UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE Southeast13th Regional Office 263 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 1-96 1, 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/SERJ2O 11/01810) 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: ILU6 22 2011 Table of contents 1.0 CONSUL TA TION HISTORY 3 2.0 DESCRIPTION OF THE PROPOSED ACTIONAND ACTION AREA 4 3.0 STA TUS OF LISTED SPECIES AND CRITICAL HABITAT 5 4.0 ENVIRONMENTAL BASELINE 9 5.0 EFFECTS OF THE ACTION ON SA WFISH CRITICAL HABITAT 14 6.0 CUMULATIVE EFFECTS 14 7.0 DESTRUCTION OR AD VERSE MODIFICATION ANAL YSIS 15 8.0 CONCLUSION 16 9.0 INCIDENTAL TAKE STA TEMENT 17 10.0 CONSERVATION RECOMMENDATIONS 17 11.0 REINITIA TION 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 Approachesfor Streamlining Section 7 Consultation on Hazardous Fuels Treatment Projects (http ://www.fws.gov/endangered/esa-library/pdf/streamlining.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