotte County suspending this requirement in areas designated as smalltooth sawfish critical habitat. NMFS and the COE are working on developing protocols to minimize essential feature impacts and encourage the use of living shoreline and/or alternative designs in future construction and maintenance of the above mentioned activities within ESA-designated critical habitat for smalltooth sawfish.

Though the riprap placement at both of these projects is not required by FDEP or Charlotte County, the information obtained through these meetings will be used for comparison of project impacts within this area. According to Charlotte County Seawalls, riprap placement for both of these projects is required in order to save the existing corrugated seawalls from failure. Alternative options were discussed during the conference call between NMFS and Charlotte County Seawalls, and the riprap installers repeatedly confirmed that this was the only viable option for seawall repair based on the type of existing seawalls, the applicant’s financial situations, and the amount of riprap necessary to support the size and length of the existing seawalls.

2.0 DESCRIPTION OF THE PROPOSED ACTION AND ACTION AREA

2.1 Proposed Action

.The applicants, Mr. Richard Yankowski and the Shell Cut, LLC property, propose projects that will affect smalltooth sawfish critical habitat (STSF CH) by installing permanent structures (i.e., riprap in front of existing seawalls) that will remove, or significantly modify, essential features within waterways located in Port Charlotte. The following discussions will detail each project’s proposed action.

Mr. Richard Yankowski, (NMFS ESA/PCTS consultation number - F/SERJ2O11/01716) proposes to install 880 square feet of riprap in front of an existing corrugated concrete seawall for stabilization. The project is located at latitude 26.9623°N, longitude 82.0563°W, along the Peace River, adjacent to 4366 North Shore Drive, Port Charlotte, Charlotte County, Florida. The site consists of approximately 110 linear feet of seawall with unconsolidated shoreline. A clump of red mangroves is growing near the western property line. According to the applicant, the existing seawall is failing and in immediate need of repair. The seawall is set back from the neighboring shoreline and placement of riprap would create a contiguous shoreline with properties to the west. This will result in a loss of approximately 880 square feet of shallow, euryhaline water with depths between 0 and -3 feet mean lower low water (MLLW). The substrate along the shoreline and waterward consists of sand, mud, and scattered rubble. No seagrass was observed within the project area. No dredging is proposed. No new slips are proposed. All work will be completed from the uplands, riprap will be hand placed around the existing mangroves. Turbidity curtains will be used to confine disturbed sediments at the project site. The applicant has agreed to comply with NMFS’ Sea Turtle and Smailtooth SawJIsh Construction Conditions dated March 23, 2006. According to the applicant, the project will take approximately 5 to 7 days to complete.

Shell Cut, LLC (the “Poveromo” property) (F/SERI2O11/01810) proposes to install 880 square feet of riprap in front of an existing corrugated concrete seawall for stabilization. The project is located at latitude 26.9629°N, longitude 82.1451°W, along the Hottelet Waterway, adjacent to 18451 Goodman 4 Circle, Port Charlotte, Charlotte County, Florida. The site consists of approximately 110 linear feet of seawall within a man-made residential canal. According to the applicant, the existing seawall is failing and in immediate need of repair. This will result in a loss of approximately 880 square feet of shallow, euryhaline water with depths between 0 and -3 feet MLLW. The substrate along the shoreline and waterward consists of mud and scattered rocks. No seagrass or mangroves were observed within the project area. Mangroves are present on the property to the north of this project site. A shallow trench will be excavated as a footer for the riprap and a filter cloth will be placed in the area of the riprap installation. Riprap will be placed on the footer area and the filter cloth will then by pulled back over the lower riprap and anchored. The remaining riprap will be placed at a 2 to 1 horizontal to vertical slope in front of the existing seawall for stabilization. No new slips are proposed. All work will be completed from the uplands. Turbidity curtains will be used to confine disturbed sediments at the project site. The applicant has agreed to comply with NMFS’ Sea Turtle and Smalitooth SawJIsh Construction Conditions. According to the applicant, the project will take approximately 5 to 7 days to complete.

2.2 Action Area

The action area is defined by regulation as “all areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action” (50 CFR 402.02). The proposed projects are located adjacent to the shorelines of man-made canals and open waterways within Port Charlotte, Charlotte County, Florida. The individual projects areas consist of unconsolidated shoreline, in developed areas with existing concrete seawalls or riprap revetments. The action area typically consists of armored shorelines with existing corrugated seawalls, with sandy-mud with scattered rocks, and water depth varying from 0 to 3 feet along the length of the proposed riprap footprint. The proposed projects are located within the Charlotte Harbor Estuary Unit of designated critical habitat for endangered smalltooth sawfish. The action area for the proposed projects includes the area in which construction will take place, as well as the water areas immediately surrounding the construction area.

3.0 STATUS OF LISTED SPECIES AND CRITICAL HABITAT

The following endangered (E) and threatened (T) species under the jurisdiction of NMFS may occur in or near the action area:

Common Name Scientific Name Status

Sea Turtles Loggerhead sea turtle Caretta caretta’ E/T Hawksbill sea turtle Eretmochelys iinbricata E Leatherback sea turtle Derinochelys coriacea E Kemp’s ridley sea turtle Lepidochelys keinpii E Green sea turtle Chelonia 2niydas EIT Fish Smalltooth sawfish Pristispectinata E

Critical Habitat Smalltooth sawfish - Charlotte Harbor Estuary Unit

3.1 Species Not Likely to be Adversely Affected

NMFS and IJSFWSpublished a proposed rule in the Federal Register on March 16, 2010 ,to list nine Distinct Population Segments (DPSs) of loggerhead turtles worldwide, seven of which are endangered (including the Northwest Atlantic Ocean DPS) and two of which are threatened (75 FR 12598). 2 Green turtles are listed as threatened except for the Florida and Pacific coast of Mexico breeding populations, which are listed as endangered.

5 Sea Turtles

Five species of sea turtles (loggerhead, hawksbill, leatherback, Kemp’s ridley, and green) may be found in or near the action area. The project may affect sea turtles by injury or death as a result of interactions with equipment or materials used during construction. However, the chance of injury or death from interactions with construction equipment and materials is discountable as these species are highly mobile and can easily avoid these interactions; also, the applicant will be required to implement NMFS’ March 23, 2006, Sea Turtle and Smalltooth SawJish Construction Conditions, which will further reduce the chance of an interaction.

Sea turtles may be affected by being temporarily unable to use the sites due to potential avoidance of construction activities and related noise, and physical exclusion from areas contained by turbidity curtains, but these effects will be insignificant. Disturbance from construction activities and related noise will be intermittent and only occur during the day for part of the construction period; turbidity curtains will only enclose small areas at any one time in the project area, will be removed upon project completion, and will not appreciably interfere with use of the area by listed species. The proposed sites are located in existing maintained man-made canals and open waterways, and no seagrasses have been observed within the individual project areas and no mangroves will be impacted; therefore, NMFS does not expect any loss of sea turtle habitat.

Turbidity and degraded water quality from riprap placement should be temporary, and water clarity conditions and quality should return to normal on a daily basis based on the tidal flushing in the project areas and the permit requirements to comply with state water quality standards. The applicants will be required to use turbidity curtains during construction. Based on the reasons stated, all effects of the proposed action on sea turtles will be discountable or insignificant.

Smalitooth Sawfish

The U.S. Distinct Population Segment (DPS) of smalltooth sawfish was listed as endangered under the ESA on April 1, 2003 (68 FR 15674). The smalitooth sawfish is the first elasmobranch to be listed in the United States. Historically, smailtooth sawfish occurred commonly in the inshore waters of the Gulf of Mexico as far west as Texas and the U.S. Eastern Seaboard up to North Carolina, and more rarely as far north as New York. Today, smalltooth sawfish remain in the United States typically in protected or sparsely populated areas off the southern and southwestern coasts of Florida (NMFS 2010).

Adults and juvenile smalltooth sawfish may be found in or near the action area. The project may affect adult smalitooth sawfish by injury or death as a result of interactions with equipment or materials used during riprap placement. However, the chance of injury or death from interactions with construction equipment and materials is discountable as this species is highly mobile and can easily avoid these interactions. The applicant will also adhere to NMFS’ Sea Turtle and Sn7alltooth Sawfish Construction Conditions, which will further reduce the chance of an interaction. Adult smalltooth sawfish may also be affected by being temporarily unable to use the site due to potential avoidance of construction activities and related noise, and physical exclusion from areas contained by turbidity curtains, but these effects will be insignificant. Disturbance from riprap placement and related noise will be intermittent and only occur during the day for part of the construction period; turbidity curtains will only enclose small areas at any one time in the project area, will be removed upon project completion, and will not appreciably interfere with use of the area by adult smalltooth sawfish.

As discussed in Section 3.2, the project areas are within critical habitat designated to provide nursery habitat for juvenile sawfish, and juvenile sawfish may be affected by the proposed action. Current research demonstrates the movements ofjuvenile sawfish are restricted to relatively small areas and as juveniles increase in size, their home range area increases corresponding to ontogenetic changes in their

6 development. The home ranges for all size classes ofjuveniles in this recent study were between 4,264 and 104,173 ,2m with the core areas of usage patterns markedly smaller (415-7,541 2).m Furthermore, 3 tracking for both size classes ofjuveniles revealed preferences of movement patterns from acoustical small juveniles (less than 100 cm stretched total length [STL]) for shallow mud banks or sandbars in protected bays and river mouths, while medium to large juveniles (greater than 100 cm STL) prefer a more diverse range of habitats. Juvenile sawfish of both size classes may occupy the same general area for several months before expanding their home 4range. Juveniles also show a close association with different habitat features such as depth, proximity to shore, a mud/sand substrate, and proximity to 5-6 mangroves and seagrasses that is further corroborated by the National Sawfish Encounter Database. During the proposed actions, construction related impacts will be restricted to the shorelines and the portions of the waterway in which the riprap will be placed.

Mr. Yankowski’s property along the Peace River has extended shallow, euryhaline bottoms waterward of and adjacent to the impacted areas, thus juvenile smalltooth sawfish that may inhabit portions of the project area will be able to move along shore, away from the construction activity, and return once the in- water construction is finished without traversing deeper waters that could increase predation risk. Therefore, temporary effects from riprap placement wilLbe insignificant. Mangroves that are present within the existing riprap at the north and south property lines will not be impacted by the placement of riprap. Riprap will be hand placed in these areas so that mangroves can continue to recruit within the riprap and expand to provide habitat for juvenile sawfish. Based on this information, we believe habitat related effects of the proposed action on juvenile smalltooth sawfish will be insignificant.

The Poveromo property is located within a man-made, secondary finger canal. The placement of riprap to stabilize the failing seawall at this property will remove the shallow, euryhaline section of the canal in front of this property. No mangroves will be impacted at this property’. Juvenile smalitooth sawfish will still be able to utilize the mangrove shoreline and shallow, euryhaline sections across the canal and north of this property, without having to traverse deeper waters, by continuing to move along the western shore of the canal. Based on this information, we believe habitat-related effects of the proposed action on juvenile smalltooth sawfish will be insignificant.

3.2 Status of Critical Habitat Likely to be Adversely Affected

NMFS believes only smalltooth sawfish critical habitat may be adversely affected by the proposed actions. The project sites are located in the Charlotte Harbor Unit of NMFS-designated critical habitat, described on the following pages. A total area of 1,760 square feet of smalltooth sawfish critical habitat will be permanently lost by the placement of riprap

On September 2,2009, the NMFS issued a final rule (74 FR 45353; see also, 50 CFR §226.218) to designate critical habitat for the U.S. distinct population segment (DPS) of smalltooth sawfish, which was listed as endangered on April 1, 2003, under the ESA. The critical habitat consists of two units: the Charlotte Harbor Estuary Unit, which comprises approximately 221,459 acres (346 )2rni of coastal habitat; and the Ten Thousand Islands/Everglades Unit, which comprises approximately 619,013 acres (967 )2mi of coastal habitat. The term “critical habitat” is defined in Section 3(5)(A) of the ESA as: (1) The specific areas within the geographic area occupied by a species, at the time it is listed in accordance

Simpfendorfer,CA., T.R.Wiley,and B.G.Yeiser. 2010. Improvingconservationplanningfor endangered sawlishusingdata from acoustictelemetry. BiologicalConservation143: 1460-1469. Simpfendorfer,C.A. 2003. Abundance,movement,and habitatuse of the smalitoothsawfish. Final Reportto the NationalMarineFisheriesService,GrantNumberWCI33F-02-SE-0247. Mote MarineLaboratoryTechnical Report(929). Burgess,G.H. et al. September10,2010. NationalSawfishEncounterDatabase(NSED),FinalReport. Wiley,T.R. and C.A. Simpfendorfer. 2010. Usingpublic encounterdatato directrecoveryeffortsfor the endangeredsmalitoothsawfish,Pristispectinata. EndangeredSpeciesResearch,Vol 12: 179-191.

7 with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” is defined in Section 3(3) of the ESA as the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which listing under the ESA is no longer necessary.

This consultation focuses on the Charlotte Harbor Estuary Unit which is located along the southwestern coast of Florida in Charlotte Harbor, Gasparilla Sound, Pine Island Sound, Matlacha Pass, San Carlos Bay, Estero Bay, and the Caloosahatchee River in Charlotte and Lee Counties (See Figure 2). Critical habitat determinations focus on those physical and biological features (essential features) that are essential to the conservation of the species (50 CFR 424.12 (b)). Federal agencies must ensure that their activities are not likely to result in the destruction or adverse modification of the essential features within defined critical, habitats. Therefore, proposed actions that may impact designated critical habitat require an analysis of potential impacts to each essential feature.

The essential features for the conservation of smalltooth sawfish that provide nursery area functions are: (1) red mangroves; and (2) shallow, euryhaline (fluctuating salinity) habitats, characterized by water depths between MHW and 3 feet measured at MLLW. Red mangroves and adjacent shallow euryhaline habitats provide nursery area functions that facilitate recruitment ofjuveniles into the adult population. Thus, these features are essential to the conservation of smalltooth sawfish. One or more of the essential features must be present in a project area for it to function as critical habitat for smalltooth sawfish.

As stated in the final rule designating smalltooth sawfish critical habitat, the following activities, among others, when authorized, funded, or carried out by a federal agency, may destroy or adversely modify critical habitat and include but are not limited to: dredging and filling, other in-water construction (docks, marinas, boat ramps, seawall stabilization, etc.), installation of water control structures, and hard clam aquaculture activities. Notably, all the activities identified that may affect the critical habitat may also affect the species itself, as NMFS errs on the side of the species and assumes that the species is present within the action area of the proposed federal actions, because the action area is located within the range of the species and sightings have been repeatedly noted in the National Sawfish Encounter Database.

This “batched” consultation contains two projects with similar anticipated impacts. The proposed actions will not result in a permanent loss of mangroves. Along the north and south property lines of the Mr. Yankowski property, riprap will be hand placed around the mangrove growing from the existing riprap. The proposed projects will result in a permanent loss of shallow euryhaline feature, between MHW and 3 feet measured at MLLW. We do not expect any impacts to the euryhaline portion of this essential feature because the proposed activities will not affect salinity. The placement of riprap will impact the shallow, euryhaline feature, which could displace or obstruct juvenile smalltooth sawfish movement from forage and refuge habitat and preclude future use of the area as nursery habitat. Therefore, the potential project impacts relative to smalltooth sawfish essential features are presented in the Effects of the Action section (Section 5).

In summary, NMFS has determined that smalltooth sawfish critical habitat is likely to be adversely affected by the proposed action at the two sites due to negative impacts on the shallow euryhaline habitat essential features resulting from riprap placement, such that a total of 1,760 square feet of critical habitat will be permanently destroyed (880 square feet at each site).

8 Capora Ft Myers

of Mexico 036

Figure 2. Smalitooth Sawfish Critical Habitat Map — Charlotte Harbor Estuary Unit

4.0 ENVIRONMENTAL BASELINE

This section is a description of the past and ongoing human and natural factors leading to the current status of the designated critical habitat within the action area. The environmental baseline is a “snapshot” of the action area at a specified point in time and includes state, tribal, local, and private actions already affecting the critical habitat that will occur contemporaneously with the consultation in progress. Unrelated federal actions affecting smalltooth sawfish critical habitat that have completed formal or informal consultation are also part of the environmental baseline, as are federal and other actions within the action area that may benefit the species or its critical habitat. This opinion describes these activities’ effects in the sections below.

9 A wide range of activities funded, authorized, or carried out by federal agencies may affect the essential habitat requirements of smalltooth sawfish. These include dredging, dock/marina construction, bridge/highway construction, shoreline stabilization, breakwaters, impoundment structure (such as an earthen dam/weir/lock system), the installation of subaqueous cables or pipelines, and aquaculture activities. Other federal actions (or actions with a federal nexus) that may affect smalltooth sawfish critical habitat include actions by the Environmental Protection Agency (EPA), Federal Highway Administration (FHWA), Federal Emergency Management Agency (FEMA), the National Park Service (NPS), United States Coast Guard (USCG), and the COE to manage freshwater discharges into waterways; and management of national refuges and protected species by the USFWS.

4.1 Status of Critical Habitat and Smailtooth Sawfish use Within the Action Area

The Charlotte Harbor Estuary Unit is located within Charlotte and Lee Counties. The unit includes Charlotte Harbor, Gasparilla Sound, Pine Island Sound, Matlacha Pass, San Carlos Bay, Estero Bay, and the Caloosahatchee River. The unit is defined by the following boundaries. It is bounded by the Peace River at the eastern extent at the mouth of Shell Creek at 81°59.467W, and the northern extent of the Charlotte Harbor Preserve State Park at 26°58.933N. At the Myakka River the unit is bounded by the SR-776 Bridge and in Gasparilla Sound by the SR-771 Bridge. The COLREGS-72 lines between Gasparilla Island, Lacosta Island, North Captiva Island, Captiva Island, Sanibel Island, and the northern point of Estero Island are used as the coastal boundary for the unit. The southern extent of the unit is the Estero Bay Aquatic Preserve, which is bounded on the south by the Lee/Collier County Line. Inland waters are bounded by SR-867 (McGregor Boulevard) from Punta Rassa Road to SR-80 near Fort Myers, then by SR-80 (Palm Beach Boulevard) to Orange River Boulevard, then by Orange River Boulevard to Buckingham Road, then by Buckingham Road to SR-80, and then following SR-80 until it is due south of the Franklin Lock and Dam (S-79), which is the eastern boundary on the Caloosahatchee River and a structural barrier for sawfish access. Additional inland water boundaries north and west of the lock are bounded by North Franklin Lock Road to North River Road, then by North River Road to SR-31, then by

SR-3 1 to SR-78 near Cape Coral, then by SR-78 to SR-765, then by SR-765 to US-4 1, then by US-4 1 to US-17 (Marion Avenue) in Punta Gorda, then by US-17 to Riverside Drive, and then by Riverside Drive to the eastern extent of the Peace River at 81°59.467W. From the northern extent of the Charlotte Harbor Preserve State Part at 26°58.933N, inland waters are bounded westward along that latitude to Harbor View Road, then by Harbor View Road to US-41, then by US-41 to SR-776, then by SR-776 to the Myakka River Bridge.

Data from juveniles tracked in the Ten Thousand Islands/Everglades Unit indicate they exhibit site fidelity and residency patterns between 15 and 55 days (Wiley 2007). Tracking data also suggest that juveniles exhibit specific movement patterns to avoid predation. For example, a juvenile tracked in the Everglades National Park in the Shark River spent its time moving between a shallow mud bank during low tide and mangrove roots during high tide (Simpfendorfer 2003). Tracking data in the Charlotte Harbor Estuary is currently limited to the Caloosahatchee River and its adjacent canals. Juvenile tracking data from a 60-inch (153 cm) juvenile in this area indicates that the animal remained within water depths less than 3 feet (0.9 m) along a highly modified shoreline (Simpfendorfer 2003). Tracking data indicate the animal spent the majority of its time within man-made canals and adjacent to docks and marinas within the river. A more recent study summarized data collected within a Cape Coral hotspot (locations associated with high catch rates, typically 3-8 individuals have been termed “hotspots”) located in a canal system in the Caloosahatchee River. Data from this study shows that smalltooth sawfish used all of the habitats available to them in the Caloosahatchee River, and used backwater habitats such as red mangrove-lined creeks and seawall canals extensively. Canal usage by individuals overlapped; however, on average the sawfish monitored at the Cape Coral hotspot spent 61 percent of their time in the canal system (Poulakis, Stevens et al. 2010).

10 4.2 Factors Affecting Critical Habitat Within the Action Area

Smailtooth sawfish critical habitat is a spatially defined area that includes forage and refuge habitat for juvenile populations of smalltooth sawfish. Removing essential features such as red mangroves and/or shallow, euryhaline habitat between MI-lW and -3 foot MLLW could appreciably impair the ability of the smalltooth sawfish to find areas that will provide protection from predation and foraging opportunities and could impact the habitat’s capability to support population growth of sawfish necessary to recovery. Traditional projects such as dredging, dock/marina construction, bridge/highway construction, shoreline stabilization, breakwaters, impoundment structures (such as an earthen dam/weir/lock system), the installation of subaqueous cables or pipelines, and aquaculture activities are examples of activities that may impact critical habitat.

4.2.1 Federal Actions

Federal agencies that consult on potential impacts to smalltooth sawfish critical habitat include the COE, EPA, NPS, USCG, FHWA, USFWS, and FEMA. Federally-authorized marine construction activities such as dredging, dock/marina construction, bridge/highway construction, shoreline stabilization, breakwaters, impoundment structure (such as an earthen dam/weir/lock system), the installation of subaqueous cables or pipelines, fisheries, and aquaculture activities, all have the potential to impact designated smalltooth sawfish critical habitat.

Numerous formal and informal consultations have been conducted on potential impacts to the species. As of April 1,2011, NMFS has conducted about 23 informal consultations on potential impacts to smailtooth sawfish critical habitat since the designation of smalltooth sawfish critical habitat on September 2, 2009, of which 20 occurred in the Charlotte Harbor Estuary Unit. However, this is only the seventh formal consultation completed on impacts to smalltooth sawfish critical habitat.

4.2.1.1 Dock and Boat Ramp Construction Federal agencies routinely permit residential and commercial docks and boat ramps throughout the action area. A fixed dock built into the bay bottom or floating on the water provide access to the Gulf of Mexico and adjacent waterways, and is generally more preferable than dredging to provide access to boats, especially in sawfish critical habitat where dredging can remove the very shallow habitat needed by juvenile fish. Docks are typically required to be constructed in accordance with NMFS-COE Dock Construction Guidelines in Florida for Docks or Other Minor Structures Constructed in or over SubmergedAquatic Vegetation (SAV),Marsh, or Mangrove Habitat when possible, however the current dock guidelines allow for some amount of mangrove removal. When possible, pilings should be jetted in by hand and the dock should be built out from land using the dock itself as a work platform or using shallow draft barges with small outboard motors while exercising extreme care to assure that no prop washing occurs.

Boat ramps are necessary for public use of the Gulf of Mexico, bays, and rivers. Environmental review of the structures requires that they be designed to minimize direct and secondary impacts to aquatic resources. Boat ramps are typically part of a larger project such as marinas, bridge approaches and causeways where natural and previously created deep-water habitat access channels already exist. Boat ramps can remove both the mangrove and the shallow, euryhaline habitat features of sawfish critical habitat.

4.2.1.2 Marinas All marinas have potential to adversely affect aquatic habitats. Most existing marinas are excluded from sawfish critical habitat, since the essential features tend to be absent. However, expansion of existing marinas and creation of new marinas are currently being considered within the action area. Marinas are typically deeper than the coastal habitat used byjuvenile sawfish as nursery areas, thus, expansion of marinas can result in permanent loss of large areas of nursery habitat. 11 4.2.1.3 Bulkheads and Seawalls Bulkheads and other shoreline stabilization structures are used to protect adjacent shorelines from wave and current action and to enhance water access. These projects may adversely impact smalltooth sawfish critical habitat through direct filling, installation of riprap, dredging, and/or removal of red mangroves. Vegetation plantings, sloping riprap or gabions are generally considered to be environmentally compatible as shoreline stabilization methods over vertical seawalls since they provide shoreline protection and also provide good quality fish and wildlife habitat. However, placement of riprap material removes shallow, euryhaline habitat, an essential feature which is utilized by juvenile smalltooth sawfish for forage and refuge from predators.

4.2.1.4 Cables, Pipelines, and Transmission Lines While not as common as other activities, excavation of submerged lands is sometimes required for installing cables, pipelines, and transmission lines. Construction may also require temporary or permanent filling of submerged habitats. Open cut trenching and installation of aerial transmission line footers are activities that have the ability to temporarily or permanently impact smalltooth sawfish critical habitat. Use of existing rights-of-way is generally preferred to lessen overall encroachment and disturbance of submerged habitats. Depending on the type of utility and the size and length of the conduit, directional drilling or micro tunneling, techniques that allow horizontal, subsurface placement of pipelines, is recommended for crossing sensitive marine habitats or navigation channels since the launch and retrieval shafts are typically constructed on uplands with minimal, if any, environmental impact.

4.2.1.5 Transportation Potential adverse effects from federal transportation projects in the action area include operations of the FHWA and FEMA. Construction of road improvement projects typically follow the existing alignments and expand to compensate for the increase in public use. Transportation projects may impact smalltooth sawfish critical habitat through installation of bridge footers, fenders, pilings, and abutment armoring; or through removal of existing bridge materials by blasting or mechanical efforts.

4.2.1.6 Dredging Riverine, nearshore, and offshore areas are dredged for navigation, construction of infrastructure, and marine mining. The total environmental impact of dredging in the southeast is unknown, but undoubtedly great (SAFMC 1998); (GMFMC 1998); (GMFMC 2005). An analysis of 18 major southeastern estuaries (Orlando, S.P., P.H. Wendt, et al. 1994) recorded over 703 miles of navigation channels and 9,844 miles of shoreline modifications. Habitat effects of dredging include the loss of submerged habitats by disposal of excavated materials, turbidity and siltation effects, contaminant release, alteration of hydrodynamic regimes, and fragmentation of physical habitats (SAFMC 1998); (GMFMC 1998); (GMFMC 2005). Cumulatively, these effects have degraded habitat areas used by juvenile and adult smalltooth sawfish. In the Charlotte Harbor Estuary Unit, dredging to maintain canals and channels that were constructed prior to the critical habitat designation limit the extent of critical habitat to the margins of many waterways, and dredging activity can disturb juveniles that are using adjacent habitats.

4.2.1.7 Impoundments and Other Water-Level Controls Federal agencies such as the COE, FEMA, and USFWS have historically been involved in large water control projects in Florida. Agencies sometimes propose impounding rivers and tributaries for such purposes as flood control, salt water intrusion prevention, or creation of industrial, municipal, and agricultural water supplies. Projects to repair or replace water control structures may affect smalltooth sawfish critical habitat by limiting sufficient freshwater discharge which could alter the salinity of estuaries. The ability of an estuary to function as a nursery depends upon the quantity, timing, and input location of freshwater inflows (USEPA 1994). Estuarine ecosystems are vulnerable to anthropogenic disturbances, primarily decreases in seasonal inflow caused by upstream withdrawals of riverine freshwater for agricultural, industrial, and domestic purposes; contamination by industrial and sewage discharges and agricultural runoff carrying pesticides, herbicides and other toxic pollutants, and eutrophication caused by excessive nutrient inputs from a variety of nonpoint and point sources. 12 4.2.2 State or Private Actions

A number of activities that may indirectly affect smailtooth sawfish critical habitat include impacts from wastewater systems, aquaculture facilities, and residential shoreline stabilization activities (i.e., seawall, riprap). The direct and indirect impacts from some of these activities are difficult to quantify. However, where possible, conservation actions through the ESA Section 7 processes, ESA Section 10 permitting, ESA Section 6 cooperative agreements, and state permitting programs are being implemented to monitor or study impacts from these sources.

Increasing coastal development and ongoing shoreline maintenance will result in increased demands by coastal communities, especially within the Charlotte Harbor Estuary Unit, for periodic privately-funded or federally-sponsored seawall construction and/or repair projects and dredging for canals, docks, and marinas. These activities may affect smalltooth sawfish critical habitat by burying essential features (i.e., red mangrove and shallow, euryhaline habitat) that serve as foraging and refuge areas. Several environmental impacts have been associated with boating activities. These include pollutants associated with boat use and maintenance, pollutants carried by stormwater runoff from marinas, boating support facilities, and physical alteration and destruction of estuarine and marine habitats by boat propellers and dredging for canals and navigation channels. Boat registrations have increased dramatically in Florida, and new boat designs allow ever faster boats to use ever shallower waters, however the current data suggests that boat strikes are not a threat to the species.

4.2.3 Other Potential Sources of Impacts to the Environmental Baseline

Stochastic events, such as hurricanes, are common throughout the range of the smalltooth sawfish, especially in the current core of its range (i.e., south and southwest Florida). These events are by nature unpredictable and their effect on the recovery of the species is unknown; however, they have the potential to impede recovery directly if animals die as a result of them or indirectly if important habitats are damaged as a result of these disturbances. (Simpfendorfer, C.A., P.R. Wiley, et al. 2005) reported on the effects of Hurricane Charley on smailtooth sawfish habitat in Charlotte Harbor. It was unclear if the damage to the mangrove shoreline habitats in Charlotte Harbor had, or would have in the future, negative impacts on its ability to act as a sawfish nursery area. Survey and telemetry studies completed and currently underway are assessing the habitat use patterns ofjuvenile sawfish in this region. The impact of the damage to the shoreline mangrove habitats on smalltooth sawfish is likely to depend on which components of the habitat are most important. (Simpfendorfer 2003) has also hypothesized that juvenile sawfish use the prop roots of red mangroves to help in predator avoidance. In this case, immediate impact may be limited as most of the prop root habitat appeared to remain after the storm, but with high mangrove mortality the decay over time may reduce its availability.

4.2.4 Conservation and Recovery Actions Shaping the Environmental Baseline

Federal Essential Fish Habitat (EFH) consultation requirements pursuant to the Magnuson-Stevens Fishery ConservatiOn and Management Act minimize and mitigate for losses of wetlands and preserve valuable foraging and developmental habitat for juvenile smalltooth sawfish. The Magnuson-Stevens Act defines EFH as “those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity” (16 U.S.C. §1802(10)). The areas of critical habitat for smalltooth sawfish fall under the jurisdiction of the Gulf of Mexico Fishery Management Council (GMFMC). NMFS has designated mangrove and estuarine habitats as EFH, as recommended by the GMFMC. Both essential features are critical components of areas designated as EFH and receive a basic level of protection under the Magnuson-Stevens Act to the extent that the act requires minimization of impacts to EFH resources.

NMFS coordinated with FDEP about Florida Statute 373 .414(5)(c), which requires (or provides an exemption) to persons repairing or replacing a seawall in Florida to place riprap at the toe of the new structure. The intent of the statute is to provide structure for benthic organisms, crustaceans, and fish to 13 occupy, which would help to mitigate for natural habitat removed by vertical seawalls. In situations where a living shoreline is not feasible, placement of riprap in front of vertical seawalls is generally desirable in most cases. However, in areas designated as smailtooth sawfish critical habitat, riprap may impact essential features, thus removing nursery function of the critical habitat from the unit. NMFS is working with FDEP and local county governments (Charlotte, Lee, Collier, Monroe, and Miami-Dade) to ensure that riprap is not required in areas designated as critical habitat for smalitooth sawfish.

5.0 EFFECTS OF THE ACTION ON SMALLTOOTH SAWFISH CRITICAL HABITAT

As discussed above, both essential features within the Charlotte Harbor Estuary Unit may be adversely affected by the proposed projects: red mangroves and shallow, euryhaline habitats characterized by water depths between the MHW line and 3 feet measured at MLLW. Potential impacts to these essential features are analyzed below. This biological opinion does not rely on the regulatory definition of “destruction or adverse modification” of critical habitat at 50 CFR 402.02, which has been invalidated by several federal district and circuit courts. Instead, we have relied upon the statutory provisions of the ESA to complete the following analysis with respect to critical habitat.

5.1 Shallow Euryhaline Habitats

The installation of riprap revetment will result in a permanent loss (combined total of 1,760 square feet) of critical habitat that potentially could have been utilized by juvenile smalltooth sawfish; however, it is unlikely that the loss of this amount of essential feature will prevent juvenile smalltooth sawfish from seeking refuge or foraging in shallow-water, euryhaline habitat immediately adjacent to the impact area. Using remote sensing data acquired from FMRI, we were able to compile information relating to amounts of essential features within smalitooth sawfish critical habitat. The total amount of shallow, euryhaline habitat for Charlotte Harbor Estuary Unit is approximately 132 square miles (84,480 acres). Thus, the proposed permits would not result in a large loss of the shallow, euryhaline habitat essential feature relative to current total shallow habitat available in the Charlotte Harbor Estuary Unit.

The Yankowski property riprap placement will align with the three riprap armored properties to the south (i.e., preventing pockets that will affect canal/channel water quality), avoiding additional adverse effects on the species and its critical habitat. At both ends of the property line, piles of rubble and riprap already exist and would be tied into the proposed riprap placement. Mangroves are becoming established in the existing rubble, so additional riprap will be hand placed around the prop roots so as not to damage them. At the Poveromo property, the riprap would be placed in front of a failing seawall in a man-made residential canal. No mangroves will be impacted. Shallow, euryhaline habitat with mangroves are available to sawfish for protection and foraging at the property to the north and in a section across the canal.

6.0 CUMULATIVE EFFECTS

Cumulative effects include the effects of future state, tribal, or local private actions that are reasonably certain to occur in the action area considered in this opinion. Future federal actions that are unrelated to the proposed action are not considered in this section because they require separate consultation pursuant to Section 7 of the ESA (50 CFR 402.14).

Smailtooth sawfish habitat has been degraded or modified throughout the southeastern United States from agriculture, urban development, commercial activities, channel dredging, boating activities, and the diversion of freshwater runoff. While the degradation and modification of habitat is not likely the primary reason for the decline of smalltooth sawfish abundance and their contracted distribution, it has likely been a contributing factor.

14 No categories of effects beyond those already described are expected in the action area. Dredging, dock/marina construction, bridge/highway construction, shoreline stabilization, breakwaters, impoundment structure (such as an earthen dam/weir/lock system), the installation of subaqueous cables or pipelines, and aquaculture activities will likely continue at current rates, with potential associated loss and degradation of smalitooth sawfish critical habitat; however, these activities are subject to COE pennitting and thus the ESA Section 7 consultation requirement. Construction of seawalls in Florida typically requires the applicant to include riprap to help offset the loss of habitat function encountered from the seawalls vertical features as noted in Florida Statute 373.4 14(5)(c). Removal of this requirement by FDEP and Charlotte County will avoid the additional loss of critical habitat features in future seawall construction projects in this unit. NMFS and the COE are working on developing protocols to minimize essential feature impacts and encourage the use of living shoreline and/or alternative designs in future construction and maintenance of the above mentioned activities within smailtooth sawfish designated critical habitat.

7.0 DESTRUCTION OR ADVERSE MODIFICATION ANALYSIS

This section analyzes the effects of this action, in the context of the status of the critical habitat, the environmental baseline and cumulative effects, relative to the ecological function of designated critical habitat for smailtooth sawfish, i.e., when the essential features will continue to provide juvenile smailtooth sawfish nursery habitat and that the effects of the project will not impede (i.e., delay or limit) the conservation of the smalltooth sawfish.

As discussed in Section 3, smalltooth sawfish generally inhabit the shallow, coastal waters of bays and estuaries found from Texas to New York. NMFS designated critical habitat to protect juvenile nursery areas and assist in the recovery of the species by facilitating recruitment into the adult population. Impacts to designated critical habitat have the potential to further destabilize recovery efforts and stymie chances for recovery. It is important to note that the recovery strategy focused on three main objectives: (1) minimize human interactions and associated injury and mortality; (2) protect and/or restore smalitooth sawfish habitats; and (3) ensure smalltooth sawfish abundance increases substantially and the species reoccupies areas from which it had previously been extirpated (NMFS 2009). Impacts to designated critical habitat from the proposed action will most certainly adversely affect critical habitat by permanently removing the shallow, euryhaline essential feature found within the proposed projects’ footprints.

As outlined above, the proposed projects will not disturb critical habitat for smailtooth sawfish outside each project’s action area, and the projects will not result in adverse effects to juvenile sawfish currently using the Charlotte Harbor Estuary Unit as nursery habitat. The proposed projects will impact a small amount of critical habitat. Because critical habitat is designated to facilitate the conservation of the species, we must evaluate whether this loss of habitat would interfere with the conservation objective of the designated critical habitat — that is, facilitation ofjuvenile recruitment into a recovering adult population. The Smalltooth Sawfish Recovery Plan states that each of nine recovery regions counts toward the downlisting and delisting criteria to ensure the species is viable in the long-term and can maintain genetic diversity (NMFS 2009). For the three recovery regions with remaining high-quality juvenile habitat (recovery regions G, H, and I in southwest Florida; the Charlotte Harbor Estuary Unit is in recovery region G), juvenile habitats must be maintained and effectively protected over the long term at or above 95 percent of the acreage available at the time of listing, which occurred in April 2003. In recovery region G, the recovery objectives also require that the relative abundance of smaLljuvenile sawfish (<200 cm) either increase at an average annual rate of at least 5 percent over a 27-year period, or juvenile abundance is at greater than 80 percent of the carrying capacity of the recovery region.

Each project site will result in the permanent loss of 880 square feet (0.02 acres) for a total of 1,760 square feet (0.04 acre) of designated critical habitat that will be permanently lost and cease to function as critical habitat because of the placement of riprap revetment. As of 2003, the amount of shallow, 15 euryhaline habitat in the Charlotte Harbor Estuary Unit alone is 84,480 acres and the amount of red mangrove shoreline is 5,512,320 linear feet. Our estimates of the current average loss of essential features (red mangrove/shallow, euryhaline habitat) are approximately 0.40 ac per year, based on COE project applications between 2007 and 2009. If we extrapolate this rate back to the time of listing (approximately 8 years), the amount ofjuvenile habitat that has been removed from the Charlotte Harbor Estuary Unit would be approximately 3.2 acres. According to the recovery plan objectives, approximately 80,256 acres of shallow, euryhaline habitat and 5,236,704 linear feet of red mangrove or 95 percent of this habitat must be maintained and effectively protected to facilitate recovery of the sawfish. This requirement is premised on the fact that, although the Charlotte Harbor Estuary critical habitat unit is part of the larger recovery region G, designated critical habitat is currently the only area in which nursery areas have been established and are being protected specifically for that purpose. The proposed projects would result in the loss of only 0.04 acre (1,760 square feet) of critical habitat, and would not interfere with achieving this recovery objective.

Impacts of the project on the other relevant recovery objective, juvenile abundance, is made difficult by the state of available data. Due to the fact that smalltooth sawfish critical habitat was recently designated in 2009 and the smalltooth sawfish recovery plan was also just released in 2009, studies needed to assess some aspects of the recovery plan have just begun. Given the limited duration of a current study to assess annual rate of population increase within recovery regions G, H, I, and J, there is not enough data to discern the trend in juvenile abundance within the recovery region. Though species abundance is generally linked to habitat availability, the permanent loss of 1,760 square feet of critical habitat, particularly in areas that are not documented as hotspots for juveniles, is not likely to impede the 5 percent annual growth mandate for the juvenile population within recovery region G. Available data indicates the adult population in southwest Florida is reproducing and that the adult population trend was slightly increasing over the past decade; in a study conducted between 1989 and 2004 (Carlson, Osborne et al. 2007), smalltooth sawfish relative abundance increased by about 5 percent per year (NMFS 2010). This slight increasing trend can be interpreted as evidence of an increasing juvenile population being recruited into the adult population in southwest Florida.

8.0 CONCLUSION

After reviewing the current status of smailtooth sawfish critical habitat, the environmental baseline, the effects of the proposed action, and the cumulative effects, it is NMFS’ opinion that placement of riprap in the project area will not impede the critical habitat’s ability to support the smalltooth sawfishes’ conservation, despite permanent adverse effects to critical habitat. Following the riprap placement, the majority of the shallow, euryhaline habitat within the project area will be left intact. NMFS concludes the actions, as proposed, are not likely to destroy or adversely modify designated smalltooth sawfish critical habitat.

However, NMFS is concerned about the potential total loss of critical habitat that the current practices and methods of seawall construction and riprap placement could cause in the Charlotte Harbor Estuary Unit. A review of all COE project applications between 2007 and 2009 that involved seawall/riprap construction within the Charlotte Harbor Estuary Unit of smalltooth sawfish critical habitat was performed to ascertain the rate of essential feature removal occurring within critical habitat. While these data do not specify how much shallow, euryhaline habitat is being removed during the construction of these seawalls and associated riprap, for purposes of this analysis we are erring on the side of the species and presuming that all riprap installations are removing shallow, euryhaline habitat. According to the Smalltooth Sawfish Recovery Plan (NMFS 2009), the species recovery is expected to take approximately 100 years (4 generations), assuming that all recovery actions are fully funded and implemented. Using the COE data gathered and applying this number as the expected rate of critical habitat loss per year (0.40 acre per year) and extrapolating outward 100 years, the amount of critical habitat loss would be 40 acres or 0.05 percent of total available shallow, euryhaline habitat. These rates and total amounts of loss of critical habitat loss could measurably impede recovery of the smalltooth sawfish.

16 9.0 INCIDENTAL TAKE STATEMENT

NMFS does not anticipate that the proposed action will incidentally take any species and no take is authorized. However, any takes of sea turtles or smailtooth sawfish shall be immediately reported to takereport.nmfssernoaa.gov, and make reference to the present biological opinion and COE permit number, and consultation must be reinitiated.

10.0 CONSERVATION RECOMMENDATIONS

Section 7(a)(1) of the ESA directs federal agencies to utilize their authority to further the purposes of the ESA by carrying out conservation programs for the benefit of endangered and threatened species. NMFS believes that the COE should implement the following conservation recommendations:

I. Continue public outreach and education on smalltooth sawfish and its designated critical habitat, in an effort to minimize interactions, injury, and mortality.

2. Provide funding to directed research on smalltooth sawfish that will help further our understanding about the species, i.e., implement a relative abundance monitoring program which will help define how spatial and temporal variability in the physical and biological environment influence smalltooth sawfish, in an effort to predict long-term changes in smalltooth sawfish distribution, abundance, extent, and timing of movements.

3. Fund survey to help acquire detailed bathymetry and mangrove coverage within smalltooth sawfish critical habitat.

4. Request the removal of existing riprap from future seawall restorationlreplacement projects within smalltooth sawfish critical habitat.

5. Provide funding to directed research in an effort to develop new technology to support vertical seawalls other than riprap.

6. Provide funding for educational and outreach initiatives that promote alternative shoreline stabilization such as living shoreline approaches that do not require the placement of riprap either alone or in tandem with seawall construction.

In order for NMFS to be kept informed of actions minimizing or avoiding adverse effects or benefiting listed species or their habitats, NMFS requests notification of the implementation of any conservation recommendations.

11.0 REINITL4TION OF CONSULTATION

This concludes NMFS’ formal batched consultation on the Charlotte County shoreline armoring projects. As provided in 50 CFR 402.16, reinitiation of formal consultation is required where discretionary federal agency involvement or control over the action has been retained (or is authorized by law) and if(1) the amount or extent of take specified in the incidental take statement is exceeded, (2) new information reveals effects of the action that may affect listed species and/or critical habitat in a manner or to an extent not previously considered, (3) the identified action is subsequently modified in a manner that causes an effect to listed species or critical habitat that was not considered in the hiological opinion, or (4) a new species is listed or critical habitat designated that may be affected by the identified action.

17 12.0 LITERATURE CITED

Carlson, J. K., J. Osborne, et a!. (2007). “Monitoring the recovery of smalitooth sawfish, Pristis pectinata, using standardized relative indices of abundance.” Biological Conservation 136(2): 195-202.

GMFMC (1998). Generic amendment for addressing essential fish habitat requirements in the following Fishery Management plans of the Gulf of Mexico: Shrimp Fishery of the Gulf of Mexico, United States waters; Red Drum Fishery of the Gulf of Mexico, Reef Fish Fishery of the Gulf of Mexico, Coastal Migratory Pelagic Resources (Mackerel) in the Gulf of Mexico and South Atlantic; Stone Crab Fishery of the Gulf of Mexico; Spiny Lobster Fishery of the Gulf of Mexico; Coral and Coral Reefs of the Gulf of Mexico. Tampa, Florida, Gulf of Mexico Fishery Management Council.

GMFMC (2005). Generic Amendment 3 for addressing EFH requirements, HAPCs , and adverse effects of fishing in the following FMPs of the Gulf of Mexico: Shrimp, Red Drum, Reef Fish, Stone Crab, Coral and Coral Reefs in the GOM and Spiny Lobster and the Coastal Migratory Pelagic resources of the GOM and South Atlantic. Tampa, Gulf of Mexico Fishery Management Council.

NMFS (2009). Smalltooth Sawfish Recovery Plan. Silver Spring, MD.

NMFS (2010). Smalltooth Sawfish 5-Year Review: Summary and Evaluation. P. R. Division. St. Petersburg, Florida: 51.

Orlando, S. P., Jr. , P. H. Wendt, et a!. (1994). Salinity characteristics of South Atlantic estuaries. Silver Spring, Maryland NOAA, Office of Ocean Resources Conservation and Assessment.

Poulakis, G. R., P. W. Stevens, et a!. (2010). Distribution, habitat use, and movements ofjuvenile smalltooth sawfish, Pristispectinata, in the Charlotte Harbor estuarine system, Florida. Port Charlotte, Florida Fish and Wildlife Conservation Commission, Fish and Wildlife Research Institute: 83.

SAFMC (1998). Final Plan for the South Atlantic Region; Essential Fish Habitat Requirements for the Fishery Management Plan of the South Atlantic Fishery Management Council. Charleston, SC, South Atlantic Fishery Management Council.

Simpfendorfer, C. (2003). “Abundance, movement and habitat use of the smalltooth sawfish.” Mote Marine Laboratory Technical Report Number 929.

Simpfendorfer, C. A. (2003). “Abundance, movement and habitat use of the smalltooth sawfish.” Mote Marine Laboratory Technical Report Number 929.

Simpfendorfer, C. A., T. R. Wiley, et a!. (2005). Effect of Hurricane Charley on smalltooth sawfish (Pristis pectinata) nursery habitats in Charlotte Harbor, Florida. Sarasota, Center for Shark Research, Mote Marine Laboratory: 14.

USEPA (1994). Freshwater Inflow Action Agenda For The Gulf of Mexico; First Generation Management Committee Report, U.S. Environmental Protection Agency: 138.

Wiley, T. R., Cohn A. Simpfendorfer (2007). “The ecology of elasmobranchs occurring in the Everglades National Park, Florida: implications for conservation and management.” Bulletin of Marine Science 80(1): 171-189(119).