UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE GREATER ATLANTIC REGIONAL FISHERIES OFFICE 55 Great Republic Drive Gloucester, MA 01930 September 2, 2020 Tammy R. Turley Chief, Regulatory Division New England District U.S. Army Corps of Engineers 696 Virginia Road Concord, MA RE: Reinitiation of Formal Consultation for 10-Years of Maintenance Dredging at Bath Iron Works in Bath, Maine (2020-2029) (NAE-2019-01461) Dear Ms. Turley: Enclosed is the biological opinion (Opinion), issued under Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, as amended, for your (U.S. Army Corps of Engineers) permit (NAE- 2019-01461) to allow Bath Iron Works Corporation (BIW) to perform maintenance dredging at a number of sites in support of their shipbuilding facility in the lower Kennebec River in Bath, Maine from 2020-2029. In this Opinion, we conclude that the proposed action is likely to adversely affect, but not likely to jeopardize the continued existence of the threatened Gulf of Maine DPS of Atlantic sturgeon and endangered shortnose sturgeon. We also conclude that the proposed action may affect, but is not likely to adversely affect the endangered Gulf of Maine DPS of Atlantic salmon, critical habitat designated for the Gulf of Maine DPS of Atlantic salmon, and critical habitat designated for the Gulf of Maine DPS of Atlantic sturgeon. Our Opinion includes an Incidental Take Statement (ITS), which is an exemption from the prohibition of take of listed species. Incidental take is defined as “take of listed fish or wildlife species that results from, but is not the purpose of carrying out an otherwise lawful activity conducted by a Federal agency or applicant” [50 CFR §402.02]. “Otherwise lawful activities” are those actions that meet all State and Federal legal requirements, including any state endangered species laws or regulations, except for the prohibition against taking in ESA Section 9. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency action is not prohibited under the ESA, provided that such taking is in compliance with the terms and conditions of this ITS. The ITS specifies reasonable and prudent measures (RPMs) necessary to minimize and monitor take of shortnose and Atlantic sturgeon. The measures described in the ITS are non- discretionary, and must be undertaken by you so that they become binding conditions for the exemption in section 7(o)(2) to apply. You have a continuing duty to regulate the activity covered by the ITS. If you (1) fail to assume and implement the terms and conditions or (2) fail to require any contractors to adhere to the terms and conditions of the ITS through enforceable terms that are added to permits and/or contracts as appropriate, the protective coverage of section 7(o)(2) may lapse. In order to monitor the impact of incidental take, you must report the progress of the action and its impact on listed species to us as specified in the ITS [50 CFR §402.14(i)(3)] (See U.S. Fish and Wildlife Service and National Marine Fisheries Service’s Joint Endangered Species Act Section 7 Consultation Handbook (1998) at 4-49). This concludes formal consultation on the proposed action. 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 taking specified in the incidental take statement is exceeded; (2) new information reveals effects of the action that may not have been previously considered; (3) the identified action is subsequently modified in a manner that causes an effect to listed species; or (4) a new species is listed or critical habitat designated that may be affected by the identified action. In instances where the amount or extent of incidental take is exceeded, section 7 consultation must be reinitiated immediately. Once you have had an opportunity to review the Opinion, we hope to have a future conversation with you to discuss our Conservation Recommendations. Section 7(a)(1) of the ESA places a responsibility on all federal agencies to “utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species.” Conservation Recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information. As such, we suggest that you, consistent with your authorities, take implementation of our Conservation Recommendations under consideration. Thank you for working cooperatively with my staff throughout the consultation process. We look forward to continuing to work cooperatively with your office to minimize the effects of maintenance dredging of the BIW facility on listed species and critical habitat. Should you have any questions about this correspondence please contact Zach Jylkka at (978) 282-8467 or by e- mail ([email protected]). Our Habitat Conservation Division (HCD) is responsible for overseeing programs related to Essential Fish Habitat (EFH) designated under the Magnuson-Stevens Fishery Conservation and Management Act and other NOAA trust resources under the Fish and Wildlife Coordination Act (FWCA). HCD is currently coordinating with you on the EFH consultation. If you have any questions or comments regarding the EFH consultation process, please contact Mike Johnson at (978) 281-9130 or by email ([email protected]). Sincerely, Jennifer Anderson Assistant Regional Administrator for Protected Resources 2 EC: Clement, USACE Johnson, NMFS-HCD Jylkka, NMFS-PRD Mahaney, USFWS File Code: H:\Section 7 Team\Section 7\Non-Fisheries\ACOE\Formal\2020\NAE-2019- 01461 Bath Iron Works Bath, Maine ECO: GARFO-2020-00205 3 NATIONAL MARINE FISHERIES SERVICE ENDANGERED SPECIES ACT BIOLOGICAL OPINION Agency: U.S. Army Corps of Engineers, New England District Activity Considered: Bath Iron Works Maintenance Dredging in Bath, Maine (2020-2029) GARFO-2020-00205 Conducted by: National Marine Fisheries Service Greater Atlantic Regional Fisheries Office Date Issued: _________________________________________September 2, 2020 Approved by: _________________________________________ DOI Address: https://doi.org/10.25923/cmk4-8875 TABLE OF CONTENTS 1.0 INTRODUCTION ............................................................................................................... 5 2.0 ESA Consultation History.................................................................................................... 5 3.0 DESCRIPTION OF THE PROPOSED ACTION ............................................................... 6 3.1 Required Dredging and Disposal of Dredged Material for BIW ..................................... 6 3.2 Action Area ...................................................................................................................... 8 3.2.1 Habitat in the Action Area ...................................................................................... 11 4.0 STATUS OF LISTED SPECIES and CRITICAL HABITAT IN THE ACTION AREA 13 4.1 Species and Critical Habitat Not Likely to be Adversely Affected by the Proposed Action 14 4.1.1 Atlantic Salmon (Gulf of Maine DPS) and Critical Habitat Designated for the Gulf of Maine DPS of Atlantic Salmon ......................................................................................... 14 4.1.2 Critical Habitat Designated for the Gulf of Maine DPS of Atlantic Sturgeon ....... 25 4.2 Species Likely to be Adversely Affected by the Action ................................................ 35 4.2.1 Shortnose Sturgeon ................................................................................................. 35 4.2.2 Atlantic sturgeon ..................................................................................................... 43 5.0 Environmental Baseline ..................................................................................................... 56 5.1 Upstream Dams in the Kennebec River System ............................................................ 57 5.2 Kennebec River FNP ...................................................................................................... 57 5.3 EPA Fish Assemblage Study.......................................................................................... 59 5.4 Scientific Studies ............................................................................................................ 59 5.5 Contaminants and Water Quality ................................................................................... 60 5.6 State or Private Activities in the Action Area ................................................................ 61 5.6.1 Private Recreational Boating .................................................................................. 61 5.6.2 State Authorized Fisheries ...................................................................................... 62 5.7 Status of Shortnose Sturgeon in the Action Area ........................................................... 62 5.7.1 Shortnose Sturgeon in the Kennebec River System ............................................... 62 5.8 Status of Atlantic Sturgeon in the Action Area .............................................................. 68 5.8.1 Atlantic Sturgeon in the Kennebec River System ..................................................